Estate Plan After a Divorce

What is a last will and testament?

A will is a formal estate plan document that lets you provide for the distribution of your estate when you die. An estate consists of real property (e.g. land), personal property (e.g. stocks, bank accounts, cars) and intangible property (e.g., claims, interests, rights) that you own at death.

What is a trust?

A trust, also called a living trust or revocable trust, is an estate plan that allows you to retain control of your assets while you are alive but avoids probate upon death. A trust does not protect your assets from creditors, it just prevents your assets from being tied up for the 8 months to a year it takes for the probate process. It is normally recommended if you own real estate outside the state of South Carolina or a portfolio of stocks and bonds. They are also often used to provide for children, a child's trust. If you wish to leave assets to a person that is disabled, a special needs trust is often the best estate plan. A trust, especially a special needs trust, should never be formed without the assistance of a South Carolina estate attorney.

What if I die without a will or trust?

You are said to have died “intestate” and, with certain exceptions, your assets are distributed according to South Carolina law rather than your estate plan. The South Carolina intestate law is complex. For example, depending on the nature of your family, your estate may be distributed entirely to your spouse or may be divided among your spouse and surviving children. If you want to distribute your estate in amounts or to beneficiaries contrary to the South Carolina intestacy statute, you must have a will that states you wishes.

South Carolina Intestate Succession Law

Why do I need a will or trust?

You need a will or trust estate plan if you want to (a) make a specific bequest of real or personal property; (b) make special provisions for certain property or individuals; (c) name your executor (the person who will carry out your will); (d) provide for charities or individuals outside your immediate family; (e) name a guardian for minor children; (f) disinherit someone;(g) leave an entire estate to a spouse who would receive only a portion of the estate under South Carolina law.

Five Reasons Why I Don't Have an Estate Plan

Who can make a will or trust?

South Carolina probate law permits anyone 18 or older, with sound mind and memory and not under restraint, to make an estate plan consisting of a will or trust. The person making the will is called the “testator.” The person making a trust is called a "settlor". “Sound mind and memory” means you understand: (a) the estate plan act of making a will or trust; (b) the general extent of your property; (c) your relationship with your family; and (d) to whom you are giving property through the will or trust. “Not under restraint” means you were not defrauded or unduly influenced when you made your will or trust.

What must I do to make a will or trust?

Your will or trust estate plan must be in writing. It may be handwritten or typed. You must date and sign the will or trust on the last page in front of two competent witnesses, who see you sign the will and hear you acknowledge that the estate plan is yours. The witnesses must be at least 18 years of age. The witnesses must sign the will or trust and they can also testify that you were of sound mind and memory and not under restraint. Another person may sign the estate plan for you if you specifically direct the person to do so, and the person signs in your and the witnesses’ presence. For a will or trust to be self-proving, it must also be notarized.

Where should I keep my will or trust?

Keep the original of your estate plan in a safe place where it may be found easily after your death. Leave a copy with the attorney who wrote it for you. Tell your executor or trustee where the original can be found or give a copy to the executor. For estate plans left in a safe deposit box, be sure that someone you trust has the right to access the box.

What kind of property can be distributed by a will?

Generally, any land or personal property owned by you at the time of your death can be distributed to beneficiaries by your will or trest. Exceptions are (a) property interests that terminate at death (e.g. life estates); (b) bank accounts or land held jointly with the right of survivorship; (c) insurance death benefits made payable to specific beneficiaries; (d) payable on death bank accounts; and (e) transfer on death deeds.

Must the executor or trustee of a South Carolina estate plan be a South Carolina resident?

No. Your executor or trustee does not have to be a South Carolina resident although that is recommended.

Can I disinherit my spouse or children?

If your spouse is omitted from or disagrees with the will, she or he can instead choose to take that part of the estate she or he can elect to take the spousal elective share of one third of your estate plan including assets in a trust. To make a claim for elective share the surviving spouse must, during the surviving spouse’s lifetime, file a written petition for elective share with the Probate Court and the executor within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. A child, however, can be disinherited, but you should state this intention in your will.

Seifert v. Southern Nat. Bank of South Carolina, 305 S.C. 353 (1991) Assets in trust subject to spousal elective share.

Do my beneficiaries have any rights before my death?

No. A will or revocable trust estate plan does not take effect until your death. You can change or revoke the will or trust at any time before your death. When you revoke a will, it means that the will has been canceled and is no longer valid. Therefore, your beneficiaries do not have any rights before your death.

How can I change my will or trust?

You can make additions to your will by signing a “codicil,” with all the formalities of a will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed will by writing revisions into the will, even if you initial and date the changes. You can also amend or restate your trust. However, If major changes are needed, consider making a new will or trust.

Must a will be presented to probate court?

Yes, except in rare cases. A will can legally affect property distribution in accordance with your estate plan only if it is filed in probate court. Beneficiaries cannot receive land through a will until the will has gone through probate.

Must a trust be presented to probate court?

No, and this is the primary advantage of a trust. A will and your assets are public information once filed in the South Carolina probate court. A trust is private and prevents your assets from being tied up in the probate process.

What if I lose, destroy or spoil my will or trust?

A copy may be valid if it was dated and signed in front of two witnesses and had not been revoked. If your will or trust is lost or destroyed, make a new one.

How are wills revoked?

A will is revoked in any one of the following events: (a) if you, the testator, or someone in your presence and at your request or express written direction, tears, obliterates or destroys the will with the intention of revoking it; (b) you make a new, valid will; or (c) you make a codicil revoking rather than changing the will. In addition, if you are divorced, your marriage has been dissolved or annulled or you are separated with a separation agreement, any property granted under a will to a former spouse is revoked, unless a will expressly provides otherwise. However, once your South Carolina divorce or separation is granted, you need to immediately revise your estate plan accordingly.

Are verbal wills valid?

No, a verbal will is not valid.

Are wills and trusts from other states valid in South Carolina?

Yes, if it is also validly executed in the state in which it was made. Consequently, the will or trust must be made according to the laws of the state in which it was made.

Can I avoid Probate?

In most cases, not entirely. Probate is a legal process that transfers your property after your death. However, you can avoid certain property passing through probate by: (a) holding property jointly with the right of survivorship; (b) establishing inter vivos (living) trusts during your lifetime; (c) establishing payable on death bank accounts, or (d) creating transfer on death deeds. These alternatives should only be pursued after talking with a South Carolina estate attorney.

South Carolina Estate Attorney

Wayne Patterson, estate attorney, has over forty years of business and legal experience. He practices in the Federal and State courts located in Greenville, Pickens, Oconee, Spartanburg and Laurens Counties of South Carolina. Call 864-270-7973 for professional and caring representation in your estate plan and probate issues including assistance with special needs trusts. He is located at 116 W, Stone Ave., Greenville, SC 29609.

South Carolina Probate Court and Estate Information

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