Could a South Carolina deed have a photocopy of a certified death certificate attached for a surviving joint tenant?

Plain-English summary

Oconee County's register of deeds asked whether a deed could be recorded with a copy of a certified death certificate attached after a joint tenant died. The AG found no statute generally barring attachments to deeds and no duty for the register to screen an otherwise recordable deed's attachments. The register's recording work was ministerial and did not include deciding the validity of every attached document.

The opinion distinguished recordability from legal effect. For the death filing to conclusively establish the deceased joint tenant's interest passing to the survivor under the cited statute, a certified copy of the death certificate had to be filed. The AG read that requirement as unmet by a photocopy of a certified copy, while its conclusion described that particular copy question as questionable.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the register refuse a deed simply because another document was attached? A: The AG found no general attachment prohibition and said the register could not reject a deed on that ground if the deed itself met recording requirements.

Q: Was a photocopy of a certified death certificate itself a certified copy? A: The opinion read the statute to require certification of the copy being filed and did not view a copy of a certified copy as sufficient for the statute's conclusive effect.

Q: Did recording an attachment prove that title passed to the surviving joint tenant? A: No. The opinion separated permission to record a deed attachment from satisfying the joint-tenancy statute's certified-death-certificate requirement.

Background and statutory framework

The joint-tenancy provision described a filing that conclusively established death and vesting of the deceased tenant's interest by operation of law. The deed-recording provisions addressed what the register had to record. The AG analyzed both because the attorney and register disagreed about filing the attached copy.

Citations and references

The opinion discussed S.C. Code Ann. § 27-7-40 and Section 30-5-90.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-11-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/westmoreland-p-10-11-07-os-8464-attachment-of-death-certificate-to-a-deed.pdf

Original opinion text

October 11, 2007

Ms. Peggy Westmoreland
Interim Register of Deeds
Oconee County
415 South Pine Street
Walhalla, South Carolina 29691
Dear Ms. Westmoreland:
We understand you desire an opinion of this Office concerning the attachment of a death certificate to a deed. You explain: “We have received a deed from an attorney with a copy of a copy of a certified death certificate. He is adamant that he can file that attached to the deed.” In your letter, you cite to section 27-7-40(b) of the South Carolina Code and state “[i]n reading this code section, I feel that the death certificate must be certified whether it is attached to the deed or filed alone, as the previous deed had been joint tenants with right of survivorship.” Moreover, you comment that the attorney you spoke with indicated that anything may be filed as long as it is attached to a deed. Thus, you also question whether this statement is correct. Law/Analysis Chapter 7 of title 27 of the South Carolina Code (2007) governs conveyances of property. Section 27-7-40, in particular, addresses the creation of a joint tenancy with regard to property and subsection (b) deals with how a property interest is vested in a surviving joint tenant following the death of a joint tenant. This provision reads: The surviving joint tenant or tenants may, following the death of a joint tenant, file with the Register of Deeds of the county in which the real estate is located a certified copy of the certificate of death of the deceased joint tenant. The fee to be paid to the Register of Deeds for this filing is the same as the fee for the deed of conveyance. The Register of Deeds must index the certificate of death under the name of the deceased joint tenant in the grantor deed index of that office. The filing of the certificate of death is conclusive that the joint tenant is deceased and that the interest of the deceased joint tenant has vested by operation of law in the surviving joint tenant or tenants in the joint tenancy in real estate.

