Dear Prospective Purchaser:
In South Carolina, there are different ways to title property. The decision as to how title should be taken is important because it affects legal rights for various purposes. Specifically, the manner in which you hold title will impact your estate plan. This memorandum provides a brief outline of the alternative ways to hold real property.
I. Tenants in Common
A tenancy in common is a form of ownership where 2 or more persons (“tenants”) own an undivided fractional interest in the property. The fractional interests need not be equal, but each tenant has an equal right to occupy the whole of the property. The interest of each tenant is freely transferable. In South Carolina, there are no rights of survivorship between the tenants unless special language is utilized. At the death of one of the co-tenants, his or her interest passes according to the deceased co-tenant’s will or by intestate succession if there is no will.
Full probate administration is usually required where an individual dies owning property as tenants in common. The probate administration process typically lasts one year. Probate administration can be avoided through use of “living” or revocable trusts.
II. Joint Tenancy With Rights of Survivorship
Joint tenancy with rights of survivorship is a popular form of ownership particularly between husband and wife. The popularity of the joint tenancy is primarily attributable to the right of survivorship, which makes it a simple and effective probate avoidance device. Simply, when a joint tenant dies, the surviving joint tenant or tenants own the entire interest in the property by operation of law. The deceased tenant’s interest is not subject to disposition by will