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Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. South Carolina wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with you, the testator (the person making the will), to create valid South Carolina wills and to assign a person (called the executor in most states) to administer a South Carolina last will and testament after the death of the testator.
Requirements
Basic Requirements for a South Carolina Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound mind (capable of reasoning and making decisions).
Signature: A South Carolina last will and testament must be signed by the testator, or by some other person under the testator's direction in the testator's presence.
Witnesses: At least 2 witnesses (who are not beneficiaries) are required for a valid South Carolina last will and testament by subscribing their names to the will, or by signing an affidavit, while in the presence of the testator and at the testator's direction or request. If a witness is a beneficiary, his or her bequest is void unless he or she would have received the bequest anyway in the absence of the will.
Writing: A South Carolina last will and testament must be in writing to be valid.
Beneficiaries: A South Carolina last will and testament may make a disposition of property to any person.
Purpose
Distribution of Property:
A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, South Carolina laws allow you to dispose of your property as you wish.
Other Functions of Wills:
LegalZoom's South Carolina wills form may be used to designate a guardian for any minor children.
Our South Carolina wills form may be create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others.
Our South Carolina wills form may also be used to name an executor to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.
Notable exceptions to the ability to distribute property:
Jointly owned property with the rights of survivorship automatically passes onto the survivor.
A surviving spouse may elect to take 1/3 of the decedent's probate estate, or he or she may take under the will (but not both).
Omitted Spouse: If a will fails to name or provide for a spouse, the spouse must receive a portion of the testator's estate as provided by South Carolina law, unless it appears either from the will or from other evidence that the omission was intentional.
Omitted Child: If a will fails to name or provide for a child, the child must receive a portion of the decedent's estate as provided by South Carolina law, unless it appears either from the will or from other evidence that the omission was intentional. A child conceived by testator prior to death and born within 10 months after testator's death inherits as if the child had been born in the lifetime of the decedent.
Providing for Pets
South Carolina law currently does not have specific statutes pertaining to providing care for pets. However, the testator may specify a beneficiary to be the new owner of a pet.
Changing and Revoking
Changing a South Carolina Will and Testament
A South Carolina will and testament may be changed whenever the testator desires.
A South Carolina will and testament can be changed through a codicil, which is a document stating additions or changes to the original will . Codicils must be executed in accordance with South Carolina probate laws.
Revoking a South Carolina Will and Testament
A will, or any part thereof, can be revoked:
By a subsequent will that revokes, or partially revokes, the prior will expressly or by conflicting or different parts; or
By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator.
By the testator's subsequent divorce or annulment to the extent that the divorce or annulment causes inconsistency in the will, unless the will was written in contemplation of the upcoming marriage or divorce. However, a remarriage to the former spouse causes revival of the will.
Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator's intent.
Probate and Estate Taxes
Probate
Probate is a legal process for starting the transfer of property when the testator dies. The procedures validate the South Carolina last will and determine ownership of the property. Property that does not pass via right of survivorship, trust, or insurance is subject to probate proceedings.
After the South Carolina last will is admitted at court, the executor files applications for the probate of a will and for legal documents called letters testamentary.
Several important functions of probate proceedings include:
Collecting, or taking possession of, the decedent's property.
Protecting and preserving the decedent's estate.
Paying all debts, claims and taxes.
Determining who is entitled to the assets and distributing the property according to the South Carolina last will.
Estate Taxes
Every estate may be subject to federal and South Carolina death taxes, depending on the value of assets included in the taxable estate. The federal tax is based on the value of assets in the taxable estate. The South Carolina estate tax is equal to the state death tax credit allowed on the federal tax return. Filing a South Carolina estate tax return does not increase the total tax liability of the estate, but instead redirects revenues to the state which would go to the federal government. Generally, if no federal estate tax is due, then no South Carolina estate tax is due either.
Intestacy
It is extremely important to make a South Carolina will if you want to control the distribution of your estate. If you die before you make a South Carolina will (or other valid will), you are said to have died "intestate" and your property will be distributed according to strict South Carolina state laws.
For example, the surviving spouse takes the entire estate if you leave no children or parents. If you leave a spouse and children, then the spouse takes of the estate, and the children share the remaining half of the estate in equal amounts.
If you make a South Carolina will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.
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