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Importance of Writing a Will

January 13, 2016

 

Many people find thinking about and planning for end of life issues extraordinarily difficult. Often times, these individuals put off writing their last will and testament for many years. This is not a good idea because a person without a will who dies will have their property distributed according to the intestate succession laws. This can lead to a distribution of property that would not be in a way that the decedent would have desired.

 

Creating a Will

 

A will describes the manner in which an individual’s estate (real and personal property) is distributed upon the person’s death. In addition to distributing property, a will can also create a charitable gift, a trust, and name a legal guardian for any minor children of the individual. Though creating a will is not legally required, it is often a good idea because, without one, property is divided according to state laws.

 

Under South Carolina law, the following are required to make a valid will:

 

  1. Testator (the person whose will it is) must be at least 18 years of age

  2. Testator must be of sound mind

  3. Must be signed by the testator (or by someone else in the testator’s name, in the presence and at the direction of the testator)

  4. Must be signed by two individuals who each witnessed the testator sign the will

  5. Must be in writing

 

A will can be changed by amendment (called codicil) at any time. The amendment must be executed in the same manner as the will. Additionally, a person can revoke a will by simply executing a new will.

 

Process after Death

 

A decedent’s will must be filed with the probate court within 30 days of the person’s death. The will must be proven to the court before it will accept the terms written. After the will is proven, the executor (the person who ensures the will is carried out according to its terms) proceeds with collecting all of the property, paying any outstanding debts, and distributing assets.

 

If an individual dies without a will, property is passed by intestate succession. Under South Carolina law, a surviving spouse inherits the entire estate, unless there are descendants of the decedent. In the event there are descendants, the surviving spouse and the descendants each receive half of the estate. This can lead to undesirable results because the decedent may have wanted the entire estate to pass to his or her surviving spouse initially. Then, only after the surviving spouse dies would the decedent have wanted the estate to pass to his or her descendants.

 

The laws of intestate succession also provide for the various other possibilities when different individuals related to the decedent are survivors. In the event that there is no one sufficiently related to the decedent, the estate is given to the state of South Carolina.

 

We Can Help

 

For more information related to the creation of a will and the provisions that are important to include, contact an experienced attorney today. At the Surasky Law Firm, we provide compassionate help for individuals planning for the passing of their property.

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