Creating a legally valid South Carolina Will: Important FAQs

One of the most significant legal papers a person can draft throughout their lifetime is a Last Will and Testament. Without a valid Will, a person is said to have died "intestate," and in that case, the state's laws will govern how and to whom their possessions will be distributed.

The beneficiaries of a person who passes away without a Will are unable to contest how the court will divide the decedent's estate under the intestacy statutes. The statutes govern the distribution even if the decedent explicitly indicated different wishes during their lifetime.

South Carolina intestacy laws

Intestate succession laws apply to assets that pass through probate. Since many assets are not subjected to the probate process under specific circumstances, intestate succession laws are not applicable in those cases. Apart from that, who receives what in an intestate succession depends on whether you have living parents, children, or other close relatives when you pass away.

If you are married in South Carolina and pass away without leaving a Will, your spouse's inheritance will rely on whether you have surviving descendants, such as children, grandchildren, or great-grandchildren. If not, your spouse will inherit everything. If you do, half of your intestate property passes to your spouse.

If you pass away without leaving a last Will and testament in South Carolina, your children will get an "intestate share" of your assets. Whether or not you're married and how many kids you have will determine how much each child receives. The state of South Carolina must legally recognize children as your children in order for them to inherit your properties under the intestacy statutes.

Just like your biological children, your lawfully adopted children will receive an intestate share. No automatic distribution will be made to stepchildren or foster children you never formally adopted. Children who you placed for adoption who were subsequently officially adopted by another family will not be entitled to a portion. Only when a grandchild's parent is not still alive to get their part will the grandchild receive a portion.

If you pass away without a South Carolina last Will and testament and have no surviving family members, your assets will "escheat" into the state's coffers. Due to the laws' intent to transfer your property to anyone who is even remotely connected to you, this occurs only extremely seldom.

If you have any legal questions in this regard, seek advice from a qualified attorney as soon as possible. You might not want your estate to be distributed according to your state’s intestacy laws after your passing; you might have other wishes. In that case, you should definitely take the time to draft a Will so that after your passing, your estate is divided among your near and dear ones exactly as you wished.

South California last will and testament requirements

You must be 18 years old, be of "sound mind," have a written South Carolina last Will and testament that is signed by you and two witnesses, and be of "sound mind" in order to form a legally binding last Will and testament. The witnesses ought to be people who won't inherit anything from the Will. Otherwise, they risk losing any inheritance you have left them.

In order to finalize a Will in South Carolina, your will must be signed or acknowledged in the presence of two witnesses; they will also be required to sign it.

Are electronic Wills valid in South Carolina?

Wills that are solely available digitally are not permitted in South Carolina. You must print and sign your South Carolina online Will after creating it. Some states permit the creation of a digital-only Will, which can be signed and witnessed digitally without creating a paper copy. However, a paper copy with actual signatures is still needed in the majority of states.

Are holographic or handwritten wills legally valid in South Carolina?

Holographic wills are not regarded as legally binding in South Carolina unless they were signed in a state that accepts them.

A holographic Will is one that is drafted by hand and only bears the testator's signature. By definition, holographic Wills lack any attesting witnesses; hence, when they are submitted for probate, holographic Wills are typically rejected due to the absence of witnesses.

Although some states permit holographic Wills under specific circumstances, these types of Wills frequently experience delays in the probate process because when people write their Wills by hand, they frequently forget to include crucial clauses, use ambiguous language, or neglect to include language that is required to show testamentary intent. Holographic Wills must also be proven to be true, and the handwriting must be verified by witnesses.

Are nuncupative or oral Wills accepted in South Carolina?

The state of South Carolina does not accept nuncupative Wills.

Some people prefer to leave recorded oral testaments. Nuncupative Wills are referred to as "deathbed Wills." Nuncupative Wills may be allowed to probate in some states. However, this is often only permitted in certain extremely specific situations.

Does your South Carolina last Will and testament need to be notarized?

You are not legally required to get your Will notarized in South Carolina in order for it to be considered valid. However, if you wish to make your Will "self-proving" in South Carolina, you'll need to visit a notary. A self-proving Will expedites the probate process because the court can accept it without speaking to the signatories' witnesses.

You and your witnesses will visit the notary and sign an affidavit there, confirming your identities and that you all understood you were signing the Will in order to make your Will self-proving. Because interested witnesses risk losing the gift you give them if they serve as witnesses, it is advisable to select "disinterested" witnesses who won't be getting anything from the Will.

Can you name an executor or a personal representative in your South Carolina last Will and testament?

In South Carolina, you can choose a personal representative in your Will who will see to it that the instructions in it are followed after your passing. The probate court will select a person to handle the task of closing your estate if you don't choose a personal representative in your last Will and testament.

How to change or revoke a Will in South Carolina?

