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Wills, Trusts, and Estates
Charleston School of Law
Gershon, Ira Richard

When an individual dies without a valid will, the SC Probate Code determines what happens to his or her estate. The Code represents the legislature’s best guess of how you would want to distribute your estate and assumes that you would prefer to give your property to a relative instead of someone with no familial connection.

Which Property is Affected?

Under §62-2-101, the intestacy statute applies to:
· Any property actually owned by testator at death; and
· Property that is not effectively passed by a valid will.
Because the testator must actually own the property, the rules of intestate succession do not apply to:
· Property owned as joint tenants with right of survivorship
· Third-party contracts such as life insurance or retirement benefits
After the decedent’s property is used to pay debts, taxes, funeral expenses, and administration expenses, the remainder (if any) is distributed to the decedent’s heirs.

Issue and Collateral Heirs

Issue include people who would not exist except for the individual in question, such as children and grandchildren. Adopted children are counted as issue for the adoptive parents but not for the natural parents.
Illegitimate children are always considered issue of the mother for intestacy purposes. They are considered issue of the father when one of the following conditions is met:
· Natural parents participated in a marriage ceremony before or after the birth (even if the marriage is void); or
· Paternity is established by adjudication by clear and convincing proof before or after father’s death. If after the father’s death, it must begin no later than:
o Eight months after father’s death; or
o Six months after appointment of a personal representative for the father’s estate.
Collateral heirs include people would could exist without the person in question, such as siblings.
Lineal ancestors include people above you in your direct line, such as parents and grandparents.

Share of Surviving Spouse

A surviving spouse is not considered a relative under the Code. However, the surviving spouse is granted special status. Section 62-2-102 determines the distribution of intestate succession when a surviving spouse exists.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue of the decedent, the entire intestate estate;
(2) if there are surviving issue, one-half of the intestate estate.

Protection of the Surviving Spouse

States have enacted varying statutes and exemptions to protect the surviving spouse and minor children.

Homestead Statutes

Some states have enacted homestead statutes to ensure the decedent provides the surviving spouse with at least a life estate in the marital homestead. The surviving spouse may be able to occupy the homestead free from the possessory claims of the true title holders as well as retain it exempt from the claims of the deceased spouse’s creditors.
South Carolina does not have a homestead statute. However, this is not often an issue because spouses frequently own the homestead as joint tenants with rights of survivorship.
Joint tenancy with right of survivorship occurs only when the title document expressly includes the right of survivorship.

Personal Property Exemption

South Carolina provides a personal property exemption to ensure that the spouse and minor children are not left without their personal effects.

Marital Property Statutes

In Separate Property states, a surviving spouse can elect to take a share, even if deceased left a will that leaves nothing to her. South Carolina is a separate property state. For more information about the elective share, see “Spousal Elective Share” on page 21.
In Community Property states, the surviving spouse is protected against disinheritance because the surviving spouse already owns an undivided one-half interest in the marital property.

Takers When No Surviving Spouse

When a surviving spouse does not exist, the statute looks to issue, lineal ancestors, and collateral heirs to find a taker. This is defined in §62-2-103.

Distribution of Intestate Estate

The intestacy statute determines only the value that each taker receives; it provides no ability to determine which property goes to which taker. The administrator of the estate distributes the property to the takers.

Survivorship Requirement for Intestate Succession

An individual is considered a survivor for intestacy purposes only if he survives testator by 120 hours (5 full days). If an individual does not survive for 120 hours, he is considered to have predeceased the decedent. (§62-2-104)
However, this requirement does not apply when its application would result in a taking by the state under §62-2-105.
The purposes of this provision include:
· Avoid questions of survivorship
· Prevent closely successive probates when the taker had no opportunity to enjoy the property
This requirement applies only to intestate succession. A will can include a different

the recipient receives the difference from the estate.
Debts owed to the decedent are not charged against the intestate share of any heir except the debtor. However, if the debtor predeceases the decedent, the debt is not deducted from the share given to the debtor’s issue.

Slayer Disqualification

A person who feloniously and intentionally kills another cannot inherit from the estate of the victim, take as devisee under a will, or take as beneficiary under any insurance policy. (§62-2-803) The killer is treated as having predeceased the victim.
A felony conviction of intentional killing is conclusive proof to disqualify the person as an heir; however, it is not required and can be proved by a preponderance of the evidence in a civil proceeding.

Requirements for a Valid Will

To execute a valid will in SC, the will must meet the following requirements:
· In writing
· Signed by testator (or someone in his presence and by his direction)
· Signed by two credible witnesses who must witness either the actual signing or testator’s acknowledgement
A will that is regular on its face is presumed to have been properly executed.

Testator’s Signature

The following requirements exist for the testator’s signature:
· Placement: The signature must generally be placed at the foot of the last page.
· Form: Signatures in the following forms are sufficient:
o In pen, pencil, by stamp, printed, or typewritten
o By initials or by mark (as long as intended as a signature)
o Marks do not need to be accompanied by the testator’s name
· By another: Another person may sign the will for testator in his presence and with his consent. Consent may be given by words or gestures. Person signing may also be a witness.
· Outside Witness Presence: A testator need not sign in the presence of witnesses if the testator later acknowledges his signature or his will to the witnesses.


This section outlines requirements for witnesses to a will.