How Can I Set Up a Joint Revocable Trust to Keep Our Homes Out of Probate? – South Carolina

Short Answer

A couple can create a joint revocable trust and transfer each South Carolina home into the names of the trustees by properly executed deeds, which should be recorded promptly. Signing the trust alone does not avoid probate unless it includes a valid signed declaration that the owners hold identified property as trustees; otherwise, the trustees must receive title before the property owner dies. The trust should also name successor trustees and state who receives or manages each home after both spouses die.

Understanding the Problem

The central question is whether South Carolina spouses can place their homes in one revocable trust so the successor trustee can manage or distribute those properties without a probate transfer. The key issue is whether each home is legally transferred to the trustees, or made subject to a valid written declaration of trust, while the owners have capacity and are still living.

Apply the Law

South Carolina permits an owner to create a revocable trust by transferring property to a trustee or signing a written declaration that the owner holds identified property as trustee. A trust involving real estate must have written evidence signed by the person creating it. A valid trust also requires capacity, an intent to create the trust, identifiable beneficiaries, and duties for the trustee to perform.

Spouses commonly act as the initial settlors, trustees, and beneficiaries of a joint trust. The document should identify each spouse’s contributions, explain whether one or both spouses may amend or revoke particular provisions, name a successor trustee, and provide instructions for the homes after the first and second deaths. Under South Carolina law, each settlor generally controls the portion attributable to that settlor’s contribution when the trust holds property other than community property.

Key Requirements

A valid written trust: The agreement must satisfy the statutory requirements for creating a trust and should identify the settlors, trustees, beneficiaries, trustee duties, amendment rights, successor trustees, and distribution plan.
Properly transferred title: Each owner ordinarily should sign a deed conveying the owner’s interest to the trustees in the title format stated in the trust or certification of trust. Alternatively, South Carolina law permits a signed written declaration that the owner holds identified property as trustee.
Correct execution and recording: A South Carolina deed generally requires two witnesses and proper acknowledgment or proof before it can be recorded with the Register of Deeds or Clerk of Court in the county where the home is located.
Completion before death: The transfer must become effective while the owner is living. A deed should be delivered and lodged for recording promptly; recording protects the conveyance against later purchasers and creditors. A pour-over will may direct an omitted home into the trust, but that home would ordinarily pass through probate first.

What the Statutes Say

S.C. Code § 62-7-401 (Methods of Creating a Trust) – Permits creation by a property transfer or written declaration and requires signed written evidence for a trust involving real estate.
S.C. Code § 62-7-402 (Requirements for Trust Creation) – Requires capacity, intent, a qualifying beneficiary, and meaningful trustee duties.
S.C. Code § 62-7-602 (Revocation or Amendment) – Explains amendment and revocation rights when more than one settlor creates or funds a trust.
S.C. Code § 27-7-10 (Real Estate Conveyances) – Provides that a fee-simple conveyance must be executed in the presence of at least two witnesses.
S.C. Code § 30-5-30 (Recording Requirements) – Sets the acknowledgment or proof requirements for recording a deed.
S.C. Code § 30-7-10 (Effect of Recording) – Protects a real estate conveyance against later purchasers and creditors from the date and time of recording.
S.C. Code § 62-7-1013 (Certification of Trust) – Allows trustees to provide a certification containing key authority and title information instead of disclosing the entire trust.

Analysis

Apply the Rule to the Facts: If both spouses sign a valid joint trust but leave a home titled in their individual names and the trust does not include a valid declaration covering that property, the trust has not been funded with that home and cannot by itself prevent a probate transfer. If they instead execute and deliver a deed conveying the home to themselves as trustees, the successor trustee can generally follow the trust terms after death without obtaining a probate deed.

A second home must receive the same property-specific treatment. Each home’s deed, legal description, ownership history, mortgage, and county records should be reviewed separately; merely listing an address on a trust schedule without valid transfer or declaration language does not replace a deed.

Process & Timing

Who acts: Both spouses if both hold title. Where: The trust is signed privately, while each deed is filed with the Register of Deeds or Clerk of Court for the South Carolina county where that home is located. What: A joint revocable trust, certification of trust when needed, property-specific deed, and usually coordinated pour-over wills. When: Complete the transfer before the titled owner dies and lodge each deed for recording promptly.
Review the current deeds, legal descriptions, mortgages, insurance policies, and each spouse’s ownership contribution. Draft the trust to address cotrustee signing authority, incapacity, amendment rights, the first spouse’s death, the successor trustee, and the final beneficiaries.
Execute each deed with the required witnesses and acknowledgment, then submit it to the correct county recording office. South Carolina directs the recording office to record a properly lodged instrument within 30 days, but priority against later purchasers or creditors begins when it is filed for record.
Confirm that the recorded deed shows the intended trustee title, retain the recorded copy with the estate-planning records, and update insurance and related property records. A certification of trust can confirm trustee authority without placing the trust’s complete distribution terms in the public land records.

Exceptions & Pitfalls

Joint trust terms may not fit every couple: Separate property, different beneficiaries, prior marriages, creditor concerns, or different amendment goals may make separate trusts or more detailed provisions appropriate.
An incorrect deed can create title problems: Errors in the legal description, grantor names, trustee title, signatures, witnesses, or acknowledgment may prevent effective recording. More information appears in this discussion of the deed used to transfer South Carolina property into a living trust.
Out-of-state homes require local review: The law of the state where each home sits controls its deed and recording requirements. Local counsel should handle or review those conveyances.
Mortgages and insurance still matter: The transfer should be coordinated with the lender, title insurer, and property insurer. The owners should verify that coverage and applicable property classifications remain correct.
A revocable trust does not block creditor claims: S.C. Code § 62-7-505 generally leaves revocable-trust property subject to a settlor’s creditors during life and, in some circumstances, after death.
Unfunded property may still require probate: Pour-over wills provide a backup plan, but they do not retroactively turn an individually titled home into trust property. Guidance on coordinating these documents appears in this article about transferring a South Carolina home and adding a pour-over will.
Property-related tax consequences require separate advice: A CPA or tax attorney should review any possible tax, exemption, or reassessment issue before a deed is signed.

Conclusion

A joint revocable trust can keep South Carolina homes out of probate only when the trust is valid and each home is properly transferred to the trustees or made subject to a valid written declaration of trust. The controlling threshold is ownership: signing the trust or merely listing an address on a schedule does not transfer title. Have a South Carolina estate-planning attorney prepare the trust and a compliant deed or other valid transfer instrument for each property before the titled owner dies, and record each deed promptly with the recording office for the property’s county.

Talk to an Estate Planning Attorney

If a couple wants to place one or more homes in a joint revocable trust, our firm has experienced attorneys who can help structure the trust, review existing titles, prepare the required deeds, and explain the funding timeline.

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.