Benefits And Pitfalls Of Transferring Property Through Joint Ownership
Transferring property when its held jointly can come with certain complications. Joint ownership is a term that arises when more than one person owns property. And, ultimately, it can be used as a simple and cost-effective way to transfer property after death. For example, a parent who wants to make sure that an adult child inherits money in a bank account can add the adult child’s name as a joint owner of the account. When the parent passes away, the adult child automatically becomes sole owner of the account and there will be no need to open a probate estate to transfer the money.
Transfer Property
Under South Carolina law, people can also transfer real estate after death by adding someone to the deed as a joint tenant with rights of survivorship. By adding a second person to a deed as a joint tenant with rights of survivorship, the real estate will automatically belong to the surviving owner when the other owner passes away. The surviving owner will only need to file a certified copy of the death certificate with the Register of Deeds for the county where the real estate is located.
When property is jointly owned, there is no need to go through probate to transfer the property. By avoiding probate, the property is transferred quickly and the costs of opening a probate estate are avoided. However, there are potential problems with adding another person’s name to your property.
Potential Problems With Joint Ownership
One potential problem is that the other person actually owns the property also. That ownership gives the second owner certain rights to the property that the initial owner might not want. For example, both owners of a bank account have the right to withdraw money from the account. In the perfect world where everyone can be trusted, that will not be a problem. Unfortunately, there are some people who will freely spend the funds in the bank account even if they were only named on a bank account for estate planning purposes.
There are also potential problems with joint real estate ownership. If you add someone’s name to the deed to your home for estate planning purposes and later decide to sell the home, the other owner will need to sign off on the sale also. A problem will arise if the joint tenant does not want to sell the property.
Can A Last Will And Testament Override Joint Ownership In South Carolina?
When people begin planning their estate, they often assume that writing a last will and testament is the ultimate tool for distributing all of their property. However, estate planning law has specific rules regarding how property is titled. A common question for property owners in South Carolina is whether a will can override the rules of joint ownership.
Understanding Joint Tenancy with Right of Survivorship
To understand how a will interacts with shared property, you must first look at the form of ownership. In South Carolina, property owned by two or more people is frequently held as a joint tenancy with right of survivorship, governed under the principles outlined in [South Carolina Code of Laws Section 27-7-40].
Under this legal arrangement, when one co-owner passes away, their ownership interest automatically transfers to the surviving owner or owners. This happens instantly by operation of law. Because the transfer occurs automatically at the exact moment of death, the deceased person no longer holds an interest in the property to give away.
The Legal Power of a Will
A last will and testament only governs probate assets—meaning property that is owned solely in the deceased person’s name and does not have a designated beneficiary or automatic transfer mechanism attached to it, as structured under [South Carolina Code of Laws Section 62-2-805].
Because property held in joint tenancy with right of survivorship bypasses probate entirely, the instructions written inside a last will and testament generally cannot override it. If a will states that a person’s share of a jointly owned house should go to their children, but the deed is held as joint tenants with right of survivorship with a spouse, the surviving spouse will legally receive the property regardless of what the will says.
Exceptions and Tenancy in Common
There is an important distinction to make regarding different types of shared ownership. In South Carolina, if property is owned as a tenancy in common rather than a joint tenancy, the rules change entirely.
Tenants in common do not have a right of survivorship. When a tenant in common dies, their fractional share of the property does not automatically go to the other owners. Instead, that share becomes part of their probate estate and is distributed according to the instructions in their last will and testament, or by state intestacy laws if there is no will.
Why Careful Estate Planning Matters
Because property deeds and beneficiary designations override wills, it is crucial to ensure that your legal documents match your actual intentions. Many families run into unexpected conflicts because a parent assumed a will could fix an outdated deed.
If you want your jointly owned property to be distributed differently, you must update the property deed itself or work with an attorney to establish an alternative estate planning vehicle, such as a revocable living trust. Simply writing a new clause into your will will not be legally sufficient to change the outcome of a survivorship deed in South Carolina.
Estate Planning Documents
When developing an estate plan, it is important to make sure that all of your estate planning documents are consistent to avoid future problems. Dispute with heirs may arise if your will states that one heir will receive all of your money although a different heir is named as a joint owner of your bank account. It is very important to speak with an estate planning attorney to make sure that you do everything possible to avoid disputes after your death.
Contact An Attorney In Greenville For Help
At the De Bruin Law Firm in Greenville, South Carolina, our estate planning attorneys can help you to determine if adding another person’s name to your property is in your best interest. Our estate planning attorneys can also prepare any necessary deeds or other conveyancing documents. In the event there is a dispute resulting from the ownership or transfer of property, our estate planning attorneys will aggressively represent your interests. Contact the De Bruin Law Firm today to schedule an appointment with one of our estate planning attorneys.
