General DefinitionAny part of an estate not effectively disposed of by will passes by intestate succession to heirs. Sec. 62-2-101.
Order of DistributionThe intestate share of the surviving spouse is:
- If there is no surviving issue of the decedent, the entire intestate estate;
- If there are surviving issue, 1/2 of the intestate estate. Sec. 62-2-102.
The part of the intestate estate not passing to the surviving spouse or the entire estate if there is no surviving spouse, passes as follows:
- To the issue of the decedent. If they are all of the same degree of relation to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
- If there is no surviving issue, to the parents of the decedent;
- If there is no surviving issue or parent, to the siblings of the decedent with their heirs taking by representation;
- If there is no surviving issue, parent or sibling but the decedent is survived by one or more grandparents or issue of grandparents, 1/2 of the estate passes to the paternal grandparents or to their issue if both are deceased and the other 1/2 passes to the maternal relatives in the same manner;
- If there is no surviving issue, parent, sibling, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, 1/2 of the estate passes to the surviving paternal great-grandparents in equal shares or to their issue if none of the great-grandparents survive and the other 1/2 passes to the maternal relatives in the same manner; Sec. 62-2-103.
If there is no other taker, the intestate estate passes to the State of South Carolina. Sec. 62-2-105.
Common Law or Community PropertySouth Carolina is a common law property state.
CapacityAny individual 18 years of age or older who is of sound mind may make a will. Sec. 62-2-501.
DraftingEvery will must be in writing and signed by the testator or in the testator's name by some other person in the testator's presence and by his direction. A valid will must be signed by at least two persons whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Sec. 62-2-502.
HeirsAn "heir" is any person, including the surviving spouse, who is entitled, by intestate succession, to the property of a decedent. Sec. 62-1-201(20).
ModificationsA will, or any part thereof, maybe revoked by the creation of a new will which revokes the old will or part expressly or by inconsistency. A will or a provision therein may also be revoked by burning, tearing, canceling, obliterating or destroying it with the intent and purpose of revoking it or by another person in the testator's presence and their direction. Sec. 62-2-506.
If after creating a will the testator is divorced or the marriage annulled, the divorce or annulment revokes any disposition or appointment of property including beneficial interests made to the spouse. Property prevented from passing to a spouse because of revocation by divorce or annulment passes as if the spouse failed to survive the decedent. If provisions are revoked solely because of a divorce or annulment, they are revived by remarriage. Sec. 62-2-507.
Admission to ProbateTo acquire the power and liabilities of a personal representative, a person must be appointed by the court and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 62-3-103.
Naming of Personal RepresentativeThe personal representative will be appointed in the following order:
- The person nominated in the will;
- The surviving spouse of the decedent who is also a devisee of the decedent;
- Other devisees of the decedent;
- The surviving spouse of the decedent;
- Other heirs of the decedent;
- 45 days after the death of the decedent, any creditor;
- Four months after the death of the decedent, upon application by the South Carolina Department of Revenue, a person suitable to the court.
- Unless a contrary intent is expressed in the decedent's will, a person with priority may nominate another to serve.
No person is qualified to serve as a personal representative who is under the age of 18 or has been found by the probate court to be unacceptable. Sec. 62-3-203.
Submission of WillIn order for a will to be effective, it must be declared to be valid by an order of the court. Sec. 62-3-102.
NotificationsAny interested person desiring notice of any order or filing pertaining to a decedent's estate may file a demand for notice with the court at any time after the death of the decedent. The demand must state the name of the decedent, the nature of his/her interest in the estate and his/her address. The court clerk will mail a copy of the demand to the personal representative if one has been appointed. Sec. 62-3-204.
Within thirty days after the commencement of probate proceedings, the personal representative must provide written notice of the probate to the heirs and devisees. The notice must include his/her name, address, the date of execution of the will, the name and location of the court granting probate and the date of the probate. The information must be delivered or sent by mail to each heir and devisee whose address is reasonably available. Sec. 62-3-705.
The personal representative must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing the appointment and the personal representative's address. The publication must notify creditors of the estate to present their claims within eight months of the date of the first publication of the notice or be forever barred. Sec. 62-3-801.
InventoryWithin 90 days of appointment, the personal representative must prepare an inventory of property owned by the decedent at the time of death and indicating the value of each item listed and the type and amount of any encumbrance. The inventory must be filed with the court. A copy must be mailed to any interested party requesting it. Sec. 62-3-706.
Elective Share, Exempt Property and the Homestead ExemptionA surviving spouse has a right to an elective share of 1/3 of the decedent's probate estate. Sec. 62-2-201. The election must be made within the later of eight months after the date of death, six months after probate of the decedent's will or thirty days after the surviving spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent's will. Sec. 62-2-205.
The surviving spouse is entitled to a value of $25,000 in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value. Rights to exempt property have priority over all claims against the estate. Sec. 62-2-401.
A surviving spouse's may make a claim of homestead on his/her primary residence. This allows the homeowner to exempt the first $50,000 from attachment by creditors on the sale of the primary residence. Exemptions for a vehicle and personal property also exist. Sec. 15-41-30.
Debts and DistributionsIf the assets of the estate are insufficient to pay all claims in full, the personal representative will make payments in the following order:
- Costs and expenses of administration, including attorney's fees and funeral expenses;
- Debts and taxes with preference under federal law;
- Reasonable and necessary medical expenses of the last illness, including compensation of persons attending the decedent;
- Debts and taxes with preference under South Carolina law, in the order of their priority;
- All other claims. Sec. 62-3-805.
If necessary and not determined under the will, shares of distributees abate, in the following order:
- Property not disposed of by the will;
- Residuary devises;
- General devises;
- Specific devises. Sec. 62-3-902.
South Carolina applies an estate tax in the amount of the federal credit on the transfer of the taxable estate of every resident. Sec 12-16-510. Because there is no current federal credit, there is no estate tax in South Carolina.
Income Tax Charitable Deductions and/or Credits
South Carolina allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS, with a few restrictions. Sec. 12-6-1130(12).
South Carolina also provides a tax credit for donors making gift of real property located in South Carolina for a qualified conservation purpose. The credit is limited to 25% of the amount deducted on the donor's federal income tax return. In addition, the credit is limited to no more than $250.00 per acre and may not exceed a total of $52,500 in any one year. Sec. 12-6-3515.
Gift Annuity Requirements
South Carolina, a "conditional exemption" state, governs the issuance of charitable gift annuities under Sec. 38-5-20. If a charity meets certain conditions, the gift annuities are exempt from regulation as insurance.