Last Will and Testament Guide for South Carolina
Creating a will is an essential part of many estate plans. A last will and testament serves many functions, which you should consider when deciding if you need other documents in addition to a will. Below, our Aiken, SC will and probate attorney reviews how to do a last will and testament. Contact us today if you need help.
What Purpose Does a Will Serve?
A will can accomplish many things, including:
Identifying who will inherit your property, called your estate.
Nominating someone to serve as the personal representative of the estate, whose task is to guide the estate through probate.
Naming guardians for any minor children that you have.
Dying Intestate (without a will)
A person who does not have a will has died “intestate.” You still have an estate, but it gets distributed according to South Carolina’s intestacy rules. The probate court might also appoint a personal representative.
The intestacy rules are complicated and depend on who survives you. If only your spouse does (and no children), then your spouse receives everything. If children also survive, then your spouse will inherit half the estate, and your children will divide the other half. Things get complicated when there are no children or surviving spouse. It’s best to simply create a will and control who will inherit from you.
Property Distributed Outside a Will
One of the main purposes of creating a will is to decide who will inherit your assets at death. However, not all estate assets will pass through your will. You should be aware of that fact. Some non-probate assets include:
Life insurance policies, which name a beneficiary on the policy.
Retirement accounts, which also have beneficiaries listed.
Property owned in joint tenancy with a right of survivorship, such as your family home.
Payable on death accounts.
Any assets you put in a trust, which will be distributed according to the terms of the trust.
Requirements to Create a Valid Will in South Carolina
South Carolina has strict laws for what constitutes a valid will. We have collected the different requirements here:
You must be at least 18 years of age.
You must have capacity, i.e., be of sound mind.
You must sign the will or have someone else sign your name at your direction and in your presence.
Two witnesses must sign the will after observing you sign it or after you acknowledge to them that this is your will.
Your will must be in writing.
Limits on Disinheriting Family
You have a free hand to leave your estate to whoever you want. But there are some exceptions when it comes to disinheriting family members.
Your surviving spouse has a right to an elective share of the estate, unless he or she waived this right. The elective share is one-third of the estate. South Carolina law provides time limits in S.C. Code § 62-2-205(a). Your spouse has either 8 months after the date of death or 6 months after probate to elect the share, whichever expires last.
If you simply forgot to add your spouse—because you got married after making the will—a surviving spouse is entitled to a share. The amount will be whatever they would have inherited had you died intestate. Often, this means one-half if there were surviving children or the entire estate if there were no surviving children.
A child who is born or adopted after the will is executed is a “pretermitted child.” Under Section 62-2-302, this child is entitled to their share of the estate as if the testator had died intestate, unless the omission was intentional, in which case they would not inherit.
Parents can also intentionally disinherit children who were born before the will is created. Work with an attorney to create clear language to this effect.
Changing Your South Carolina Last Will and Testament
You may change your will by a codicil at any time, so long as you have capacity. In fact, a codicil (amendment) must meet the same formal requirements as the original will, such as being in writing. Many people change their wills after key events, like divorce. Other reasons include marriage, the birth of children, or the acquisition of considerable assets.
You can also revoke a will. Most people revoke a prior will by executing a new one, which states it’s revoking all prior wills. You can also revoke a will by destroying, tearing, obliterating, canceling, or burning it. We highly recommend working with a lawyer to amend or revoke a will.
Storing Your Last Will and Testament
You want to keep your will safe but also make it easy for your family to find when you die. A will typically must be admitted into probate court, so don’t fail to tell family where it is. Your lawyer can keep a copy for you. Other places include a safe deposit box with instructions to a trusted family member about how to access it.
What to Do if You Lost Your Will
Some people place a will and lose it, or maybe it was lost in a fire or flood. You should make a new will, ideally working with a last will and testament lawyer.
Trusts versus Wills
Many people also create a trust with a will. A trust can accomplish more than a will, however:
You can ensure that a pet is taken care of by creating a pet trust. You can’t leave assets to a pet in a will. But you can provide money and instructions for their care in a trust.
You can use a trust to reap tax savings for your heirs. There are many trusts which reduce the overall tax burden.
You can provide for a disabled family member. Use a trust instead so they continue to receive government assistance.
These are only a few of the benefits of a trust.
Contact Surasky Law Firm for Help with Wills
If you don’t have a will, or if you want to discuss amending it, please call our law firm. We can revise any will or perhaps supplement your will with a trust or other estate planning document. Our Aiken, SC will and probate attorney can help you with your options in drafting your last will and testament. Contact us today if you need help.