Estate Planning

What Are Nonprobate Assets?

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Whether you are planning your estate or you are the executor of someone else’s estate, it is crucial that you understand the difference between probate and nonprobate assets. Nonprobate assets are essentially assets that do not have to go through probate upon the death of the estate owner. This term often confuses people, but it is actually rather simple. These assets are those that immediately transfer at the time of death, and are not an asset of the estate. Common nonprobate assets include:

Life Insurance

If there is a beneficiary listed properly on the life insurance policy, the proceeds will not go through the probate, but will go directly to the beneficiary. Life insurance is a wise decision if you have dependents who rely on your income, because they will receive the money from the policy quicker. However, you must make sure that the beneficiary designations are always accurate, or the proceeds will automatically go to the estate, and will be subject to taxes, creditors, and probate fees.

Retirement Accounts

If you name a beneficiary to your retirement account, they are automatically entitled to the account’s assets at the time of your death. Just like life insurance, however, you must make sure that your beneficiary is accurate, or they face the same dilemma. Be sure to consider your retirement accounts when discussing your assets with your estate planning attorney.

Payable On Death (POD) Accounts

Transferring most of your money to a POD account is a good strategy for ensuring your family receives the funds as soon as possible without being subject to extra fees. However, it is wise to still make sure your estate has some cash to cover funeral costs and other expenses.

Jointly Held Property

If you own property that is jointly held, you can set up your estate so that after your death, the interest is automatically given to the other owner (or owners). This is an advantageous if you have jointly held property with a spouse or one of your children, but it can be tricky with divorces or multiple children, so be sure to consult with a real estate attorney about this issue.

Trust Assets

If your assets are transferred to a trust before your death, it is a nonprobate asset. This is because assets in a trust are controlled by the trust, not the recently deceased, and therefore, do not need probate.

Given the difference between probate and nonprobate assets, it is clear that it is important to regularly estate plan to ensure that after you pass, your family will have access to the funds they need. Keep your affairs in order by regularly updating your will to accommodate any major life changes, including an employment change, a divorce, the birth of a child, the death of a beneficiary, and the purchase of property. When you need an estate planning lawyer in South Carolina, The De Bruin Law Firm has estate planning lawyers who may be able to help. Contact us today.

Importance Of Discussing Inheritance With Your Children

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You may not have discussed inheritance with your children yet, but it is an important conversation to have. Most families prefer to avoid conversations about this issue because it requires acknowledging the inevitability of death. However, by discussing these issues now, you can save your children conflict and distress after you have passed. Here are some of the reasons why it’s pertinent for you to have the uncomfortable conversation now.

Minimize Chances Of Will Contest

Communicating the details of your inheritances now will inform your children about your intentions and avoid surprises down the line. If you don’t have the conversation, you run the risk of your child becoming livid and contesting the will after your death. For example, there are cases in which it makes sense to distribute more inheritance to one child than the other for tax reasons. This can create obvious issues if your children don’t have an understanding of your motivations. Ensure that your will distributes your inheritances with minimal conflict by discussing these issues now.

Respect Everyone’s Wishes

Additionally, having these discussions ensures that your decisions respects your wishes as well as your loved ones’. This will help avoid unpleasant surprises after your passing, and ensure that everyone is comfortable. For example, your will also dictates the power of attorney and executor roles. By having this conversation now, you can ensure that whoever you wish to name can take on the role should it be necessary.

Address Any Issues Now

Additionally, when you discuss inheritances and your will with your children, you can determine if there any other issues that may arise that may prevent your assets from being properly distributed. For example, let’s say there is money in a joint bank account shared by a parent and one child. If that money is intended to go to another child, it must be transferred from the joint account into a trust; otherwise, the money automatically goes to the child who is on the joint bank account. Addressing these issues now ensures that your plans go as intended.

