Do both co-owners need to sign the deed to move the property into our trusts? – South Carolina

Short Answer

Usually, each co-owner must sign a deed to transfer that co-owner’s interest into a living trust in South Carolina. One co-owner generally cannot sign a deed that moves the entire property into trust unless that person already has authority to sign for the other co-owner (for example, under a valid power of attorney) or the deed is structured to transfer only the signer’s share. The deed also must meet South Carolina execution and recording rules, including witness and acknowledgment requirements, before the county Register of Deeds will record it.

Understanding the Problem

In South Carolina, when two people co-own a rental property and want to “put it into” one or more living trusts, the key question is whether both owners must sign the deed that will be recorded with the county Register of Deeds. The decision point is whether the deed is intended to transfer the entire ownership (both owners’ interests) into the trust(s), or only one owner’s interest. The answer depends on how title is currently held and who is actually conveying an interest.

Apply the Law

In South Carolina, a deed only transfers the interest that the signing grantor actually owns (and has the legal power to convey). If both spouses are co-owners, moving the whole property into trust generally requires both co-owners to sign as grantors (or one to sign for the other under proper legal authority). Separately, South Carolina has strict execution and recording prerequisites: deeds typically must be properly witnessed and acknowledged/proved before they can be recorded in the county where the property is located.

Key Requirements

Correct grantors sign: Each co-owner whose interest is being transferred must sign the deed (or be signed for by an authorized agent). A deed signed by only one co-owner typically transfers only that signer’s interest.
Proper deed execution formalities: A South Carolina deed must be executed with the required witnesses, and it must be acknowledged or otherwise proved in a way that satisfies recording rules.
Record in the right office with required transfer paperwork: The deed is recorded in the county Register of Deeds (or Clerk of Court in counties that handle recording). Many counties require a real estate transfer fee affidavit/value affidavit to be filed with the deed, even when the transfer is exempt from the fee.

What the Statutes Say

S.C. Code Ann. § 27-7-10 (Deed form; witnesses) – Recognizes a deed as effective to convey fee simple if executed in the presence of and subscribed by two or more credible witnesses.
S.C. Code Ann. § 30-5-30 (Prerequisites to recording) – Sets the acknowledgment/proof requirements that must be met before a deed can be recorded in South Carolina.
S.C. Code Ann. § 12-24-10 (Deed recording fee; exceptions) – Imposes the deed recording fee (often called the deed transfer fee) and lists certain exceptions.
S.C. Code Ann. § 12-24-70 (Affidavits) – Requires the Register of Deeds/Clerk of Court to require an affidavit showing value (or stating the exemption reason for exempt deeds), subject to discretionary waiver.
S.C. Code Ann. § 27-7-40 (Joint tenancy with right of survivorship; joinder for encumbrances) – Addresses incidents of joint tenancy with right of survivorship, including limits on one joint tenant acting alone for certain actions.

Analysis

Apply the Rule to the Facts: The rental property is co-owned by a client and spouse, and each has a living trust. If the goal is to transfer the entire rental property title into one or both trusts, both co-owners generally need to sign the deed as grantors, because each spouse owns an interest that must be conveyed. If only one spouse signs, the deed commonly transfers only that spouse’s interest, which can leave the property split between a trust and an individual owner and may defeat the purpose of “fully funding” the trusts.

Process & Timing

Who files: The person handling the transfer (often the owners or their attorney). Where: The Register of Deeds office in the South Carolina county where the rental property is located (some counties use the Clerk of Court for recording). What: A properly prepared deed transferring the owners’ interests to the trustee(s) of the living trust(s), plus any county-required cover sheet and the real estate transfer fee affidavit/value affidavit (even if claiming an exemption). When: There is no single statewide “trust transfer deadline,” but recording should be done promptly after signing so the public record matches the estate plan.
Execution step: The deed must be signed by the correct grantors and completed with the required witnesses and acknowledgment/proof so it is recordable under South Carolina law. If the owners are signing outside South Carolina, the acknowledgment/proof must still meet South Carolina’s recording statute requirements.
Recording step: The signed original deed and required affidavit(s) are delivered (in person or by mail, depending on the county’s procedures) to the recording office with payment of any applicable recording charges and any deed recording fee that applies. After recording, the office returns the recorded deed (or an image/certified copy, depending on local practice).

Exceptions & Pitfalls

Only one co-owner signs: This often results in only a partial transfer (for example, one spouse’s undivided interest goes into trust while the other spouse’s interest stays outside). That can create title and refinancing issues later.
Wrong “to” party on the deed: A common mistake is deeding the property to the trust name alone rather than to the trustee of the trust (as trustee). The deed should match how the trust holds title under South Carolina practice.
Witness/notary problems: South Carolina recording rules are strict. Missing witnesses, improper acknowledgment language, or an out-of-state notarization that does not satisfy South Carolina’s recording statute can lead to rejection by the recording office.
Transfer fee affidavit/value affidavit omitted: Even when the deed is exempt from the deed recording fee, the affidavit is commonly still required to state the exemption reason under South Carolina law.
Mortgage and insurance follow-up: A deed to a trust can trigger lender notice requirements or insurance policy updates. The deed may be recordable, but the transfer should still be coordinated with the loan and insurer to avoid coverage or default disputes.

Conclusion

In South Carolina, transferring a co-owned rental property into living trust(s) by deed usually requires both co-owners to sign, because each owner must convey their own interest (unless one has legal authority to sign for the other). The deed must also be properly witnessed and acknowledged/proved to be recordable, and it is commonly recorded with a transfer fee/value affidavit stating the value or the exemption. Next step: prepare a recordable deed and file it with the county Register of Deeds promptly after proper signing.

Talk to a Estate Planning Attorney

If a co-owned South Carolina rental property needs to be transferred into one or more living trusts, an estate planning attorney can help confirm how title is currently held, draft the deed to match the trust structure, and make sure the signing and county recording requirements are met so the public record matches the estate plan.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.