South Carolina Wills vs. Trusts
Navigating South Carolina estate planning doesn’t have to be overwhelming. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive wills vs trusts guide breaks down South Carolina’s unique laws to help you make the right choice for your legacy.
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South Carolina Will Requirements
A South Carolina Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old (or married or an emancipated minor)
- Format: Must be in writing
- Signature: Must be signed by the testator or another individual signing for the testator at the testator’s direction and in the testator’s presence
- Witnesses: Must be signed by at least two witnesses who either observe the testator’s signing or hear the testator acknowledge that the signature is authentic
Interested Witnesses
A South Carolina will is not invalidated if a witness (or witness’s spouse) has a beneficial interest in the will. 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
- The provision voiding devises to an interested witness is inapplicable if the will has at least two other disinterested witnesses
Self-Proved Wills
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. The attestation:
- Can be executed simultaneously with the will or at a later date
- 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 testator’s own volition while the testator had adequate legal capacity and was not under any undue influence. South Carolina’s Probate Code, at §62-2-503, includes a proposed form for the affidavit.
Incorporation by Reference
South Carolina law permits wills to incorporate by reference other documents if:
- The will clearly expresses an intent to incorporate the other document
- The other document is sufficiently described to allow identification
Memorandum of Personal Property
A South Carolina will can incorporate by reference a written statement or list disposing of tangible personal property not otherwise addressed in the will. This “memorandum of personal property”:
- Must be written in the testator’s handwriting or signed by the testator
- Must identify the devised items and intended recipients with reasonable certainty
- Can be created before or after a will is executed
- Can be altered by the testator
- Cannot be used to distribute cash, items used in trade or business, or real estate
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Amendment, Revision, and Revocation of South Carolina Wills
Amending a South Carolina Will
South Carolina wills can be amended through:
- Execution of a codicil (a will addendum)
- A later will meeting all formalities for creation of a will
Revoking a South Carolina Will
South Carolina wills can be revoked through:
- The testator’s intentional destruction of the will (e.g., through burning or tearing the document)
- Execution of a later will either expressly or implicitly revoking the prior will
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 testator’s estate. If a later will does not completely dispose of the testator’s 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.
Automatic Revocation by Divorce
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. Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.
Provisions deemed revoked due to divorce are revived if the testator later remarries the same spouse. In South Carolina, revocation by divorce also applies to living trusts, life insurance and annuity designations, and transfer-on-death accounts.
Marriage or Birth After Will Execution
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. This presumed share is inapplicable if:
- There is evidence that the omission was intentional
- The decedent made other arrangements for the spouse or child intended to be in lieu of a testamentary devise
- (For an after-born child) The decedent’s will leaves substantially all of his or her estate to a surviving spouse
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Holographic and Oral Wills
South Carolina law does not recognize holographic wills. 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 “nuncupative”) 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 §67-7-101, et. seq.
Requirements for a Valid South Carolina Trust
For a trust to be valid under South Carolina law:
- The trust’s purposes must be lawful, not violative of the state’s public policy, and possible to achieve
- The trust’s purpose must be to benefit the interests of the trust’s beneficiaries
- The settlor must have adequate capacity to create the trust (for revocable trusts, the standard for capacity is the same as for wills)
- The settlor must express an intent to create a trust
- The trust is voidable to the extent it was induced through fraud, duress, or undue influence
Oral Trusts
Though most trusts are evidenced by a written instrument setting forth the trust’s terms, South Carolina law recognizes oral trusts. However:
- The creation and terms of an oral trust must be established by clear and convincing evidence
- Trusts involving real estate must be evidenced by a written instrument signed by the trust’s creator
- If an agreement creating a trust is in writing, it must be signed by the settlor (or someone else on the settlor’s behalf, at the settlor’s direction, and in the settlor’s presence)
Trust Creation Methods
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 settlor’s declaration that property is owned as trustee
- Exercising a power of appointment in favor of a trustee
Required Trust Elements
A South Carolina trust must have:
- A trustee with actual duties to perform (the trustee has a duty to administer a trust prudently and in good faith)
- A definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and qualifying non-charitable trusts)
A South Carolina trust’s sole current and future beneficiary cannot also be the trust’s sole trustee. Merger of title occurs (and the trust is therefore severed) if both:
- A trust’s sole trustee becomes its sole current and future beneficiary, and
- Legal and equitable title to the applicable trust property are of the same quality and duration
Trustee Responsibilities
Trustees who manage assets are governed by the “prudent investor rule,” though that rule may be expanded, restricted, or eliminated by the trust instrument.