Discussing inheritance now will save your children distress in the future. Having a proper will in place will help as well. Without a valid will, your inheritance is at the mercy of South Carolina inheritance laws, which may not match your wishes. If you need an estate planning attorney to help you navigate this process, The De Bruin Law Firm may be able to help you. We have experience in estate planning, and care about ensuring that your wishes are met. Contact us today.

Changing A Will

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Your circumstances and those of your family will change over time – in fact, it would be odd if your situation and circumstances did not change. A new job or loss of a job, a divorce, a new child – all of these things require adjustments in your family’s budget, your living arrangements, and your estate plan. Changing your estate plan does not need to be a time-consuming and tedious process; in fact, if there are only a few minor changes to be made to your existing will, oftentimes these changes can be accomplished through the use of a codicil or written amendment.

Even though a codicil is a less-expensive and quicker way to change a will than simply creating a new will from scratch, you will still want to be aware of a few issues that can arise if your codicil is not properly prepared, executed, and/or stored.

Your Codicil Does Not Replace Your Will

 You must remember that a codicil is simply an amendment to an existing will – it does not replace a will you have already created. Therefore, it is important that you keep your codicil together with your will in the same location. If your executor or administrator cannot find your codicil, the terms of your will are likely to be enforced as written. Conversely, if your executor or administrator cannot find your original will, the executor or administrator may know all of the instructions you have for the handling of your estate. Therefore, once you have created a codicil, make sure to keep it in a secure location with your will. You should also inform your executor or administrator that you have created a codicil and where it and your will can be found.

You Must Clearly Indicate the Changes You Wish to Make to Your Will

 In order to be effective, your codicil must clearly indicate the changes you are attempting to make to your will. A codicil that is ambiguous or unclear may be disregarded by a probate court. Your codicil should specify the precise term of your will you are changing and reference where in your will this term can be found. The codicil should then clearly and unequivocally state that you are changing this term and how you are changing it.

 You Must Generally Comply with the Same Formalities Required to Execute a Will

 Your codicil must generally be executed in the same manner as your will. A codicil that is not so executed may (again) be disregarded by a probate court if its admission is challenged.

The De Bruin Law Firm is a South Carolina estate planning firm that can assist you in crafting and amending an estate plan to provide for your children as your family grows and its situation changes. If you have recently acquired a new asset or had a new addition to your family, come see us right away. We will help ensure that your estate plan accurately reflects the wishes and desires you have for your estate and your family if you were to unexpectedly pass away. Contact the attorneys at the De Bruin Law Firm today by phone or by using our firm’s online contact form.

The attorneys at the De Bruin Law Firm understand that estate matters are emotional and stressful. We are available to provide objective advice and guidance to our clients. To schedule a free consultation, call 864-982-5930 or use the link below.

ESTATE PLANNING LAW SERVICES

If you have a legal matter related to Estate Planning, Business Law, or a Real Estate Transaction contact our office to speak to one of our attorneys.

Our Attorneys

Estate Planning and Criminal Defense

Aaron De Bruin, Esq.

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Gary De Bruin, Esq.

De Bruin Law Firm

Helping you plan. Helping you prepare. Helping you Protect.

The attorneys at the De Bruin Law Firm understand that Estate Matters can be difficult to understand and plan for. We are available to provide our clients advice and guidance during the Estate Planning Process. To view common fees associated with an Estate Plan please call us at 864-982-5930 or use the link below to view some of our common Estate Planning Fees.

Do I Need A Trust Or A Will To Provide For My Child?

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Parents who set out to create an estate plan to provide for their children’s care and welfare following the parents’ deaths have two main choices in estate planning schemes: using a will alone or a will in combination with a trust. In times past most parents would have simply chosen to have a will drafted that would appoint a guardian for their children and dispose of their assets. In recent times, however, living trusts have become an increasingly-popular choice for individuals crafting an estate plan (regardless of whether they have children or not). But is a living trust necessary – or even desirable – for parents with children looking to create an estate plan that provides for their children?

