Q. Must a person be a certain age to write a valid Will in South Carolina?
A. A single person must be at least eighteen years of age to write a valid Will under South Carolina law. A married person of any age may write a valid Will.
Q. Must a person be mentally competent to write a valid Will in South Carolina?
A. Yes. Our cases have held that the Testator (the person who signs the Will) must basically know what assets he or she has and to whom he or she wishes to leave those assets. It has generally been held that this degree of competence is somewhat less than the technical medical meaning of the word competent. If there is any questions concerning a person's competence and a Will contest is expected concerning competence after the death of the Testator, then it may be a good idea to take precautions to preserve evidence of the impressions of the witnesses concerning the Testator's understanding of his or her assets and knowledge of the beneficiaries.
Q. Are there any particular formalities that should be observed in signing the Will?
A. How many witnesses are required? For deaths on or after July 1, 1987 (effective date of the new South Carolina Probate Code), there must be two witnesses to a validly signed Will. The witnesses must either see the Testator sign the Will or have the Testator tell them that he or she signed the Will. The particular form to properly execute a Will is set forth in the South Carolina Code of Laws.
Q. Is it necessary to keep up with the two witnesses?
A. Provisions of the new South Carolina Probate Code allow Wills to be executed, attested, and made self-proving. The Code specifically sets forth a form which, if followed, ensures the Will is both validly signed and can be admitted to probate after the death of the decedent without having to take the testimony or appearance of either of the two witnesses. The general thought among the state's leading estate planners is that every Will executed now should contain the self-proving language.
Q. Is an out-of-state Will valid in South Carolina?
A. An out-of-state Will will pass title to property if a person dies while a resident in South Carolina, if the Will was properly executed according to the law of the state in which the Will was signed. It is not absolutely necessary for a person who moves into South Carolina with a Will which was properly executed in another state to execute a new Will. However, because state laws vary significantly it is foolish not to have an out-of-state Will reviewed by a South Carolina attorney to make certain that there are no unexpected problems. Some states allow both the husband and wife to sign a single Will (commonly called a "joint and mutual Will"), but there is no provision allowing this type of Will under South Carolina law.
Q. May a Will be changed after it is signed?
A. A Will may be changed at any time up to the death of the Testator. The proper way to change a Will is to execute a Codicil. A Codicil is a document which basically states that the Testator has already written a Will and wishes to change that Will in certain ways. It then will state the changes which are to be made in the original Will and then states that the original Will is in all other respects to remain unchanged. A Codicil must be signed with the same formalities as a Will. There may be any number of Codicils to a Will, but Codicils leave "tracks" showing the inclusion and exclusion of beneficiaries over the period of time in which the Codicils were written. Because several different Codicils may become confusing, it is generally advisable not to execute more than one or two Codicils. Further changes are best done by writing a new Will.
Q. Is it possible to purposely leave a surviving spouse out of a Will?
A. The provisions of the current South Carolina Probate Code offer protection to surviving spouses. Two different provisions are designed to protect the spouse, and the application of the provisions depends upon whether the Will was signed before or after the marriage. If the Will was signed prior to the marriage, then the surviving spouse has an election to take the share the spouse would have taken had the decedent died without a Will. For example, if a man has a Will leaving everything to his two children (by his first wife) and subsequently remarries and dies, survived by his second wife and children of his first marriage, the surviving spouse (wife #2) will have an election to take the share she would have taken had he died without a Will. Thus, the surviving spouse will have a right to elect to take one-half of the property passing under the terms of the Will, despite the fact that the Will leaves everything to the husband's children only. If the Will was signed after the marriage, the surviving spouse has an election to take a one-third elective share. For example, if a husband signed his Will after his marriage leaving everything to his children, and then died survived by his spouse and two children, the surviving spouse would have an election to take one-third of the property passing under the Will. Thus, since marriage now gives rights of inheritance to the surviving spouse, people who are marrying sometimes enter into pre-marital agreements in which they agree ahead of time to include or delete each other from their estates.
