What Are the Different Ways to Hold Title in South Carolina?

When you close on a home in Greenville, Spartanburg, or anywhere in the Upstate, the excitement usually centers on the physical property, the keys in your hand, the moving trucks navigating the streets of North Main, or the view of Paris Mountain from your new deck. However, the most critical aspect of the transaction isn’t the house itself, but the legal concept of title.

Title is the legal evidence of your right to ownership. How you hold that title determines your legal rights, your ability to sell or refinance, and, crucially, what happens to that significant asset when you pass away. South Carolina real estate laws are distinct from many other states, particularly regarding how married couples own property. A misunderstanding here can lead to unintended probate court battles at the Greenville County Square or complex tax complications down the road.

Whether you are purchasing a historic bungalow in the Alta Vista neighborhood, a lakefront retreat on Lake Keowee, or a new construction home in Simpsonville, understanding the specific ways to hold title in South Carolina is the first step in protecting your investment and your family’s future.

The Foundation of Ownership: Fee Simple Absolute

Before diving into the complexities of co-ownership, it is helpful to understand the baseline of property ownership in South Carolina, known legally as Fee Simple (or Fee Simple Absolute).

If you are the sole owner of a property, you likely hold it in fee simple. This is the most complete form of ownership recognized by law. Think of it as owning the entire “bundle of rights” associated with the land. Unless there are specific restrictions—such as easements for utility lines or restrictive covenants from a Homeowners Association (HOA) in a subdivision like Chanticleer or Spaulding Farm—you have absolute dominion over the property.

The “Bundle of Rights” Includes:

Right of Disposition: You can sell, give away, or transfer the property to anyone you choose.
Right of Exclusion: You can legally prevent others from entering or using your property.
Right of Enjoyment: You can use the property for any legal purpose, subject to local zoning laws in municipalities like Greer or Travelers Rest.
Right of Encumbrance: You can pledge the land as collateral for a mortgage or equity line of credit.

However, life is rarely solitary. Most real estate transactions in the Upstate involve multiple parties—usually spouses, but often business partners, siblings inheriting land, or parents co-signing for children. When more than one person is on the deed, the specific language used to describe that relationship becomes the law of the transaction.

Tenancy in Common: The Default for Co-Owners

Tenancy in Common (TIC) is the default form of co-ownership in South Carolina. If a deed lists two or more names without specific additional legal language, the state assumes the owners are Tenants in Common. This is true even if the owners are legally married.

How Tenancy in Common Works

In a Tenancy in Common, each owner holds an individual, undivided interest in the property. While you both have the right to use the entire property (one person doesn’t own just the kitchen while the other owns the living room), your actual ownership percentages can differ.

For example, if two business partners purchase a rental property near Furman University, one might contribute 80% of the funds and the other 20%. The deed can reflect this ownership split. If no percentage is listed, the law assumes a 50/50 split.

The Probate Trap of Tenancy in Common

The most critical characteristic of Tenancy in Common is the lack of survivorship rights. If you own a home with your spouse as Tenants in Common and you pass away, your share of the house does not automatically go to your spouse. Instead, your 50% interest passes according to your Last Will and Testament.

If you do not have a Will, your share passes according to South Carolina’s intestacy laws. This can lead to a legal nightmare known as the “stranger in the title” scenario.

Scenario: A husband and wife own a home as Tenants in Common. The husband passes away without a Will.
Result: Under South Carolina law, his 50% share might be split between his wife and his children.
The Conflict: The surviving wife now co-owns her own home with her children. If those children are from a previous marriage, or if the relationship is strained, the children could technically force a sale of the home to get their “inheritance” out of the property.

This is why reviewing your deed is essential. Many couples assume they have automatic survivorship rights simply because they are married, but without the correct language in the deed, they are likely Tenants in Common.

How Can My Spouse and I Avoid Probate for Our Home?

What is the best way for married couples to hold title in South Carolina to ensure the house passes to the survivor without probate?

To bypass probate, South Carolina deeds must explicitly state that the property is held as “Joint Tenants with Rights of Survivorship and not as Tenants in Common.” This specific statutory language ensures that when one owner dies, their interest automatically transfers to the surviving owner(s) immediately by operation of law, avoiding the probate process entirely.

Understanding Joint Tenancy with Right of Survivorship (JTWROS)

Joint Tenancy with Right of Survivorship is the most popular choice for married couples in South Carolina, though it is also available to unmarried partners, siblings, or parents and children. It functions on the legal principle of the “unity of ownership.” Both parties own 100% of the property together, rather than owning distinct shares.