Differences Between A Living Trust And A Will

Before determining whether a will alone or a trust is more desirable for parents, it is helpful to review the differences between these two documents. A will is a document that is admitted before the probate court by your executor or administrator (named in the will itself) and describes how you want your affairs handled after your death. A trust, on the other hand, is a legal entity in whose name you put property and assets (like your home, car, and/or valuables) while you are alive. A trustee (usually the creator of the trust, followed by successor trustee(s)) is tasked with managing all property that is in the trust’s name and using it for the benefit of the named beneficiaries of the trust – typically the trust’s creator and his or her spouse, followed by any children the couple may have, followed by any of their children’s children, and so on. A trust should not be used alone: most living trusts created as part of a comprehensive estate plan that includes a “pour-over will” – a document that takes any property owned by the decedent at the time of his or her death and “pours” it over into the trust. This essentially makes the decedent’s assets and property trust property on the date of his or her death.

When A Trust Might Be More Desirable

There is no universal answer to whether parents of young children should opt for a will alone or a will and trust. However, a living trust/will combination provides some advantages of a traditional will that some parents may find desirable:

● A trust is not a public record, so the precise terms of your estate plan can remain private in most cases;
● A trust allows you to pass on assets and property while avoiding some estate taxes that might otherwise be imposed;
● A trust allows for your assets and property to grow and increase in value and be used for the benefit of your children as well as subsequent generations.

Contact the experienced and dedicated South Carolina estate planning team at the De Bruin Law Firm for assistance. We will carefully listen to your circumstances and situation and will help you craft a personalized estate plan that accomplishes your objectives and the goals you have for your assets as well as for your children’s care.

5 Key Benefits To Establishing Trusts

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Most people grow up hearing about trust fund babies or thinking that a trust is only for individuals who are rich. This is simply not the case. Establishing trusts can benefit many different people during life and after passing. The way a trust is established can provide many positive features that aren’t involved in a regular estate inheritance. Working with an estate attorney can help you to decide which estate planning options are best for you. Consider these six benefits to establishing a trust with your finances for now or later on.

Avoid Probate

First, what is probate? Probate is a process by which a judge rules on the validity of a will. This means that after a person passes, a will can be contested. Unlike a will, a trust is less likely to be contested. Therefore, expensive legal fees and delays in the execution of the estate can be avoided. This allows you to make changes and amendments to your estate trust when you’re alive, but after passing the trust acts as a will and allows the trustee to execute final wishes while bypassing the probate courts.

Regulated Distribution

There are sometimes concerns about how an individual may utilize inherited finances. The way in which regulations can be set with a trust may be beneficial. As a grantor of a trust, there can be regulations where the money is distributed in even, small increments, or it may have restrictions based on age or any number of factors. This may put your mind at ease on how the beneficiaries use the money for years to come.

Charitable Trusts

Not everyone who works with an estate attorney or establishes a trust has children as the beneficiaries. In fact, charitable trusts are a great use for individuals who don’t wish their financial assets to go to distinct individuals. Charitable trusts allow grantors to have set money designated towards a charity of choosing during the life of the trust. These, again, can be distributed after passing in one lump sum, or the trust can exist like a living trust that distributes money in a regulated manner.

Taxes

In addition to avoiding probate, trusts help reduce tax liability when money is transferred from the grantor to the beneficiaries or trustee. Assets placed into a trust a less likely to incur taxes. There are specific restrictions and rules that apply to what is taxable and nontaxable with a trust. According to HowStuffWorks.com, “A trust can provide a way to avoid or reduce estate taxes because assets and property placed into a trust are not subject to these taxes. For example, with a children’s trust, a grantor can make tax-free monetary gifts from an estate to children or grandchildren” up to the annual exclusion amount.

