Your Last Will and Testament
To make a valid last will and testament, you must be of “sound mind,” over age 18 and your testament must be in writing, signed by you and witnessed by two witnesses. The witnesses should be persons who will not receive property under the will. Otherwise, they may forfeit anything that is left to them from your estate. However, the will is still valid and the other provisions contained in it remain enforceable,
The exact procedure in South Carolina to sign and witness a will is strict and a failure to follow the rules exactly can result in it being found invalid by the SC probate court. Therefore, it is strongly suggested that you consult with an attorney. When an attorney drafts and witnesses your estate plan, in most cases the court finds that it is valid and cannot be successfully contested.
It is not expensive to have a South Carolina estate attorney properly draft your last will and testament for you. There are many forms available on the internet but it is easy to make mistakes or leave out important points in writing your own or using an internet service.
You can change or revoke your will at any time before you die, so long as you are still competent. You never lose the right to change your mind at a later time. You can always revoke your current one and make another as long as you are not under a mental disability. .
It is important that you not write on it or make any changes directly on the document. Such writings are usually not effective and may even revoke the entire testament or parts of it. The very best way to alter or cancel a will is by simply executing another one. You can use a codicil to make changes but this is not recommended. A “codicil” is an amendment or change that must be witnessed and executed just like the original. However, a codicil can be easily removed and destroyed by someone without your knowledge or permission. In this computer age it is just as easy to completely restate your will and destroy the old one.
In addition to the two witness signatures, the will should also be properly notarized in order to be "self-proving" when filed with the probate court.
Estate Planning Attorneys
Wayne Patterson
South Carolina Estate Planning Attorney
10 Century Dr. Suite B
Greenville, SC 29607
864-270-7973
What if I die without a last will or trust?
You are said to have died “intestate” and, with certain exceptions, your assets are distributed according to South Carolina law rather than your estate plan. The South Carolina intestate law is complex. For example, depending on the nature of your family, your estate may be distributed entirely to your spouse or may be divided among your spouse and surviving children. If you want to distribute your estate in amounts or to beneficiaries contrary to the South Carolina intestacy statute, you must have a will that states you wishes.
South Carolina Intestate Succession Law
Why do I need a last will or trust?
You
need an estate plan if you want to (a) make a specific
bequest of real or personal property; (b) make special provisions for
certain property or individuals; (c) name your executor (now called a personal representative); (d) provide for charities or individuals
outside your immediate family; (e) name a guardian for minor children;
(f) disinherit someone;(g) leave an entire estate to a spouse who would
receive only a portion of the estate under South Carolina law. For a somewhat humorous look at why people refuse to propley plan for their death and the not so humorous consequences that may result see:
Who can make a last will or trust?
South Carolina probate law permits anyone 18 or older, with sound mind and memory and not under restraint, to make an estate plan consisting of a will or trust. The person making the will is called the “testator.” The person making a trust is called a "settlor". “Sound mind and memory” means you understand: (a) the estate plan act of making a will or trust; (b) the general extent of your property; (c) your relationship with your family; and (d) to whom you are giving property through the will or trust. “Not under restraint” means you were not defrauded or unduly influenced when you executed your estate plan.
What must I do to make a last will or trust?
Your will or trust estate plan must be in writing. It may be handwritten or typed. You must date and sign the will or trust on the last page in front of two competent witnesses, who see you sign the will and hear you acknowledge that the estate plan is yours. The witnesses must be at least 18 years of age. The witnesses must sign the will or trust and they can also testify that you were of sound mind and memory and not under restraint. Another person may sign the estate plan for you if you specifically direct the person to do so, and the person signs in your and the witnesses’ presence. For a will or trust to be self-proving, it must also be notarized.
Where should I keep my last will or trust?
Keep the original of your estate plan in a safe place where it may be found easily after your death. Leave a copy with the attorney who wrote it for you. Tell your executor or trustee where the original can be found or give a copy to the executor. For estate plans left in a safe deposit box, be sure that someone you trust has the right to access the box.
What kind of property can be distributed by a last will and testament?
Generally, any land or personal property owned by you at the time of your death can be distributed to beneficiaries by your will or trest. Exceptions are (a) property interests that terminate at death (e.g. life estates); (b) bank accounts or land held jointly with the right of survivorship; (c) insurance death benefits made payable to specific beneficiaries; (d) payable on death bank accounts; and (e) transfer on death deeds.
Must the executor or trustee of a South Carolina estate plan be a South Carolina resident?
No. Your executor or trustee does not have to be a South Carolina resident although that is recommended.
Can I disinherit my spouse or children in my last will?
If your spouse is omitted from or disagrees with the will, she or he can instead choose to take that part of the estate she or he can elect to take the spousal elective share of one third of your estate plan including assets in a trust. To make a claim for elective share the surviving spouse must, during the surviving spouse’s lifetime, file a written petition for elective share with the Probate Court and the executor within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. A child, however, can be disinherited, but you should state this intention in your will.
Seifert v. Southern Nat. Bank of South Carolina, 305 S.C. 353 (1991) Assets in trust subject to spousal elective share.
Do my beneficiaries have any rights before my death?
No. A will or revocable trust estate plan does not take effect until your death. You can change or revoke the will or trust at any time before your death. When you revoke a will, it means that the will has been canceled and is no longer valid. Therefore, your beneficiaries do not have any rights before your death.
How can I change my last will or trust?
You can make additions to your will by signing a “codicil,” with all the formalities of a will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed will by writing revisions into the will, even if you initial and date the changes. You can also amend or restate your trust. However, If major changes are needed, consider making a new will or trust.
Must a last will be presented to probate court?
Yes, except in rare cases. A will can legally affect property distribution in accordance with your estate plan only if it is filed in probate court. Beneficiaries cannot receive land through a will until the will has gone through probate.