Ms. Westmoreland
Page 2
October 11, 2007

S.C. Code Ann. § 27-7-40.
Section 30-5-90 of the South Carolina Code (2007), contained in the South Carolina deed recording statutes, states a register of deeds “is required to record in the order of the times at which they may be brought to his office, all marriage settlements and all conveyances and mortgages, renunciations of dower and other writings concerning the titles to lands situate in his county which may be lodged with him to be recorded if the execution of any such writing shall be proved by affidavit of a subscribing witness, or otherwise, as herein provided.” Section 30-5-30 of the South Carolina Code (2007), also contained among the deed recording statutes, sets forth the requirements for the recordation of a deed or any other instrument. This provision does not mention a requirement or prohibition against attaching other documents to the deed. Furthermore, we did not find a statute requiring a register of deeds to screen documents attached to deeds. In prior opinions, we noted “the register of deeds when performing her duties pursuant to the recording statutes should be considered a ministerial officer whose duties are absolute and prescribed by law.” Op. S.C. Atty. Gen., February 10, 2005. Although a register of deeds is charged with the duty to determine whether the instruments to be recorded are in compliance with statutory requirements, he or she does not have the ability to determine the validity of such documents. Op. S.C. Atty. Gen., January 20, 1982. Given that we do not find a provision limiting those items that may be attached to deed submitted for recordation, we do not find a duty on behalf of the register of deeds to screen or prohibit the filing of documents attached to a deed. However, we note that section 27-7-40, which you mention in your letter, specifies the recording requirements in order to conclusively establish that a joint tenant is deceased thereby transferring the deceased joint tenant’s interest by operation of law to the surviving joint tenant or tenants. This provision states that a “certified copy of the certificate of death of the deceased joint tenant” must be filed with the register of deeds of the county in which the real estate is located. S.C. Code Ann. § 27-7-40. Thus, if a surviving joint tenant wishes to conclusively establish the transfer of a deceased joint tenant’s interest to him or her, he or she must file a death certificate in compliance with this statute with the appropriate register of deeds’ office. Whether or not a copy of a certified copy of a death certificate is sufficient to transfer ownership under section 27-7-40(b) depends upon the statutory construction of this provision. The primary consideration when interpreting a statute is to ascertain and effectuate the intent of the Legislature. Sloan v. South Carolina Bd. of Physical Therapy Examiner, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006). “‘If a statute’s language is plain, unambiguous, and conveys a clear meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning.’ Instead, the words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.” Key Corporate Capital, Inc. v. County of Beaufort, 373 S.C. 55, 59, 644 S.E.2d 675, 677 (2007) (quoting Buist v. Huggins, 367 S.C. 268, 276, 625 S.E.2d 636, 640 (2006)).

Ms. Westmoreland
Page 3
October 11, 2007
Section 27-7-40 of the South Carolina Code requires “a certified copy of the certificate of death of the deceased joint tenant” in order to conclusively determine that the interest of the deceased joint tenant is vested in the surviving joint tenant or tenants. According to the plain language used in the statute, a copy of a death certificate may be submitted to meet this qualification. However, we read this provision to require that the copy be certified. Thus, under the scenario you describe, we do not believe a copy of a certified copy of a death certificate is sufficient to meet the requirements of this provision. Accordingly, although we do not find a statutory provision preventing such a document from being filed with a deed, we do not believe a copy of a certified copy of a death certificate for a deceased joint tenant is sufficient to conclusively establish a transfer of ownership from the deceased joint tenant to another joint tenant or tenants under section 27-740(b). Conclusion In our examination of law governing the recording of deeds, we did not find a provision specifically prohibiting the attachment of documents to a deed submitted for recording. Moreover, we did not find a statute placing responsibility on the register of deeds to prohibit deeds from being filed with documents attached. Thus, we do not believe a register of deeds can prevent the filing of deeds with documents attached to them unless the deed itself fails to satisfy the statutory requirements of the deed recording statutes. However, we note that section 27-7-40(b) requires a certified copy of a deceased joint tenant’s death certificate be filed with the register of deeds in the county where the real estate is located in order for the property interest of a deceased joint tenant to pass to the other joint tenant or tenants by operation of law and thus, conclusively establish a transfer of ownership. Nonetheless, whether or not a copy of a copy of a certified copy is sufficient under section 27-7-40(b) to satisfy the requirements to conclusively establish the transfer of title from a deceased joint tenant to another joint tenant or tenants is questionable. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General