What Is Tangible Personal Property for South Carolina's Probate Court?

By Erika Johansen

In South Carolina probate, tangible personal property, or "personalty," refers to property that you can touch and move. Classifying something as personal property matters because a will may contain language leaving "personal property" to a beneficiary. Also, when someone dies in South Carolina, the law automatically reserves a portion of her personal property for a surviving spouse or children, but valuable personal property may also carry significant tax liability.

In South Carolina probate, tangible personal property, or "personalty," refers to property that you can touch and move. Classifying something as personal property matters because a will may contain language leaving "personal property" to a beneficiary. Also, when someone dies in South Carolina, the law automatically reserves a portion of her personal property for a surviving spouse or children, but valuable personal property may also carry significant tax liability.

What Is Personalty?

If you can move something, it will almost always be personal property. Clothing, furniture, art, computers, jewelry ... all of these things are your personal property. Personal property also includes larger movable items such as automobiles, livestock and machinery. But if a piece of property is firmly attached to the land it sits upon, the law will generally consider it real property. This difference is perhaps best illustrated by the case of mobile homes and trailers: If the trailer is mobile, designed to move from place to place, the law will consider it personal property. However, if the trailer has been built into a permanent foundation with plumbing and other amenities, the law will consider it real property.

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Financial Holdings

South Carolina law doesn't consider financial holdings to be tangible personal property. For purposes of probate, financial holdings include bank accounts, IRAs and other money accounts. They even include items like stocks or bonds, financial holdings whose ownership is proven by possession of a tangible physical certificate. South Carolina also follows the Uniform Probate Code, which does not consider cash to be personal property. The law is still unsettled on whether computer data constitutes personal property; since so much financial data is now computer-accessible, this may complicate the issue of whether financial information is personal property as well.

Tangible Containers

In a will, the gift of a personal property container, like a jewelry box, generally does not include the contents unless the will's language stipulates those contents. But courts face an interesting question when intangible personal property, such as cash, stock certificates or other evidence of financial holdings, are located in a tangible physical container belonging to the deceased. Does a survivor's personal property right to the container make him the owner of the contents as well? These cases will often turn on specific facts, such as the type of container at issue.

Exempt Property

South Carolina Probate Code gives the surviving spouse of the deceased the right to select up to $5,000 worth of the deceased's personal property for his own. This right to personal property will trump other claims on the estate, except for estate costs such as funeral expenses, debts and taxes. If there's no surviving spouse, any surviving minor or dependent children of the deceased will have the same right. If there's not enough property, they will be able to turn to other types of property to satisfy their $5,000. Both spouses and minor or dependent children must survive the decedent by at least 120 hours to qualify for these rights. Note that the law may also grant other exemptions to surviving spouses and children, such as a homestead exemption that allows them to stay in the family residence.

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References

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