SOUTH CAROLINA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย South Carolina Code, Title 62, Art. 2, Part 5 (S.C. Code ยง62-2-501, et. seq.).
Trusts:ย South Carolina Code, Title 62, Art. 7 (S.C. Code ยง62-7-101, et. seq.).
South Carolina Will Requirements.
Any person who is of sound mind and at least 18 years old (or married or an emancipated minor) may create a valid will in South Carolina.ย To be valid, South Carolina wills must be in writing and must include the signature of the testator (or another individual signing for the testator at the testatorโs direction and in the testator presence) and signatures of at least two witnesses.ย Witnesses must either observe the testatorโs signing or hear the testator acknowledge that the signature is authentic.
A South Carolina will is not invalidated if a witness (or witnessโs spouse) has a beneficial interest in the will.ย However, devises to an interested witness (or spouse thereof) are deemed void to the extent, in the aggregate, total devises to the interested witness exceed the share of the estate the witness would have received had the testator died intestate.ย The provision voiding devises to an interested witness is inapplicable if the will has at least two other disinterested witnesses.
South Carolina wills need not be notarized, but a will can be made self-proved through an accompanying notarized affidavit executed by the testator and at least one witness.ย The attestation can be executed simultaneously with the will or at a later date.ย The self-proving attestation serves in place of witness testimony in probate court to authenticate the will.
Within the self-proved affidavit, the testator and witnesses attest that the document was created as a will under the testatorโs own volition while the testator had adequate legal capacity and was not under any undue influence.ย South Carolinaโs Probate Code, at ยง62-2-503, includes a proposed form for the affidavit.
South Carolina law permits wills to incorporate by reference other documents if the will clearly expresses an intent to incorporate the other document and the other document is sufficiently described to allow identification.ย ย
More specifically, a South Carolina will can incorporate by reference a written statement or list disposing of tangible personal property not otherwise addressed in the will.ย This type of list is frequently titled a โmemorandum of personal property.โย The list must be written in the testatorโs handwriting or signed by the testator and must identify the devised items and intended recipients with reasonable certainty.ย A memorandum of personal propertyโwhich cannot be used to distribute cash, items used in trade or business, or real estateโcan be created before or after a will is executed and can be altered by the testator.ย ย
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Amendment, Revision, and Revocation of South Carolina Wills.
South Carolina wills can be amended through execution of a codicil (a will addendum) or a later will meeting all formalities for creation of a will.ย South Carolina wills can be revoked through the testatorโs intentional destruction of the will (e.g., through burning or tearing the document) or through execution of a later will either expressly or implicitly revoking the prior will.ย ย
A later will that does not expressly revoke a prior will is presumed to revoke the prior will by inconsistency if the later will completely disposes of the testatorโs estate.ย If a later will does not completely dispose of the testatorโs estate, it is presumed to be intended as a supplement to the earlier will, with the later-executed will controlling in the event of any conflicting provisions.
If a testator is divorced after executing a South Carolina will or revocable trust, any provisions in favor of the former spouse are deemed to have been revoked.ย Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.ย Provisions deemed revoked due to divorce are revived if the testator later remarries the same spouse.ย In South Carolina, revocation by divorce also applies to living trusts, life insurance and annuity designations, and transfer-on-death accounts.
If a testator is married or has a child after execution of a will, the surviving spouse or child receives a share of the estate as if the testator had died intestate.ย The presumed share of an omitted spouse or child is inapplicable if there is evidence that the omission was intentional or if the decedent made other arrangements for the spouse or child intended to be in lieu of a testamentary devise.ย An after-born childโs share is also inapplicable if the decedentโs will leaves substantially all of his or her estate to a surviving spouse.
Holographic and Oral Wills.
South Carolina law does not recognize holographic wills.ย A handwritten will can still be valid, but it must satisfy all of the other requirements for execution of a valid will, including attestation by witnesses.
Oral (or โnuncupativeโ) wills are not recognized under South Carolina law.
South Carolina Trust Requirements.
Trusts in South Carolina are principally governed by the South Carolina Trust Code, enacted by the legislature at S.C. Code ยง67-7-101, et. seq.ย A South Carolina trust can only be created to the extent its purposes are lawful, not violative of the stateโs public policy, and possible to achieve.ย In general, a trustโs purpose must be to benefit the interests of the trustโs beneficiaries. A South Carolina trust is voidable to the extent it was induced through fraud, duress, or undue influence.
A valid trust is only created under South Carolina law if the settlor has adequate capacity to create the trust and expresses an intent to create a trust.ย For revocable trusts, the standard for capacity is the same as for wills. South Carolina law assumes trusts are revocable unless the trustโs terms expressly provide that it is irrevocable.ย ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, South Carolina law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence, and trusts involving real estate must be evidenced by a written instrument signed by the trustโs creator.ย If an agreement creating a trust is in writing, it must be signed by the settlor (or someone else on the settlorโs behalf, at the settlorโs direction, and in the settlorโs presence).
