PUT IT IN WRITING: AVOID SOUTH CAROLINA’S INTESTACY LAWS

When a person dies without a valid will in South Carolina, they are said to have died “intestate.” This situation triggers a specific set of laws that determine how the deceased person’s property will be distributed among surviving family members.

When a South Carolina resident dies intestate, their estate is distributed according to South Carolina’s intestacy statute, which is the framework for distributing both real property (like homes and land) and personal property (such as bank accounts, vehicles, and personal effects) when someone dies without a valid will.

The distribution of an intestate estate in South Carolina follows a specific hierarchy. When a decedent leaves behind a surviving spouse and children, the estate is typically divided equally, with one-half passing to the surviving spouse and one-half passing to the decedent’s issue.

Under South Carolina law, “issue” refers to all lineal descendants, while “heirs” includes the surviving spouse and all other persons entitled to inherit under the intestacy statutes. It’s important to note that the legal definition of “child” includes individuals entitled to inherit as children under the intestacy laws and excludes stepchildren and foster children.

When someone dies intestate, their estate must still go through probate. The court will appoint a personal representative to handle the estate’s administration. This can either be someone who applies to be the Personal Representative, or if no one applies, the court may appoint an interested party or special administrator to serve. There is a priority for those who want to serve as personal representative of an intestate estate, starting with the surviving spouse, then children.

It is important to note that if real property was owned by spouses as Joint Tenants with Rights of Survivorship, then at death the property is transferred immediately by operation of law to the surviving spouse and avoids probate. When the primary residence passes via rights of survivorship, there is a presumption that the tangible personal property within the home passes via survivorship as well.

South Carolina’s intestacy laws highlight the importance of proper estate planning. By dying intestate, you lose control over how your assets are distributed at your death. If you want to leave assets to a friend, charity, fiancé, stepchild, or other potential beneficiaries, South Carolina’s intestacy laws won’t accommodate those desires. Creating a comprehensive estate plan customized to you and your family ensures your assets are distributed according to your wishes, in a way that maximizes the benefit to each beneficiary.