Creditor Protection
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in a trust, South Carolina protects beneficiary interests from attachment if a trust includes a “spendthrift provision” or provides for discretionary distributions. 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).
However, spendthrift provisions do not prevent attachment for satisfaction of certain domestic support obligations (unless the trust in question is a “special needs trust” or similar trust designed to preserve Medicaid or SSI eligibility).
Creditors of a revocable trust’s settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). In the case of irrevocable trusts, settlors’ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlor’s benefit.
Revocability
South Carolina law assumes trusts are revocable unless the trust’s terms expressly provide that it is irrevocable.
Trust Termination
South Carolina trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purpose becomes unlawful or impossible
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.
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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Special Considerations
Estate Taxes
South Carolina does not impose estate taxes or inheritance taxes. Large South Carolina estates may still be liable for the federal estate tax.
Simplified Probate
South Carolina allows for a simplified probate process for small estates—defined as $25,000 or less, excluding liens, exemptions, administrative expenses, funeral costs, and medical bills relating to the decedent’s last illness.
If an estate is eligible for small estate probate:
- The personal representative files a petition with the probate court
- Provides notice of the estate to potential creditors
- 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
Along with living trusts, South Carolina law offers multiple options for non-probate transfer of assets:
Spousal Rights
Intestate Succession
In South Carolina, the surviving spouse of an intestate decedent:
- With no children receives the decedent spouse’s entire estate
- If the decedent spouse had children, the surviving spouse receives a one-half share
Elective Share
To protect against spousal disinheritance by will, South Carolina law provides for a waivable spousal “elective share,” which is a minimum interest in a decedent spouse’s estate in favor of a surviving spouse.
- The spousal elective share is equal to one-third of the value of the decedent’s probate estate
- The probate estate includes everything that passes through the decedent’s will or through intestacy, plus assets held in certain “illusory” revocable trusts—reduced for expenses relating to funerals and administration and valid claims against the estate
- 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
Spousal Exemption
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. The spousal exemption can be satisfied from other assets if the listed assets are insufficient.
Tangible Personal Property Presumption
South Carolina also assumes that all of a decedent spouse’s 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.
The spousal joint-tenancy presumption does not apply to property:
- Acquired by the decedent prior to the marriage
- Received through a gift or inheritance
- If evidence is produced demonstrating that another form of ownership was used
Need help creating the right estate plan for your South Carolina family?
Our estate planning specialists can help you navigate South Carolina’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Spousal Rights Impact | Subject to one-third elective share | Certain trusts may reduce elective share exposure |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Spousal Rights Impact
Wills: Subject to one-third elective share
Trusts: Certain trusts may reduce elective share exposure
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of South Carolina.
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Frequently Asked Questions
Do I need a lawyer to create a will in South Carolina?
While South Carolina law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately. South Carolina has particular rules regarding interested witnesses and document execution that can be difficult to navigate without professional guidance.
What happens if I die without a will in South Carolina?
If you die without a will in South Carolina (intestate), state laws determine how your assets are distributed. Your spouse would receive your entire estate if you have no children. If you have children, your spouse receives half your estate, with the remainder going to your children. Without a spouse or children, your assets go to parents, siblings, or other relatives according to South Carolina’s intestacy hierarchy. Additionally, the probate court would appoint an administrator for your estate and guardians for minor children without considering your preferences.
What is South Carolina’s tangible personal property presumption for married couples?
