Making your last will and testament is something every adult should do. Your will allows you to designate who receives your property, who handles your estate, and who cares for your young children. There are many questions about making a will in South Carolina under state law. We have the answers.
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What If I Die Without a Will in South Carolina?
When a person dies and leaves a will, they leave instructions on how to distribute their real estate, personal property, and assets among their family members. However, if a decedent dies without a will, called intestate, a probate court divides their assets according to intestacy laws of the S.C. Code.
If there is a surviving spouse and/or children, they inherit the estate. If not, the next of kin, such as parents, siblings, or grandparents, inherit. If no next of kin exists, the state takes those assets.
What Does a Will Do?
A South Carolina will lets you determine who handles your estate, who receives your property, and who cares for your children. In your will, you can do the following:
- Name a personal representative or executor who submits your will to a South Carolina probate court, files tax returns and paperwork, and follows the instructions in your will
- Identify and give away personal property and real property (real estate) to those you choose (your beneficiaries)
- Make charitable bequests to the charities of your choice if you wish
- Name guardians for minor children
- Name caregivers for pets and set aside funds for their care
A will streamlines the probate process, saving your family members and other loved ones time and money. You determine how to handle your estate, not the probate court.
What Doesn’t a Will Do?
Your will transfers many of your assets to your beneficiaries. But some assets, called non-probate assets, pass outside of a will according to the terms of their own legal documents. These include:
- Funds in payable-on-death or transfer-on-death bank or investment accounts
- Life insurance or annuity proceeds to named beneficiaries other than to the estate itself)
- Pensions, retirement accounts, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
You may want to list all your accounts and policies and check for the correct beneficiary designations. Name a backup beneficiary if your primary beneficiary dies before you. Any assets without a beneficiary designation go into your probate for the court to distribute.
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Who Can Make a Will in South Carolina?
In order to make a will in South Carolina, the person making a will, called the testator, must meet the following requirements.
- Age: The testator must be at least 18 years of age.
- Sound Mind: The testator must have a sound mind. Being of sound mind means the person making the will understands what they own, who their natural heirs are, how they want to distribute their property at death, and that they are signing their will.
A testator must also have a sound mind, called testamentary capacity, at the time they make and sign the will. South Carolina residents with concerns about their testamentary capacity should consult an estate planning attorney for legal advice and assistance.
Does South Carolina Have a Statutory Will?
No. South Carolina does have a statutory will or template you must use to make your will. You can either create your own will customized to your needs or hire an estate planning attorney. People who want to make their own will conforming to South Carolina law often use online estate planning providers such as Trust & Will.
What Types of Wills Does South Carolina Accept?
There are different types of wills but only certain ones that are acceptable in South Carolina. Make sure you understand these types of wills and if South Carolina allows them.
- Handwritten Will: A handwritten will, also called a holographic will, is written in the testator’s handwriting and signed without witnesses. A holographic will is not valid in South Carolina. But a will written entirely by the testator and signed by two witnesses is acceptable.
- Oral Will: An oral will, also called a nuncupative will, is a will that is spoken only. An oral will is not a valid will in South Carolina.
- Electronic Will: An electronic will is one signed, witnessed, or notarized by electronic means. A fully electronic or digital will is not valid in South Carolina.
Most wills are typewritten or printed and signed by the testator. While handwritten and witnessed wills are acceptable, they may be subject to challenges in court for undue influence or fraud.
Can I Make My Own Will in South Carolina?
Yes. You can create your own will in South Carolina. The state does not require that you use an attorney to draft your will. You can make your own will if you have a simple estate and know your wishes. There is an advantage to online will drafting services such as Trust & Will. An online will allows you to customize and update it whenever you want. For example, if you want to change your beneficiaries or guardians, you can easily make a new will without having to amend the will or make a codicil.
How Do I Make My Will Valid in South Carolina?
To ensure that your will is valid in South Carolina, make sure you meet the following requirements:
- Signature: The testator must sign the will or have someone else sign it for them at their direction and in their presence.
- Witnesses: Two witnesses must sign the will and must either see the testator sign the will or see the testator acknowledge the signature as their own. An interested witness is one who inherits from the will or whose spouse inherits through the will. The will is valid if a witness is interested, but the witness or their spouse is only entitled to receive what they would through the intestacy law. If there are two disinterested witnesses in addition to the interested witness, then the bequest stands.
- Notary: The testator does not need their signature notarized in South Carolina.
- Self-Proving Affidavit: A self-proving affidavit, called a self-proving attestation in the state, is an affidavit attached to the will in which the testator and witnesses swear the testator signed the will and witnessed by them. It must be notarized. This attestation goes with the will to the probate court instead of having the witnesses testify in person.
Can I Disinherit My Spouse in South Carolina?
You are not required to leave anything to your spouse in your will, but if you do not, your spouse has the right to an elective share. An elective share is a share of a decedent’s estate that a spouse may claim if left out of the will. In South Carolina, they may receive one-third of the probate estate.
Can I Disinherit My Children in South Carolina?
Yes. You can disinherit your children, but it is best to state in your will that you are doing so. Suppose a child is born or adopted after you signed your will. In that case, they may receive what they would have received if you died intestate unless the will makes it clear the omission was intentional, you left all your estate to your spouse, or you provided for the child through non-probate assets with evidence that was your intent.
If a testator leaves a child out of the will because they assume the child is dead, but they are actually alive, then the child receives what they would have received under the intestacy statute.
What Estate Planning Documents Should I Have in South Carolina?
While your own will is a critical component of your estate plan, there are other important documents you should also create. These include:
- Power of Attorney. This document gives someone the authority to make financial decisions for you if you cannot make them for yourself. Your agent has a fiduciary duty to act in your best interest. You decide what powers to give your agent and when the authority begins and ends.
- Health Care Directive. A health care directive or living will allows you to leave instructions on what life-prolonging measures you want or do not want when you have an end-stage illness or terminal condition. You may also authorize someone to access your medical records and make health care decisions for you if you are unable to make them yourself.
Fortunately, making a valid will and creating other South Carolina estate planning documents is easy with online estate planning templates.