Privacy

A unique benefit of established trust funds is privacy. The probate process is fully open to the public. However, when individuals choose to bypass the probate process with a trust, the passing of assets can remain private. This means that beneficiaries will not receive public scrutiny or company scrutiny. In fact, assets can remain private even among family members, reducing fighting and remain contest-resistant.

4 Questions To Consider When Creating A Will

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Making the decision to start estate planning by creating a Will is a very personal decision. Along with it being a personal decision it should also be a timely decision. No one wants to think about what could happen in the future. We’re all going to live to be 100 years-old right? Unfortunately, it’s important to start the process of creating a Will earlier in life so that you’re sure your affairs would be in order if something unexpected happens. Once you have decided to start the process of estate planning, there are several questions you should ask yourself as you work with an estate planning lawyer. Consider these topics as you work through the process.

Should I Have A Living Will As Well?

A will is a document intended to express your wishes after you pass. This includes everything from what happens to children, to who inherits property, and what happens with your finances. A living will is intended for times when you may still be alive but unable to make decisions concerning your care. If you have strong feelings about whether or not you want to be put on a ventilator, or if you know you’re going to have a medical procedure that involves anesthesia, a living will would be an important document to have so that your wishes are known. A living will is a document that compliments a standard will.

How Does This Affect My Children?

The purpose of creating a will is simply to make sure that your wishes are carried out after you pass. This includes any funeral arrangements and financial decisions. When it comes to individuals who have children, who do you want to have make decisions about their lives? If they’re minors, who will be their guardians? How will they be financially taken care of? If your children are older, will they receive equal treatment in the will? Will one be the executor of the estate over the other? These are questions that must be considered.

Who Are My Beneficiaries?

Not everyone has children and not everyone wants their entire estate to go to their children. That’s okay. Deciding who benefits from your estate is a very personal decision. Maybe you have two children and raised a nephew. You can designate equal assets to each of the three individuals so there is no squabbling. Or maybe you don’t have children and wish your assets to go to a very specific charity. That’s the purpose of the will is to be able to specify your wishes and know it will be carried out to the letter of the law.

Do I Need A Trust?

There are a variety of reasons someone may want or need to establish a trust. A trust is when assets are set up in an account with specific rules to them. Essentially the assets are set up where one person manages the assets for the benefit of another. This could be a trust fund for children that only allows access to the money when they go to college and or reach 18 years of age. Or it could be you’re looking to have your children manage your finances as you age. A trust could be of benefit there. Look at your unique situation and see if one could be of benefit to you.

5 Common Mistakes To Avoid When Planning For Your Family’s Future

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In their twenties and thirties, the last thing most people are thinking about are what will happen to their assets after they pass away. However, it’s never too early to think about estate planning, even if you don’t feel like you have much of an estate to plan at this point. Unfortunately, there’s a lot of confusion over how to properly execute estate planning as well as tactics that can help your estate save money over the long term. At De Bruin Law Firm, we understand how instrumental an estate planning attorney can be to the security of your family, and we strive to handle each case with a personal touch. To that end, we’ve gathered up some of the most common mistakes that people make when they try to execute this legal process on their own.

Not Knowing The Difference Between An Estate Plan And A Will

Lots of people know that they should have a last will and testament to ensure their wishes are carried out after they pass away. Not everyone realizes a will is only one part of the puzzle. While both are estate planning devices, they serve very different functions when it comes to your family’s future. Basically, a will is one element of a complete estate plan. Other essential elements include a power of attorney, an advanced directive, and, for some people, trusts that will benefit children, grandchildren, a favorite charity, or even a family pet in the future.

Not Planning For Disability

Even those who are familiar with the elements of a good estate plan can become hyper-focused on structuring this plan to be executed after their death. There are other reasons to have an estate plan in place, however, included unexpected disability. Physical limitations that make it impossible to work, care for your family, or take care of your property also leave your estate at risk.

