A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. South Carolina wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a South Carolina living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the person who passed away) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a South Carolina last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
A South Carolina will must be filed with the Probate Court within thirty days of the decedent’s death. Once the will is proven, the executor (person who oversees the deceased’s estate) can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
South Carolina offers a simplified probate process for estates that contain no real property and that are worth less than $10,000.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In South Carolina in the absence of a will, a surviving spouse inherits the entire estate unless the couple share descendants, in which case the spouse and descendants each inherit half.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions in South Carolina include the following:
- Property owned in joint tenancy with right of survivorship
- Life insurance policy and retirement account proceeds
- Elective share of surviving spouse
- Surviving spouse (or surviving children if no surviving spouse) is entitled to certain exempt personal property up to a value of $25,000
- Share to surviving spouse if omitted from will, with some exceptions
- Share to surviving children, with some exceptions
Form a Last Will in South Carolina
The basic requirements for a South Carolina last will and testament include the following:
- Age: The testator must be “not a minor” under South Carolina law.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A South Carolina will must be signed by at least two individuals, each of whom witnessed the signing of the will or the testator’s acknowledgement of the signature or of the will.
- Writing: A South Carolina will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Changing a South Carolina Last Will and Testament
A South Carolina will may be changed at any time by codicil, or amendment to the will, which must be executed in the same way as a will.
Revoking a South Carolina Last Will and Testament
The revocation of a South Carolina will can be accomplished by executing a subsequent will or by the will being “burned, torn, canceled, obliterated, or destroyed” with the intent and for the purpose of revoking it done by either the testator or by someone else at his direction in his presence.
Ready to take the next step and make a last will? LegalZoom can help you make your own will online. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and power of attorney.