Disclaimer: This article is educational only and not legal advice.
Detailed Answer
Under South Carolina law, certain property avoids probate and passes automatically at death. This occurs when property is held as joint tenancy with right of survivorship, tenancy by the entirety, or when assets have payable-on-death (POD) or transfer-on-death (TOD) designations. For example, a home owned by spouses as tenants by the entirety transfers fully to the surviving spouse without probate (see S.C. Code Ann. §27-3-10 et seq., https://www.scstatehouse.gov/code/t27c003.php).
However, any property that does not have an automatic transfer feature must pass through probate under the South Carolina Probate Code (Title 62). Probate is the court-supervised process for:
- Proving the validity of a will
- Appointing a personal representative
- Collecting and valuing assets
- Paying debts and taxes
- Distributing remaining assets to beneficiaries
For instance, imagine Sarah owned a rental condo solely in her name. She left the condo to her nephew in her will. Because the condo was not held in joint tenancy and lacked a TOD designation, it does not transfer automatically at her death. To transfer that condo, her personal representative must file the will for probate in the probate court of her county of residence (see S.C. Code Ann. §62-2-201 and Chapter 3 administration procedures, https://www.scstatehouse.gov/code/t62c002.php).
Helpful Hints
- Identify non-probate assets first: joint accounts, TOD deeds, life insurance, and retirement plans.
- File the original will with the probate court within 10 days after death in the decedent’s home county (S.C. Code Ann. §62-3-401).
- Your personal representative must obtain Letters Testamentary before handling estate property.
- Prepare an inventory of estate assets and file it with the court (see Chapter 3 of Title 62).
- Pay creditors and final income and estate taxes before distributing assets.
- Consider hiring a probate attorney if the estate is large, complex, or if beneficiaries contest the will.
For more information on will probate and estate administration, visit the South Carolina Legislature website: Title 62, Chapter 2 and Chapter 3.