South Carolina trusts can come into existence through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a settlorโs declaration that property is owned as trustee, or by exercising a power of appointment in favor of a trustee.ย
A South Carolina trust must have a trustee with actual duties to perform.ย The trustee of a South Carolina trust has a duty to administer a trust prudently and in good faith. Trustees who manage assets are governed by the โprudent investor rule,โ though that rule may be expanded, restricted, or eliminated by the trust instrument.ย ย
South Carolina trusts must also have a definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and qualifying non-charitable trusts).ย ย
A South Carolina trustโs sole current and future beneficiary cannot also be the trustโs sole trustee.ย Merger of title occurs (and the trust is therefore severed) if both (1) a trustโs sole trustee becomes its sole current and future beneficiary, and (2) legal and equitable title to the applicable trust property are of the same quality and duration.
Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, South Carolina protects beneficiary interests from attachment if a trust includes a โspendthrift provisionโ or provides for discretionary distributions.ย In either case, creditors of beneficiaries cannot attach trust assets until actually distributed to the relevant beneficiary (or to the extent a mandatory distribution to the beneficiary is overdue).ย However, spendthrift provisions do not prevent attachment for satisfaction of certain domestic support obligations (unless the trust in question is a โspecial needs trustโ or similar trust designed to preserve Medicaid or SSI eligibility).
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims).ย In the case of irrevocable trusts, settlorsโ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.
South Carolina trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purpose becomes unlawful or impossible.ย A trust may also be modified or terminated by a court upon the petition of interested parties and, in some cases, by the consent of the parties to the trust.ย A settlor can revoke or amend a revocable trust through the terms of a will or codicil as long as the trust is specifically referenced in the testamentary document.
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Estate Taxes:ย South Carolina does not impose estate taxes or inheritance taxes.ย Large South Carolina estates may still be liable for the federal estate tax.
Simplified Probate:ย South Carolina allows for a simplified probate process for small estatesโdefined as $25,000 or less, excluding liens, exemptions, administrative expenses, funeral costs, and medical bills relating to the decedentโs last illness.ย If an estate is eligible for small estate probate, the personal representative files a petition with the probate court and provides notice of the estate to potential creditors.ย The streamlined process allows the personal representative to distribute assets to heirs without as much delay and procedural requirements as with the ordinary probate process.
Non-Probate Transfers:ย Along with living trusts, South Carolina law offers multiple options for non-probate transfer of assets.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Importantly, under South Carolina, a joint tenancy is assumed to not include a โright of survivorshipโ unless an instrument establishing the joint tenancy expressly provides for survivorship or comparable evidence establishes survivorship.ย However, right of survivorship is generally presumed with regard to tangible personal property owned by spouses (see below).
When no right of survivorship is present, a South Carolina joint tenancy is severed upon the death of one owner and converts to a tenancy in common subject to probate proceedings.ย Tenancy by the entirety (a form of co-ownership specifically by spouses) is not authorized under South Carolina law.
POD (payable-on-death) and TOD (transfer-on-death) designations provide another option for bypassing probate in South Carolina.ย In either case, the designation provides for automatic transfer to a beneficiary upon an ownerโs death.ย POD and TOD designations can be added to certain assets such as financial accounts, CDs, and securities.ย Similarly, beneficiary designations to retirement accounts and life insurance policies allow for non-probate transfer.ย ย ย
Although some states allow for TOD designations within real estate deeds (often called โbeneficiary deedsโ), South Carolina does not recognize them.ย Beneficiary designations on vehicle titles are also not permitted under South Carolina law.
Spousal Shares: In South Carolina, the surviving spouse of an intestate decedent with no children receives the decedent spouseโs entire estate.ย If the decedent spouse had children, the surviving spouse receives a one-half share.
To protect against spousal disinheritance by will, South Carolina law provides for a waivable spousal โelective share,โ which is a minimum interest in a decedent spouseโs estate in favor of a surviving spouse.ย The spousal elective share is equal to one-third of the value of the decedentโs probate estate.ย The probate estate includes everything that passes through the decedentโs will or through intestacy, plus assets held in certain โillusoryโ revocable trustsโreduced for expenses relating to funerals and administration and valid claims against the estate.ย The value of certain non-probate interests passed to the surviving spouse (such as through a life insurance policy or living trust) are charged against the elective share, if taken.ย ย
Surviving spouses also have a right to a priority exemption of up to $25,000 in value for household furniture, automobiles, furnishings, appliances, and personal effects.ย The spousal exemption can be satisfied from other assets if the listed assets are insufficient.ย
South Carolina also assumes that all of a decedent spouseโs tangible personal property that is not specifically included in a will or an incorporated personal property memorandum is co-owned with the other spouse as joint tenants with rights of survivorship.ย The spousal joint-tenancy presumption does not apply to property acquired by the decedent prior to the marriage; property received through a gift or inheritance; or if evidence is produced demonstrating that another form of ownership was used.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
