Avoiding Probate in South Carolina

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.

Who Has to Go Through Probate in South Carolina?

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:

• You die leaving behind very little property and qualify as a "small estate," or
• You use the tools discussed below to transfer most of your property at death, and the remainder of your property qualifies as a "small estate."

How to Avoid Probate in South Carolina

Below are the most common probate-avoidance tools. Learn which ones are available in South Carolina.

Living Trusts

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.

Joint Ownership

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:

• Joint tenancy. Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts or other valuable property together. In South Carolina, each owner, called a joint tenant, must own an equal share.

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.)

Payable-on-Death Designations for Bank Accounts

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.

Transfer-on-Death Registration for Securities

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.

Transfer-on-Death Deeds for Real Estate

South Carolina does not allow real estate to be transferred with transfer-on-death deeds.

Transfer-on-Death Registration for Vehicles

South Carolina does not allow transfer-on-death registration of vehicles.

Getting Additional Help With Probate in South Carolina

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.