Wills are an important part of estate planning, and in South Carolina, you have the option of creating a valid and enforceable will. Whether you’re drafting a will for the first time or updating an existing one, it’s important to understand the laws that govern wills in South Carolina and why having one is so important.
What is a will?
A will is a written document that states how you want your property and assets to be distributed after your death. It also states who will be the executor of your estate and who will be the guardians of your children, if you have any. A will is a legally binding document, and it must be signed by you, notarized, and signed by two witnesses in accordance with South Carolina law.
When preparing your will, the legal language in the document refers to you as the testator. The person you designate to carry out your wishes in distributing your assets is referred to as the executor. You can also designate a backup executor in case your first choice is unavailable or declines to act as the executor. The individuals you list as inheriting any of your assets are known as the beneficiaries.
Who can create a will in South Carolina?
In South Carolina, anyone who is over 18 years old and of sound mind can create a will. To be of sound mind means the person creating the will must be able to understand what they are doing and the consequences of their actions. If there is a question as to whether someone is of sound mind when singing their will, the attorney overseeing the signing will ask them a series of questions to ensure they are competent. If the attorney concludes the testator is not competent to sign, then the attorney will not allow the testator to sign the will. If a testator is not competent at the time they sign their will, then it invalidates the document.
What must be included in a South Carolina will?
In order for a will to be valid and enforceable in South Carolina, it must include certain provisions. The will must include your name and the date it was written, a statement that you are of sound mind, a list of your assets and how you want them to be distributed, and a list of any additional instructions or wishes you may have. The will must also be signed by two witnesses who are at least 18 years old, and notarized.
Additionally, the two witnesses that sign the will must not be beneficiaries under the will for anything more than what they would normally receive if the testator died without a will. In South Carolina, if someone dies without a will then their assets are distributed through intestate succession according to South Carolina statute. As long as the witnesses to the will are not receiving more than what they would have received through intestate succession, then they can be valid witnesses. If the witnesses signing are receiving more than what they would have received under intestate succession, then they cannot be valid witnesses for a will in South Carolina.
Why do I need a will?
Having a valid and enforceable will is essential for estate planning. Without a will, the state of South Carolina will decide how to distribute your assets and property by statute called intestate succession. Intestate succession would likely be different than how you would want your assets distributed.
After a person’s death, their estate must go through a process called probate. Probate is the legal and court supervised procedure for distributing your assets. When you have a will, the probate process is generally much faster and more efficient. If you do not have a will, the probate process can become extremely lengthy and expensive.
Additionally, a will can help to avoid disputes between family members. This is especially important if you have a large estate or if you want to make sure that certain family members receive certain assets. A will can also help to minimize the amount of taxes and other costs associated with the distribution of your estate.
Finally, a will can allow you to appoint a guardian for any minor children living at the time of your death. By appointing a guardian in your will, it provides clear guidance on your wishes, and helps make the transition easier for your children during an already extremely difficult time.
Intestate Succession in South Carolina
In South Carolina, intestate succession is determined by statute. This means if you die without a will, what relatives receive your assets is set in a pre-determined order by South Carolina law. South Carolina intestate succession laws provide the inheritance order for those who die without a will based on what relatives the deceased has living at the time of their death. For example, if you are married with minor children and your spouse and children are alive at the time you die, half of your assets will go to your spouse and the other half will go to your children in equal shares.
If you are married with no children and your spouse is alive when you die, all of your assets will go to your spouse. If you have children but are not married and your children are alive when you die, then your assets will go to your children in equal shares. If you are unmarried and have no children and living parents when you die, all of your assets will go to your parents.
South Carolina intestate succession provides for almost any situation based on what relatives are living when you die, including the examples provided above. By having a will, it allows you to make sure your wishes are followed and that your loved ones are taken care of after you’re gone.
Is A Will the Only Document I Need for My Estate Planning?
A will is absolutely essential for every estate plan. However, it is highly likely that you will also need additional documents such a power of attorney, living will, and trust. In general, a power of attorney is a document that designates someone as your agent to make decisions and act on your behalf.
A living will is also known as advance health care directives, and provides instructions on what types of treatments you would like to receive if you became incapacitated, such as life support. A trust places property and/or assets into the care of another individual for the benefit of a third party and is generally not subject to probate like a will would be.
Having a will is absolutely essential for every adult. It is also vital to consult an attorney regarding a full estate plan, as you will likely need additional documents, such as a power of attorney or trust, to adequately protect your assets and plan for your future. At Sentinel Law Firm, we understand the importance of having a proper will and comprehensive estate plan. Our experienced attorneys can help provide you with an estate plan that is tailored to your specific needs and assets. Contact us today to schedule your consultation and begin planning for your future.