Probate court proceedings (during which a deceased person's assets are transferred to the people who inherit them) can be long, costly, and confusing. It's no wonder so many people take steps to spare their families the hassle. Below, learn who has to go through probate in South Carolina, and your options for avoiding a long and drawn-out probate process.
Not all estates need to go through the probate process. If most of a deceased person's property was held in one or more of the ways discussed below, the estate might be able to bypass probate court.
For example, if you use a living trust that holds all of your property (and distributes it after you die), you won't need to worry about probate.
In addition, South Carolina offers some probate shortcuts for small estates (under a certain value). These procedures allow you to skip probate or use a very streamlined version of it, and is available if:
Below are the most common probate-avoidance tools. Learn which ones are available in South Carolina.
In South Carolina, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In South Carolina, this form of joint ownership with right of survivorship is available:
In South Carolina, to hold real estate in joint tenancy, the deed should use the words "as joint tenants with rights of survivorship, and not as tenants in common," just to make it crystal clear. (S.C. Code Ann. § 27-7-40.)
In South Carolina, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
South Carolina lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
South Carolina does not allow real estate to be transferred with transfer-on-death deeds.
South Carolina does not allow transfer-on-death registration of vehicles.
For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).
Learn how to get an attorney's help with probate avoidance at How to Find an Excellent Lawyer.