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Welcome to our Library, which provides legal information on topics related to the firm's practice areas. This information is not meant to be a substitute for receiving personal legal advice from an attorney. For specific inquiries about legal issues, we invite you to contact us at (843) 626-9000. We update this section throughout the year, so please check back for new articles. We also welcome suggestions on topics for future articles and news.
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Jeffcoat Law Firm Article
Determining the Best Way to Own Real Estate in South Carolina
By Otis Allen Jeffcoat, III
Before purchasing Real Estate in South Carolina, consider these points:
If you want to buy property in two or more individual names, you have two choices (tenancy by the entireties has been abolished in South Carolina):
- Joint Tenants with Right of Survivorship
- requires special language to be inserted in the deed by which you acquire title to the property
- on the death of the first owner, the survivor automatically takes title to the deceased owner’s interest in the property, regardless of the provisions of the deceased owner’s will
- the transfer of title due to death of the first owner avoids probate on the first death
- Tenants in Common
- requires no special language to be inserted in deed; this is the default form of ownership when multiple purchasers are listed on a deed
- on the death of the first owner, the title to the deceased person’s property does not automatically pass to the surviving owner; the provisions of the deceased person’s will determine ownership of the deceased person’s interest in the property. In the absence of a will, the property passes according to the South Carolina intestacy statutes
- the transfer of title due to the death of the first owner (whether by will or intestacy) passes through probate in South Carolina
If you are a resident of a state other than South Carolina, and wish to purchase real estate in South Carolina, you should consider the effect of death of an owner on the ability to sell or refinance the property. In many cases, joint tenancy with right of survivorship is the preferred way to own property for this reason.
EXAMPLE: John and Mary Smith decide to purchase a second home or investment property in South Carolina, and want to take title in both names
If John and Mary take title as tenants in common (no special language in their deed), and John later dies, Mary may have some difficulty selling or refinancing the property, depending upon the laws of their home state, whether John has a will, and the provisions of John’s will. In many cases, before the property can be sold, some type of probate proceeding in South Carolina will be necessary.
If John and Mary take title as joint tenants with right of survivorship (requires special language in their deed), and John later dies, Mary should be able to sell or refinance the property virtually immediately, so long as she can produce a certified copy of John’s death certificate. There will not be any need for a probate proceeding in South Carolina on John’s death.
Sometimes, the choice between these forms of ownership is dictated by estate planning concerns. For married couples with taxable estates (probate and non-probate assets, plus life insurance proceeds) larger than $675,000, it is often important to have a surviving spouse not end up owning much or all of their deceased spouse’s property. Instead, the will (or trust) of the first spouse to die may provide that their property (up to the $1,500,000 exemption amount) is placed into a "credit shelter trust" or "bypass trust" (which trust can be devoted exclusively to the support of the surviving spouse) rather than in the spouse’s name to avoid the burdensome impact of estate taxes on the assets of the surviving spouse when the surviving spouse dies. Because joint tenancy with right of survivorship effectively thwarts any provisions of a person’s will to the contrary, often a tenancy in common is the preferred ownership form of ownership when the couple’s estate is a large one.
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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