Not Giving Enough Money Away

While it’s important to make good investments so that your wealth is secure for your dependents in the future, waiting until you’ve passed away isn’t always the best way to bequeath it. According to the Internal Revenue Code, gifts up to $13,000 a year per spouse may be excluded from estate tax. This has two benefits, a) you avoid giving your hard earned income to the government and b) you are able to see the benefits of your gift in the lives of individuals you gift to while you’re still alive.

Not Choosing The Right Person To Manage Your Estate

As we mentioned previously, a comprehensive estate plan includes several different types of documentation, including your selection for power of attorney. This position should only be awarded to a person that you can trust to act in your best interests in the event that you’re disabled or pass away. This person should be provided with as much information as possible about your wishes so that they can execute your will accurately.

Not Enlisting The Services Of An Estate Planning Attorney

As you can see, estate planning isn’t a chore that should be taken lightly. It has powerful implications for yourself, should you be disabled, as well as your family and causes you care about. The best way to make sure you’ve constructed a comprehensive plan for your future is to consult with a qualified estate planning attorney.

De Bruin Law Firm has been helping South Carolina families secure their future for many years. Don’t make these mistakes! Contact us for a consultation today.

Benefits And Pitfalls Of Transferring Property Through Joint Ownership

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Transferring property when its held jointly can come with certain complications. Joint ownership is a term that arises when more than one person owns property. And, ultimately, it can be used as a simple and cost-effective way to transfer property after death. For example, a parent who wants to make sure that an adult child inherits money in a bank account can add the adult child’s name as a joint owner of the account. When the parent passes away, the adult child automatically becomes sole owner of the account and there will be no need to open a probate estate to transfer the money.

Transfer Property

Under South Carolina law, people can also transfer real estate after death by adding someone to the deed as a joint tenant with rights of survivorship. By adding a second person to a deed as a joint tenant with rights of survivorship, the real estate will automatically belong to the surviving owner when the other owner passes away. The surviving owner will only need to file a certified copy of the death certificate with the Register of Deeds for the county where the real estate is located.

When property is jointly owned, there is no need to go through probate to transfer the property. By avoiding probate, the property is transferred quickly and the costs of opening a probate estate are avoided. However, there are potential problems with adding another person’s name to your property.

Potential Problems With Joint Ownership

One potential problem is that the other person actually owns the property also. That ownership gives the second owner certain rights to the property that the initial owner might not want. For example, both owners of a bank account have the right to withdraw money from the account. In the perfect world where everyone can be trusted, that will not be a problem. Unfortunately, there are some people who will freely spend the funds in the bank account even if they were only named on a bank account for estate planning purposes.

There are also potential problems with joint real estate ownership. If you add someone’s name to the deed to your home for estate planning purposes and later decide to sell the home, the other owner will need to sign off on the sale also. A problem will arise if the joint tenant does not want to sell the property.

Estate Planning Documents

When developing an estate plan, it is important to make sure that all of your estate planning documents are consistent to avoid future problems. Dispute with heirs may arise if your will states that one heir will receive all of your money although a different heir is named as a joint owner of your bank account. It is very important to speak with an estate planning attorney to make sure that you do everything possible to avoid disputes after your death.

Contact An Attorney In Greenville For Help

At the De Bruin Law Firm in Greenville, South Carolina, our estate planning attorneys can help you to determine if adding another person’s name to your property is in your best interest. Our estate planning attorneys can also prepare any necessary deeds or other conveyancing documents. In the event there is a dispute resulting from the ownership or transfer of property, our estate planning attorneys will aggressively represent your interests. Contact the De Bruin Law Firm today to schedule an appointment with one of our estate planning attorneys.