Why the Exact Language Matters

South Carolina is strictly formal regarding this designation. S.C. Code § 27-7-40 dictates that the intention to create a right of survivorship must be clear on the face of the deed. A deed that simply says “John and Jane, as joint tenants” is often insufficient and may be interpreted by a court as a Tenancy in Common. To be safe and effective, the deed should read:

“As Joint Tenants with Rights of Survivorship, and not as Tenants in Common.”

Key Benefits for Upstate Families:

Probate Avoidance: The transfer happens automatically. You typically only need to file a certified copy of the death certificate with the Register of Deeds (located at Greenville County Square or the Spartanburg County Courthouse) to update the public record.
Protection for the Survivor: It prevents family disputes by ensuring the surviving partner retains the home, regardless of what a Will might say. The property is removed from the “probate estate,” so it cannot be challenged by disgruntled heirs during the administration of the Will.
Speed and Continuity: In the event of a death, the surviving spouse maintains full control of the property immediately, allowing them to sell or refinance without waiting for a Personal Representative to be appointed by the court.

Important Considerations:

Creditor Exposure: If one joint tenant has a major judgment against them (e.g., from a lawsuit or unpaid debt), a creditor could potentially force the partition or sale of the property to satisfy the debt, affecting both owners.
Unilateral Severance: In South Carolina, a joint tenancy can be “severed” by one party. If your co-owner sells their interest to a third party without your knowledge, the joint tenancy is broken, and you become Tenants in Common with the new buyer.

The “Tenancy by the Entirety” Confusion

New residents moving to the Upstate from states like North Carolina, Florida, or Virginia often ask for their deed to be titled as “Tenants by the Entirety.”

South Carolina Does Not Recognize Tenancy by the Entirety. In states that have this form of ownership, a married couple is viewed as a single legal entity—a “marital unit.” The primary benefit is that a creditor of one spouse cannot attach a lien to the house because the house is owned by the “unit,” not the individual debtor.

Because South Carolina law does not offer this option, simply being married and buying a house together does not shield the property from one spouse’s individual creditors.

The Implication: If one spouse is a high-liability professional (like a surgeon or business owner) and gets sued, the family home could theoretically be at risk even if the other spouse had nothing to do with the liability.
The Solution: For couples concerned about asset protection, simply relying on the deed is not enough. You may need to explore holding the property in a specialized trust or ensuring you have adequate umbrella insurance coverage.

Should I Add My Adult Child to My Deed?

Is it a good idea to add my child to my deed now so they get the house automatically when I die?

Generally, no. While adding a child to a deed as a Joint Tenant does avoid probate, it exposes your home to your child’s creditors, divorce proceedings, and lawsuits. Furthermore, it can result in a significant tax disadvantage for your child by eliminating the “step-up in basis,” potentially causing them to owe substantial capital gains taxes when they eventually sell the property.

Why “Do It Yourself” Estate Planning Backfires

Many parents in Anderson and Greenville try to “keep it simple” by going to the deed office and adding their son or daughter to the title. While well-intentioned, this creates immediate co-ownership, meaning you lose full control of your home. You cannot sell or refinance the property later without your child’s signature.

The Hidden Risks:

The “Divorce” Risk: If your child gets divorced, their ownership interest in your house acts as an asset in their marital estate. Their ex-spouse could potentially claim a portion of the equity in your home.

The “Car Accident” Risk: If your child causes a serious accident and is sued, a judgment lien could be placed on your home because your child is a legal co-owner.

The Tax Problem (Step-Up in Basis): This is the most costly error. If you leave your home to your child in your Will or a Revocable Trust, they receive a “step-up in basis” to the property’s value at the time of your death. If you give them an interest while you are alive, they inherit your original “tax basis” (what you paid for it).

Example: You bought a house in North Main for $100,000 in 1990. It is now worth $600,000.
Inheritance: If the child inherits it at death, their tax basis is $600,000. They sell it for $600,000 and pay $0 in capital gains tax.
Lifetime Gift: If you add them to the deed now, they take your $100,000 basis. If they sell it after you die, they could owe taxes on $500,000 of gain—costing them tens of thousands of dollars.

The Better Alternative

Use a Revocable Living Trust. Transfer the title of the home into the trust. You maintain full control and protection during your life, and the child inherits the property instantly upon your death, bypassing probate and preserving the tax benefits.

Heirs’ Property: A Unique South Carolina Challenge

In the Lowcountry and increasingly in rural parts of the Upstate—such as Slater-Marietta, Travelers Rest, and rural Spartanburg County—”Heirs’ Property” is a significant legal issue. This occurs when a property owner dies without a Will (intestate), and the land passes to their spouse and children as Tenants in Common.