South Carolina has a unique provision that presumes all tangible personal property owned by a deceased spouse is actually owned as joint tenants with right of survivorship with the surviving spouse—unless that property is specifically addressed in the deceased spouse’s will or personal property memorandum. This means that items like furniture, jewelry, artwork, collectibles, and household goods automatically pass to the surviving spouse outside of probate, regardless of the rest of the will’s provisions. This presumption doesn’t apply to property acquired before marriage, received as gifts or inheritances, or where evidence shows a different ownership arrangement was intended. This provision simplifies estate administration for married couples but can create complications in blended families.
How does South Carolina’s elective share work?
South Carolina provides surviving spouses with an elective share equal to one-third of the decedent’s probate estate. This is a right that exists regardless of what the will says and serves as protection against disinheritance. The probate estate includes assets passing through the will or intestacy, plus certain “illusory” revocable trusts. Importantly, non-probate assets that pass to the surviving spouse (like life insurance, jointly-held property, and certain trust assets) count toward satisfying this one-third share. This means a spouse could effectively be disinherited from will assets if they receive enough non-probate assets to satisfy the one-third requirement. The surviving spouse must affirmatively elect this share within 8 months of the decedent’s death or 6 months after the will is admitted to probate.
Are handwritten wills valid in South Carolina?
South Carolina does not recognize purely holographic (handwritten) wills. Even if a will is entirely handwritten by the testator, it must still satisfy all other legal requirements for a valid South Carolina will, including being signed by two witnesses who observed the testator sign or acknowledge the document. A handwritten document without proper witness signatures will not be accepted as a valid will in South Carolina probate court. This makes South Carolina’s requirements stricter than many states that do recognize holographic wills as valid testamentary documents with minimal or no witness requirements.
Can I disinherit my spouse in South Carolina?
Completely disinheriting a spouse in South Carolina is difficult due to the spousal elective share law, which gives a surviving spouse the right to claim one-third of the deceased spouse’s probate estate regardless of what the will states. Additionally, the law presumes that all tangible personal property not specifically mentioned in a will is owned jointly with the spouse with right of survivorship. However, there are legal strategies that can minimize what a spouse receives. These include making significant lifetime gifts to others, using irrevocable trusts that aren’t counted in the elective share calculation, purchasing life insurance payable to other beneficiaries, and executing a valid prenuptial or postnuptial agreement in which your spouse waives their elective share rights.
What’s unique about South Carolina joint tenancy laws?
South Carolina has a distinctive approach to joint tenancy compared to many other states. While most states presume that joint tenancy includes a right of survivorship (meaning the surviving owner automatically inherits the deceased owner’s share), South Carolina takes the opposite approach. In South Carolina, joint ownership is presumed NOT to include survivorship rights unless the document creating the joint tenancy expressly provides for it. Without clear survivorship language, joint ownership is treated as a tenancy in common upon death, meaning the deceased owner’s share passes according to their will or intestacy laws rather than automatically going to the surviving owner. This makes careful documentation of ownership intentions particularly important for South Carolina property owners.
Does South Carolina recognize transfer-on-death deeds?
No, South Carolina does not currently recognize transfer-on-death (TOD) deeds for real estate. This means South Carolina property owners cannot use beneficiary designations to transfer real estate directly to heirs outside of probate—a tool that is available in many other states. Similarly, South Carolina does not allow TOD designations on vehicle titles. For South Carolina residents seeking to transfer property without probate, alternative options include creating a revocable living trust, holding property as joint tenants with right of survivorship (making sure to explicitly state the survivorship right), or in some cases using a life estate deed where appropriate. Each approach has different legal implications and tax consequences.
What is South Carolina’s $25,000 spousal exemption?
South Carolina provides surviving spouses with a special priority exemption of up to $25,000 in value from the deceased spouse’s estate. This exemption applies specifically to household furniture, automobiles, furnishings, appliances, and personal effects. This means the surviving spouse can claim these items up to the $25,000 value limit before any other distributions are made from the estate, including payments to creditors. If these specific categories of property are insufficient to reach the $25,000 threshold, the exemption can be satisfied from other assets in the estate. This provision ensures that surviving spouses can maintain their basic household goods and personal items regardless of other estate provisions or creditor claims.