Using A Trust To Control Assets

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A trust is a versatile estate planning document that can be used in many different ways and for many different reasons. One benefit of a trust is that it can provide instructions for how money or assets are to be distributed. There are numerous possibilities for using a trust to control assets. Some examples of how a trust can be used to control money and/or assets are as follows:

Minor or Disabled Individuals:

Care and Support of a Minor or Disabled Individual: Some minors and disabled individuals acquire their own money or property through employment, inheritance, or case settlements. An individual can establish a trust to protect the money or property owned by the minor or disabled person. For example, the trust can state that money in a specific bank account is to be used only for food, clothing, housing or education. Creating a trust can be especially useful to ensure that the parent or guardian for the minor or disabled individual does not spend the money inappropriately.

Property after Death

Post-Death Control of Property: Some people want to make sure that their heirs spend the inherited money wisely. Other people want to maintain a certain amount of control over their money and property after they are gone. For example, a parent can create a trust stating that his or her children will only receive the inherited money if they graduate from college. By setting up a trust, parents can encourage their children to take certain actions even if they are not around to guide them.

Control of Property

Pre-Death Control of Property: Sometimes, it may be desirable to use a trust account as a way of controlling one’s own assets and property during one’s lifetime. For example, a person who wins the lottery might want to limit how much money can be spent per month in order to make sure that the money lasts as long as possible. It is possible to establish a trust restricting access to your own money. This can be a useful estate planning tool for people who are concerned about their inability to control their spending or manage their own money properly.

Types Of Trusts

Under South Carolina law, there are various types of trusts that can be created. Individuals can establish a revocable living trust, which allows them to control all of their property during their lifetime and cancel it at any time. An individual can also create an irrevocable trust, which is a trust that cannot be cancelled. Individuals also have the option to create a testamentary trust which becomes effective upon death. It is important to speak with an estate planning attorney who can explain the different types of trusts that are available and create the trust that will help you to accomplish your goals.

At the De Bruin Law Firm in Greenville, South Carolina, our estate planning attorneys can analyze your needs and create the right type of trust that accomplishes your goals. Contact the De Bruin Law Firm today to schedule an appointment with one of our estate planning attorneys.

Intestate Succession In South Carolina

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There are a lot of misconceptions about what happens if you die without a Will. Many people think the state will take your property. While this can and does happen in rare instances, the state has a system for passing your assets to your next-of-kin. This system is called intestate succession. Every state has different rules regarding managing the estates of those who die without wills. In South Carolina, intestate succession is regulated by Title 62, Article 2 of the South Carolina Probate Code.

South Carolina Beneficiary Rights

In South Carolina, being named a beneficiary in a will or trust, or for a non-probate asset like a life insurance policy or retirement account, grants you certain legal rights. These rights are designed to ensure that the deceased’s assets are managed and distributed according to their wishes and in accordance with state law. Navigating the legal process can be complex, so understanding these fundamental rights is very important for beneficiaries.

Whether you are a beneficiary of a will going through probate or a trust, you have a right to be informed about the existence of the will or trust and your interest in it. For probate estates, the personal representative (executor) appointed by the court is generally required to notify beneficiaries of the probate proceedings. Similarly, for trusts, the trustee has a duty to keep qualified beneficiaries reasonably informed about the trust and its administration, especially once the trust becomes irrevocable (often upon the death of the settlor).

A key right of beneficiaries is the right to receive information about the assets and management of the estate or trust. In the context of probate, beneficiaries typically have the right to receive an inventory of the estate’s assets. For trusts, beneficiaries are entitled to receive relevant information about the trust property and liabilities. This transparency allows beneficiaries to understand the value of the estate or trust and how it is being handled.

Beneficiaries also have a right to an accounting of the estate or trust. This means the personal representative or trustee must provide a detailed record of all income, expenses, and distributions made from the assets. This accounting allows beneficiaries to verify that the assets are being managed prudently and that their interests are being protected. Beneficiaries generally have the right to request this accounting and to object to it if they believe there are discrepancies or mismanagement.

Receiving timely distributions is another significant right. While the timeline for distribution can vary depending on the complexity of the estate or trust and any potential disputes, beneficiaries have the right to expect distributions to be made within a reasonable timeframe after debts, taxes, and administrative expenses have been settled. Unreasonable delays in distribution can be grounds for beneficiaries to take legal action.