Over several generations, if those children also die without Wills, the ownership fractures into dozens or even hundreds of descendants, each owning a tiny fractional interest in the land.

The Vulnerability: Historically, any one of those distant heirs could force a “partition sale” of the entire property. Developers would sometimes buy a small interest from a distant relative and then force the court to auction the entire farm, often resulting in families losing ancestral land for pennies on the dollar.
The Legal Update: South Carolina has enacted the Uniform Partition of Heirs Property Act to provide some protections, including the right of other family members to buy out the heir wanting to sell and requiring open-market appraisals rather than fire-sale auctions.
Prevention: The only way to prevent this fragmentation is clear estate planning. If you discover you have an interest in Heirs’ Property, it is vital to work with an attorney to consolidate title or establish a trust or LLC to manage the land for the family’s benefit.

Advanced Ownership: Trusts and LLCs

For many of our clients, holding title in their individual names is simply not the best strategy for their financial goals.

Revocable Living Trusts: The Gold Standard

Transferring your real estate into a Revocable Living Trust is often the most effective way to manage a family home.

Privacy: Unlike a deed or probate file, which are public records available to anyone with an internet connection, a trust agreement is private.
Incapacity Planning: If you suffer a stroke or develop dementia, your named Successor Trustee can step in to manage the property (pay taxes, maintain insurance, or sell it to pay for care) without needing a court-appointed conservator.
Funding the Trust: Creating the trust is not enough; you must “fund” it. This requires executing a new deed transferring the property from “John and Jane Doe” to “John and Jane Doe, Trustees of the Doe Family Trust.”

Limited Liability Companies (LLCs) for Investors

If you own rental properties—perhaps a condo near Clemson University for student housing or a commercial space in downtown Greer—holding title in an LLC is standard recommendation.

Asset Segregation: An LLC separates your personal assets (your home, car, savings) from the liabilities of the rental property. If a tenant slips and falls at the rental and sues, they are generally limited to the assets inside the LLC, protecting your personal nest egg.
Operational Formality: To maintain this protection, you must treat the LLC like a real business. This means having a separate bank account for the property and not commingling personal funds with rental income.

Can I Change How I Hold Title After Closing?

I already bought my house years ago. Is it too late to change from Tenancy in Common to Joint Tenancy or to put it in a Trust?

No, it is not too late. You can change how you hold title at any time, provided all current owners agree to the change. This is accomplished by preparing and recording a new deed that supersedes the previous one. This is a common and relatively simple legal procedure often done for estate planning purposes.

Common Scenarios for Changing Title:

The Newlyweds: You bought a house when you were single, and now you want to add your new spouse to the deed to create a Joint Tenancy with Right of Survivorship.
The Divorce: You are divorcing and need to remove an ex-spouse from the title (usually in conjunction with refinancing the mortgage) or sever a Joint Tenancy to become Tenants in Common pending the sale of the home.
The Estate Plan: You are establishing a trust and need to retitle your primary residence and vacation home into the name of the trust.

A Warning on “Quitclaim” Deeds

You may hear friends or online forums mention “Quitclaim Deeds” (often mistakenly called “Quick Claim” deeds) as an easy fix. While they are simple, they offer no warranty of title.

In South Carolina, using the wrong type of deed can cause title insurance issues later. For example, if you Quitclaim a property to your trust, you might inadvertently void your title insurance policy depending on the insurer’s terms. Attorneys typically prefer using a General Warranty Deed or a specific Title to Real Estate deed that maintains the chain of title warranties, ensuring that if a boundary dispute arises from 20 years ago, you are still covered.

Furthermore, drafting these deeds yourself is risky. A mistake in the “derivation clause” (the legal text linking the new deed to the old one) or the legal description can cloud the title, effectively freezing your ability to sell the home until you pay for expensive corrective litigation (Quiet Title Action).

Securing Your Legacy in the Upstate

Your home is likely the most valuable asset you will ever own. The difference between a “Tenancy in Common” and a “Joint Tenancy” creates two completely different futures for your family: one involving probate court, delays, and potential conflict, and one offering a seamless, private transition of wealth. At the De Bruin Law Firm, we believe that real estate in South Carolina is more than just land; it is your legacy. Whether you are closing on your first home, looking to add a spouse to your deed, or organizing your estate plan to avoid probate, we are here to ensure your legal foundation is solid.

If you are unsure how your current deed is drafted or if you need assistance with a real estate transaction in Greenville, Spartanburg, or the surrounding areas, we invite you to contact us. Let us help you ensure that the title to your home reflects your true intentions for your property and your family.