Detailed Answer
Short answer: Usually no — assets that pass automatically by right of survivorship do not become part of the decedent’s probate estate and therefore typically are not listed as estate assets on a probate inventory. However, you should carefully document and disclose those transfers when appropriate to the court or creditors because exceptions and practical issues can arise.
How right-of-survivorship (ROS) property works in practice
When property is owned jointly with a right of survivorship (for example, joint tenancy with right of survivorship, or an account titled to two people as joint tenants), the ownership interest of the decedent passes immediately to the surviving joint owner by operation of law. That transfer happens outside of probate.
Examples:
- Real estate titled as joint tenants with right of survivorship: the surviving joint tenant becomes sole owner on the decedent’s death.
- Bank account titled JTWROS or an account with a named Payable-on-Death (POD) beneficiary: funds pass to the survivor or named beneficiary without probate.
What the personal representative typically includes on the inventory
Personal representatives in South Carolina are required to file inventories and make disclosures about estate property under the probate statutes found in Title 62 of the South Carolina Code. The inventory requirement is aimed at identifying assets that belong to the estate for distribution to heirs and for payment of debts and taxes. Because ROS assets pass outside probate, they are generally not “estate” assets for distribution and so are not included as part of the probate estate’s assets on the inventory in the same way that assets owned exclusively by the decedent would be.
That said, best practice and common court expectations often require one of two approaches:
- Do not list ROS property as an asset of the estate, but disclose it separately. Many personal representatives include a short schedule or note in the probate filings that identifies property titled jointly and states that those items passed to the surviving joint owner by operation of law.
- If the court or the probate clerk’s office requests a complete accounting, or if the estate has creditor claims or tax questions that could be affected by transfers, provide documentation showing the basis for the out-of-probate transfer (e.g., title, account statements, or death certificate).
When you should include or otherwise report ROS assets
Include or report ROS assets in probate-related filings when any of the following apply:
- There is a creditor claim or other dispute that could reach the autotransferred asset (creditors sometimes investigate recent transfers).
- The decedent’s contribution to the joint property is in question (for instance, the decedent supplied all the funds to buy an asset that later was titled jointly).
- The court specifically asks for a full disclosure of all assets the decedent owned or used (some judges or clerks prefer the disclosure even of assets that passed outside probate).
- Someone is challenging the survivorship right (allegations of fraud, undue influence, or that the joint title was only for convenience).
Practical steps to take
1) Determine how each asset was titled. Look at deeds, account titles, beneficiary designations, and account forms.
2) Gather proof. Keep copies of the title documents, beneficiary forms, and the death certificate. Those items demonstrate whether an asset transferred by right of survivorship.
3) Disclose as needed. If you file a probate inventory, consider adding a short supplemental schedule titled something like “Assets Passing Outside Probate (Right of Survivorship / POD)” that lists the item, the surviving owner, and the record (deed or account number).
4) Don’t move money or real estate until you understand your role. If you are the surviving joint owner, you typically can deal with the asset; if you are the personal representative and not the joint owner, do not treat ROS property as estate property.
5) If creditors are likely or if someone contests an ROS transfer, consult a probate attorney promptly.
Relevant South Carolina law
South Carolina’s probate statutes govern the duties of personal representatives and inventories. See Title 62, Chapter 3 of the South Carolina Code for provisions on administration, inventories, and fiduciary duties: https://www.scstatehouse.gov/code/t62c003.php. Those provisions explain the court’s inventory and reporting framework, and they are the starting point for understanding what you must file with the probate court.
Helpful Hints
- Verify title before you act: look at deeds and account titles to confirm whether an asset was held jointly with survivorship rights or had a beneficiary designation.
- Document transfers: keep copies of recorded deeds, account records, and the death certificate to show why property did not enter probate.
- Disclose in writing if unsure: include a short schedule of out-of-probate assets in your probate filings so the court and creditors see your good-faith disclosure.
- Avoid making withdrawals or transferring estate funds that you are not authorized to handle.
- If the decedent’s contribution to a joint asset was substantial, consider whether a claim could be made against the surviving co-owner and get legal advice.
- If anyone is disputing the survivorship transfer or alleging fraud, get a South Carolina probate lawyer involved early.
Quick hypothetical
Hypothetical: Alice and Bob held a bank account as joint tenants with right of survivorship. Alice dies, and the bank makes Bob the sole owner. Bob is named personal representative of Alice’s probate estate. Because the account passed to Bob automatically, Bob does not list the account as a probate asset to be distributed under Alice’s will. But when Bob files the probate inventory, he includes a short note identifying the joint account and referencing the account number and the bank statement showing the automatic transfer. That disclosure prevents surprises for creditors and shows transparency to the court.
Disclaimer
This article is for general informational purposes only and is not legal advice. I am not a lawyer. For advice about a specific situation under South Carolina law, consult a licensed South Carolina probate attorney.