A codicil, or addendum to the Will, must be executed in the same manner as a Will in South Carolina in order to update a Will at any time. In South Carolina, a Will can be revoked by making a new one, or it can be "burned, torn, canceled, obliterated, or destroyed" with the intention of doing so, either by the testator or by someone acting on his behalf while he is present.

South Carolina has procedures that determine whether your new Will revokes the old one or only supplements it if you have two Wills, and it's unclear whether you did or did not do so. If the new Will distributes your entire assets, last Will and testament South Carolina law assume that you intended to annul your previous Will.

South Carolina law assumes you merely intended to supplement your old Will if you didn't distribute the entirety of your fortune in your new Will. The executor, in this case, should adhere to the directives of both Wills. If there is a conflicting clause, the executor must follow the new Will's instructions for that clause.

If you and your spouse get divorced, South Carolina law nullifies any provisions in your Will that named your spouse as executor or left any property to them. If you remarry your spouse or stipulate in your Will that the terms of your will should not be affected by divorce, then this rule does not apply. Consult an estate planning professional for assistance if you are worried about how divorce will affect your Will.

It's preferable to revoke your Will and create a new one if you need to make modifications to it. However, you could write an amendment to your current Will, known as a codicil, if you just need to make very minor modifications. In either scenario, you must complete your amendments using the same procedures as when you created your initial will.

South Carolina probate laws

A person's estate is simply settled through the court-supervised procedure of probate. It is a method for transferring asset ownership to new owners and for final tax and debt repayment. It is not the motive of the government to acquire the estate of someone who passes away without leaving a will through probate; that is not the purpose of it.

There is no way to avoid any applicable estate taxes through probate. With rare exceptions, probate does not generally take several years. Regardless of whether a person has a Will or not, their estate can go through probate if it contains assets that must go through the procedure.

Which assets are not subjected to probate in South Carolina?

  1. Any real estate you own with joint tenancy with rights of survivorship.
  2. Any retirement account you have for which you have already named a beneficiary.
  3. Any insurance account for which a beneficiary is already named.
  4. Distributions of your pension plan.
  5. Assets you have included in a trust.
  6. Transfer-on-death or payable-on-death assets.

How does probate happen in South Carolina?

Probate takes place in a step-by-step manner. They are as follows:

  1. The last Will and testament must be delivered to a judge of the South Carolina probate court within thirty days after the decedent's death or to the personal representative designated in the Will, who will then bring it to the judge.
  2. The individual nominated in the decedent's Will as personal representative is duly appointed by the court.
  3. A notice is delivered to the intestate heirs. If they are not mentioned or receive different treatment, heirs may choose to contest the Will.
  4. After that, an inventory of the decedent’s assets is taken, and an appraisal happens. This needs to be submitted 90 days after the estate is opened. For assets like residences, works of art, and jewels, professional appraisers may be required to provide the values at the time of death.
  5. After that, the final accounting is done. This includes paying any appropriate taxes, unpaid obligations, and ongoing costs associated with settling the estate, such as accounting and legal bills. According to South Carolina law, creditors will be paid first if there is not enough money in the estate to cover all debts.
  6. After paying off debts and taxes, any remaining funds may then be distributed to the heirs according to the last Will and testament's terms or, in the absence of a Will, the intestacy laws of South Carolina.
  7. The estate is then officially closed when the court provides a Certificate of Discharge after the personal representative has filed a number of paperwork with the court.

How long does it take to complete probate in South Carolina?

A somewhat straightforward estate can take around a year to complete in ideal circumstances. Cases with more complexity will take longer. However, "small estates," defined as those with no real property and a value of less than $25,000, may be eligible for a summary administrative procedure, which is a quicker and more affordable alternative to the standard probate process.

Within a couple of weeks, a modest estate can be resolved. However, you should be aware that a variety of factors, such as the following, will affect the duration it would take an estate to go through the probate process:

  • Whether or not the departed had a valid Will
  • Size and complexity of the estate
  • Whether the Will is disputed or not
  • Whether there are lawsuits.
  • Effectiveness of the personal representative

How to avoid probate in South Carolina?

The deceased must not have had any probate-eligible assets at the time of death for an estate to escape probate. Putting all of those assets in a living trust is a popular method for doing this because the trust remains in the beneficiary's name and is under their control while they are alive and automatically passes to the successor trustee upon death. Probate is not necessary for the trust's possessions.

Conclusion

In South Carolina, you are free to draft your own Will. In some circumstances, though, you might wish to speak with a lawyer. You should consult a lawyer, for instance, if you believe that your Will might be challenged or if you want to exclude your spouse from your estate.

An experinced lawyer can assist in ensuring that your Will is correctly formed and addresses all the issues that are significant to you. A Will does more than just specify who gets what and in what proportion; for minors under 18, it can also designate a guardian. Start preparing for your family's future right away by scheduling a consultation with an expert.

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