Must a trust be presented to probate court?
No, and this is the primary advantage of a trust. A will and your assets are public information once filed in the South Carolina probate court. A trust is private and prevents your assets from being tied up in the probate process.
What if I lose, destroy or spoil my last will or trust?
A copy may be valid if it was dated and signed in front of two witnesses and had not been revoked. If your will or trust is lost or destroyed, make a new one.
How are last wills revoked?
A will is revoked in any one of the following events: (a) if you, the testator, or someone in your presence and at your request or express written direction, tears, obliterates or destroys the will with the intention of revoking it; (b) you make a new, valid will; or (c) you make a codicil revoking rather than changing the will. In addition, if you are divorced, your marriage has been dissolved or annulled or you are separated with a separation agreement, any property granted under a will to a former spouse is revoked, unless a will expressly provides otherwise. However, once your South Carolina divorce or separation is granted, you need to immediately revise your estate plan accordingly.
Are verbal wills valid?
No, a verbal will is not valid.
Are last wills and trusts from other states valid in South Carolina?
Yes, if it is also validly executed in the state in which it was made. Consequently, the will or trust must be made according to the laws of the state in which it was made.
Can I avoid Probate?
In many cases you can. Probate is a legal process that transfers your property after your death. However, you can avoid certain property passing through probate by: (a) holding property jointly with the right of survivorship; (b) establishing inter vivos (living) trusts during your lifetime; (c) establishing payable on death bank accounts, or (d) creating transfer on death deeds. These alternatives should only be pursued after talking with a South Carolina estate attorney.
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Avoiding a Will Contest
Section 62-3-407 of the South Carolina Code of Laws, sets forth the burden of proof and burden of persuasion in contested will cases. S.C. Code Ann. § 62-3-407 (Supp. 2005). This section provides in pertinent part:
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.
Where a South Carolina Estate Planning attorney has drafted your will and has determined that no undue influence,
fraud, duress, mistake, revocation, or lack of testamentary intent or
capacity exists in the execution of your Last Will and Testament, the probate court will usually find that the will is valid. While there are many places online you can find simple wills, the cost of having it properly drafted by an attorney is worth the minimal extra cost to be sure that your will is valid. It is not unusual for the attorney to videotape the signing of the will or to have the party examined by a medical professional if there may be a concern that the party does not have testamentary capacity to execute a will.
Will Contest Case Law
What is the time limit for filing a will contest? S.C.Code Ann. § 62-3-108 states that a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of eight months from the informal probate or one year from the decedent's death.
In re Theisen, 382 S.C. 213, 676 S.E.2d 133 (2009)
The decedent died on November 16, 2004, and on January 11, 2005, the personal representatives of the decedent’s estate filed his last will and two codicils for informal probate in New Jersey (as specified by the will). On March 3, 2005, one of the decedent’s daughters filed a complaint in South Carolina requesting a determination of the proper forum for probating the will. The court held that principles of comity required that New Jersey courts determine any jurisdictional issues. Eleven months later, on February 3, 2006, the same daughter filed a petition in South Carolina challenging the validity of the will, but the trial court granted summary judgment to the defendants on the grounds that the action was barred by the eight-month limitations period provided in S.C. Code Ann. § 62-3-108(3). On appeal, the South Carolina Supreme Court affirmed, holding that the statute began to run when the will was filed for informal probate in New Jersey and rejecting the daughter’s argument that the statute did not apply to out-of-state probate proceedings.
In re Estate of Anderson, 381 S.C. 568, 674 S.E.2d 176 (Ct. App. 2009).
The
deceased executed a new last will and testament just a few months before she died, leaving
her entire estate to her two grandchildren and completely excluding her only surviving child, a daughter. After the mother's death, her daughter filed a
petition challenging the validity of the will, asserting that it was
void because of undue influence. The Florence County SC probate court found that the will
was valid, and the South Carolina Court of Appeals affirmed. The court
acknowledged that a presumption of undue influence was raised by virtue
of the fact that one of the beneficiaries was the decedent’s attorney in
fact at the time the new will was executed, but held that the
beneficiaries presented sufficient evidence to rebut the presumption and
that substantial evidence in the record supported a finding that the
will was valid and not the result of undue influence.
Ex Parte Wheeler v. Estate of Green, 381 S.C. 548, 673 S.E.2d 836 (Ct. App. 2009).
Under
the decedent’s will, the executor (personal representative) of the estate was
required to sell the real estate in the manner “most
advantageous financially”. A potential buyer
named Powers expressed an interest in purchasing the
residence and asked the personal representative for a copy of the
appraisal. An appraisal was conducted and valued the residence at
$320,000, but the personal representative failed to forward the
appraisal to Powers. Subsequently, the personal representative accepted
an offer from another buyer for $325,000 and petitioned the Probate
Court for approval of the sale. Upon learning of the petition, Powers
tendered a written offer to purchase the residence for $385,000. Powers
and the heirs answered the petition alleging that the personal representative had breached her fiduciary
duty by failing to consider Powers’ substantially higher offer. The
Probate Court denied the petition, found that the personal
representative had breached her fiduciary duties, and approved the sale
of the residence to Powers. On appeal, the circuit court reversed and
approved the personal representative’s petition. The South Carolina
Court of Appeals affirmed, holding that because Powers did not actually
make a formal offer on the residence in the four-plus months following
the decedent’s death, the personal representative would likely have
breached her fiduciary duties had she not accepted the initial and
sole offer.
The personal representative of the estate has extremely broad powers and the courts will usually uphold their decision unless you can show self dealing. The personal representative is protected by what is called the "business judgment rule".
Five Reasons Why I Don't Have a Last Will and Testament
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