Q. Does all property pass according to the terms of a person's Will?
A. No. Property passing according to the terms of the Will is called probate property. Probate property includes such assets as the decedent's interest in real estate, cash in the decedent's name, checking and savings accounts in the decedent's name alone, personal and household effects, vehicles, stocks and bonds, and other similar joint assets owned by the decedent alone. Many assets do not pass according to the terms of the Will. These are called non probate assets. For example, property owned as joint tenants with right of survivorship passes automatically at the moment of death to the surviving joint owner. Thus, a checking account or savings account in joint names does not pass according to the terms of the Will but passes to the surviving joint depositor named on the account. Life insurance passes to a named beneficiary which is usually an individual. Thus, life insurance does not pass according to the terms of the Will unless the estate of the insured is named as the beneficiary. Company provided retirement benefits, IRAs, and other employee benefits are usually paid to an individual and do not pass according to the terms of the Will. When a person dies without a Will (intestate), only probate property passes according to the laws of intestate succession and the non-probate property passes to the named beneficiaries or joint owners according to the normal rules for the passage of non-probate property.
Q. If a house is owned by two people, will it pass to the survivor if one dies?
A. In most cases, if real estate is owned by two people in South Carolina, it is owned by them as tenants in common. This means each owns a one-half interest, and if one dies that one-half interest passes according to the terms of the Will or according to the law of intestate succession. Thus, the property does not automatically pass to the surviving joint owner in most cases. In some cases, although it is unusual, real estate may be owned by two people with automatic right of survivorship. This is called joint tenants with right or survivorship. In this case, the property will pass to the survivor automatically if one dies. Although practices vary from county to county, it is fairly rare for real estate to be owned by two people as joint tenants with right of survivorship.
Q. Is it possible to write your own Will?
A. Yes, but it is foolish. South Carolina laws do not require a lawyer to be involved in the writing of a Will, but the Will must be properly worded and witnessed. The courthouses of our state are full of cases which give evidence to the fact that it is foolish to prepare a Will without the help of a qualified attorney. I have personally seen cases where the attorney's fees for bringing an action to request the court to interpret provisions of a self-made Will ran more than one hundred times what the attorney's fee would have been to prepare the Will for the Testator. The only way to make certain that the Will is drawn in a way that will carry out your personal and tax objectives is to have it prepared by an attorney who is qualified to draft Wills and give tax advice.
Q. How can you tell which attorneys are specialists in estates and probate?
A. Many lawyers are, by their own choice, becoming more specialized. Like physicians, lawyers are finding that the myriad of new and complex tax laws and probate changes are simply hard to keep up with. The Commission on Continuing Lawyer Competence of the South Carolina Supreme Court certifies qualified lawyers as Specialists in Estate Planning and Probate Law. There are about forty-five such specialists statewide. You may call the Commission at 803-799-5578 to obtain the names of those in your area.
Q. After a Will is signed, where should it be kept?
A. It is important that the Will be kept in a place where it cannot be tampered with or "lost," either before or after the death of the Testator. There is no provision under South Carolina law for having a Will admitted to probate before the death of the Testator, so it is not possible to go ahead and have the Will filed at the probate court before someone dies. If it is feared that someone may in some way interfere with a Will before it can be admitted to probate, a simple solution may be to give the Will to the person or bank who is named as Personal Representative under the Will. One other possible solution would be to enter into a Revocable Trust Agreement with a bank trust department or an individual as trustee and to spell out the Testator's wishes concerning who will receive the property under the trust agreement. The property which the Testator owns may be transferred to the trust during the Testator's lifetime, avoiding any possibility that a false or old Will could be offered to probate to upset the intended plan of distribution.
Q. Is it possible to revoke a Will simply by tearing it up?
A. Yes, but only if the destruction is done by the Testator with an intention to revoke the Will. Our state law does not rule out the possibility of a Will being destroyed by someone other than the Testator and yet being admitted to probate in its damaged form.
Q. What if a beneficiary dies before the Testator?
A. Unless the Will provides otherwise, if the beneficiary was a lineal descendant of a great grandparent of the Testator, the beneficiary's issue (children equally, with grandchildren taking their predeceased parent's share) will take their parent's share automatically. Beneficiaries other than a lineal descendant of a great grandparent of the Testator do not have this privilege. So, if a Will leaves property to a friend who dies before the Testator, the friend's children do not take unless the Will specifically so provides.
Q. Who pays the state and federal estate taxes?
The Will should specifically state upon whom the burden of the estate taxes will fall. Absent direction in the Will, every beneficiary pays their pro-rata share of the taxes generated except for the surviving spouse and charitable beneficiaries. The surviving spouse and charities receive their bequests free from any estate taxes and properly pay none of this burden.