Who Owns a Property During Probate in South Carolina?

During probate, the deceased person’s estate legally owns the property. A court-appointed personal representative (executor or administrator) manages it under court supervision until debts are settled and heirs receive ownership.

Understanding Property Ownership During Probate

When someone dies, their assets—including real estate—enter a legal limbo until probate concludes. In South Carolina, probate ensures debts are paid and property is distributed correctly. But who actually owns the home, land, or vacation property during this process? Let’s break it down.

1. The Estate Holds Legal Ownership

Until probate is complete:

• The property is owned by the estate of the deceased, not the heirs.
• The personal representative (executor or administrator) acts as the estate’s manager, authorized by the Probate Court (S.C. Code § 62-3-701).

Example: If your father owned a Charleston home solely in his name, the estate—not you—legally owns it during probate.

2. The Personal Representative’s Role

The court-appointed personal representative has specific duties:

• Secure the Property: Maintain insurance, pay taxes, and prevent damage.
• Pay Debts: Use estate funds (or sell property, with court approval) to settle creditors’ claims.
• Distribute Assets: Transfer ownership to heirs after the court gives the green light.

Key Limitation: The personal representative cannot gift or sell the property without court permission.

3. Exceptions: When Property Bypasses Probate

Not all property is stuck in probate purgatory. Ownership transfers immediately if:

• Joint Ownership with Rights of Survivorship: A Myrtle Beach condo co-owned by spouses goes directly to the survivor.
• Transfer-on-Death Deed (TODD): South Carolina allows TODDs for real estate, letting owners name beneficiaries who inherit without probate (S.C. Code § 62-6-101).
• Living Trusts: Property held in a trust is owned by the trust, not the estate.

Related article for you:
Who Owns a Property During Probate in the US?

4. Creditors’ Claims and Forced Sales

South Carolina law prioritizes debt repayment:

• Creditors have 8 months to file claims (S.C. Code § 62-3-806).
• If the estate lacks cash, the personal representative may sell the property to pay bills—even if heirs want to keep it.

Example: A family farm in the Upstate could be sold to cover unpaid medical debts.

5. Heirs’ Rights During Probate

Heirs don’t own the property yet, but they have certain rights:

• Request Inventory: The personal representative must provide a list of estate assets.
• Challenge Mismanagement: Heirs can petition the court if the representative acts improperly.
• Claim Homestead Exemption: Surviving spouses or minor children may protect up to $69,680 in home equity from creditors (S.C. Code § 15-41-30).

6. How Ownership Transfers After Probate

Once debts are paid and the court approves the final accounting:

1. With a Will: Property goes to the named beneficiaries.
2. Without a Will: South Carolina’s intestate laws dictate inheritance (e.g., spouse gets 50%, children split the rest).
3. Deed Transfer: The personal representative signs a new deed, filed with the county Register of Deeds.

Timeline: Probate in South Carolina typically takes 6–18 months.

7. Avoiding Probate Delays in South Carolina

To prevent your property from lingering in probate:

• Create a TODD: Name beneficiaries for real estate.
• Establish a Living Trust: Transfer property titles to the trust.
• Joint Ownership: Add a spouse or child with rights of survivorship.

What Happens If There’s a Dispute?

Heirs can contest the will or personal representative’s actions in Probate Court. Common issues include:

• Undue influence over the deceased.
• Failure to follow South Carolina’s probate procedures.
• Mismanagement of property (e.g., neglecting maintenance).

Key Takeaways

• During Probate: The estate owns the property; heirs must wait for court approval to take ownership.
• Personal Representative: Manages the property but can’t sell it without court consent.
• Plan Ahead: Use TODDs, trusts, or joint ownership to bypass probate.