With or without a will, your family will be faced with a Probate Court delay before your property is legally distributed following your death. Real property in joint ownership with right of survivorship and joint accounts or payable on death accounts do not pass through probate. Although jointly owned property is not part of your probate estate, it is part of your taxable estate, and therefore cannot be ignored when making an estate plan.
Because property held in joint ownership with survivorship does not pass through probate, you may be tempted to use joint ownership to distribute your estate instead of a will, with the idea of sparing your family the delay of probate court proceedings. This may or may nor be prudent depending on your personal circumstances. It may be better to set up a trust to handle the property and help avoid probate.
Joint ownership is a fixed and rigid system that does not allow for changes in circumstances. It may give another person equal control during your lifetime over whatever property you decide to place in joint ownership. For example, a joint owner of your bank account can write checks and use all the money in that account while you are still living without your permission, even though you may intend for that person to have the money in that account only after your death.
If you put real estate in joint ownership with the right of survivorship, you must do so by a deed, and South Carolina is very strict as to exactly what words must be used in making such a deed. Once the real estate is in joint names with right of survivorship, if you ever decide to sell or mortgage the real estate, you must have the permission of the other person whose name you put on the survivorship deed.
Adding a name to a title or deed to create a joint ownership of real estate may negatively affect your Medicaid or other benefit eligibility, since the property will be treated as an asset for each owner.
A husband and wife who own everything jointly will still need a will in the event they die simultaneously or to dispose of assets on the survivor’s death.
Additionally, if you use a will to leave your property to someone, you can always change the will or sell the property. Once you have deeded the property to be owned jointly with or without survivorship, you must have the consent of the joint owner to sell the property. Moreover, you cannot leave such property in your will to anyone unless you survive the co-owner.
Keep in mind that using joint ownership as a means of helping your family avoid probate after your death may result in causing you considerate problems in your lifetime. Used in addition to a will, however, joint ownership can be a useful device in helping distribute your estate after you die, but be certain that you know the consequences of joint ownership.
Again, as with any aspect of estate planning, you should consult with an attorney and other qualified professionals before making any final decisions.
South Carolina Senior Citizens’ Handbook - A Guide to Laws and Programs Affecting Senior Citizens South Carolina Bar Public Services Division and the Lieutenant Governor’s Office on Aging