South Carolina State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Minimum age requirement to:

  • Distribute property by will: 18, but if married no minimum age (Section 62-2-501)
  • Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes:

  • Estate tax: Equal to federal credit for state death taxes (Section 12-16-510)
  • State gift tax:Inheritance tax: No inheritance tax (Section 12-16-510)
    • Imposes a state gift tax (Section 12-16-510)
    • Anatomical Gift Act (Section 44-43-10)
  • Inheritance tax: No inheritance tax (Section 12-16-510)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 62-2-102 to 62-2-103)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • One-half (1/2) of your estate to the surviving spouse, and
      • The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • One-half (1/2) of your estate to the surviving spouse, and
        • The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
        • No children and both of your parents of deceased:
          • All of your estate will pass to your spouse
        • No children, but at least one of your parents survives you:
          • All of your estate will pass to your spouse
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then to linear ancestors equally or to their children according to their per stirpes share. If none, then to aunts and uncles equally or to their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 62-2-302), andChildren, born or adopted (Section 62-2-201)
    • Surviving spouse must be given one-third (1/3) of your estate (Section 62-2-201)
  • Children, born or adopted (Section 62-2-201)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced spouse (Section 62-2-507)
  • You get married without changing your will that does not provide for your new spouse:
    • Will is not revoked and spouse may still be entitled to shares under state intestate law (Section 62-2-301)

Witnesses:

  • Minimum number of witnesses required: Two (Section 62-2-502)
  • Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void above any amount entitled to under state intestate law, unless there are two other disinterested witnesses  (Section 62-2-504)
  • Requirements to be a witness, witnesses must:
    • be an adult or a notary public,
    • not be related to you by blood, adoption, or marriage,
    • not be entitled to anything in your will,
    • not be finically responsible for your healthcare
    • not the beneficiary of your life insurance policy,
    • not your healthcare provider or employee of your healthcare provider, and
    • if you are a resident in a hospital or nursing facility, then one of your witnesses must also be an ombudsman designated by the State Ombudsman Office of the Governor

Property ownership (Section 27-7-40):

  • Common law state
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is not recognized in this state
  • Tenancy in common and joint tenancy recognized but joint tenancy requires express and clear language of the right of survivorship

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 62-2-503)
  • Living will: Declaration of a Desire for a Natural Death (Section 44-77-50) requires a determination by two physicians that you are in a terminal condition and your death will result without using life-sustaining procedures
  • Health Care Power of Attorney (Section 62-5-501)
  • Durable Power of Attorney (Section 62-5-501)