In situations where beneficiaries believe the will is invalid due to issues like undue influence, lack of capacity, or improper execution, they may have the right to challenge the will in probate court. This is known as a will contest. Similarly, beneficiaries of a trust may have grounds to challenge the validity of the trust or certain actions of the trustee if they believe there has been wrongdoing or a breach of fiduciary duty.

The personal representative of an estate and the trustee of a trust are fiduciaries, meaning they have a legal duty to act in the best interests of the beneficiaries. This includes managing assets prudently, avoiding conflicts of interest, and carrying out the terms of the will or trust diligently and impartially. Beneficiaries have the right to expect this high standard of conduct and can petition the court to remove a fiduciary who is failing in their duties or engaging in misconduct.

For assets that pass outside of probate through beneficiary designations, such as life insurance policies, retirement accounts, and payable-on-death bank accounts, the designated beneficiaries have a direct right to claim these assets upon the death of the owner. These assets typically transfer relatively quickly and do not go through the potentially lengthy probate process.

South Carolina law provides beneficiaries with fundamental rights to information, accounting, timely distribution, and the assurance that fiduciaries are acting in their best interests. If you are a beneficiary and have concerns about the administration of an estate or trust, or believe your rights are not being upheld, seeking legal advice from an attorney specializing in probate and estate law in South Carolina is highly recommended to understand your specific situation and options.

The Path of Assets: Understanding Intestacy Laws in South Carolina

When a resident of South Carolina dies without a valid will, the distribution of their assets is not left to chance or the discretion of surviving family members. Instead, the state’s intestacy laws, a set of predetermined rules, dictate precisely how the deceased person’s estate will be divided among their surviving relatives. This legal framework provides a clear hierarchy of inheritance, ensuring that assets are passed down in a structured manner. Understanding this hierarchy is crucial for anyone who might be affected by the death of a loved one who did not leave a will.

The primary factor in determining how assets are distributed under South Carolina intestacy laws is the deceased individual’s marital status and whether they had children. The law prioritizes the surviving spouse and direct descendants, with other relatives inheriting only if there is no surviving spouse or children.

Scenario 1: The Deceased is Married with No Children

In the instance where an individual dies intestate in South Carolina and is survived by a spouse but has no children or other lineal descendants, the law is straightforward: the surviving spouse is the sole heir and inherits the entire intestate estate. This includes all probate assets, which are those assets that do not transfer automatically upon death through mechanisms like joint tenancy with right of survivorship or beneficiary designations.

Scenario 2: The Deceased is Married with Children

If the deceased was married and had surviving children (or descendants of deceased children), the estate is divided between the surviving spouse and these lineal descendants. Under South Carolina law, the surviving spouse is entitled to one-half (1/2) of the intestate estate. The remaining half (1/2) is then divided equally among the deceased person’s children. If a child has predeceased the parent but left their own children (the grandchildren of the deceased), that child’s share is distributed among their descendants by representation. This means the grandchildren would collectively inherit the share their parent would have received had they survived.

Scenario 3: The Deceased is Unmarried with Children

When an unmarried individual dies without a will but is survived by children (or their descendants), the entire intestate estate is passed down to these children in equal shares. Similar to the previous scenario, if a child has predeceased the parent, their share will pass to their children by representation.

Scenario 4: The Deceased has No Children but has Surviving Parents or Siblings

If the deceased had no surviving children or their descendants, the line of inheritance moves up to the parental generation. If the deceased was married, the surviving spouse still receives half (1/2) of the estate. The other half (1/2) that would have gone to children is instead divided equally between the deceased’s parents. If only one parent is alive, that parent receives the entire parental share.

If the unmarried deceased had no children but is survived by one or both parents, the entire estate goes to the surviving parent or parents.

If the deceased had no surviving children and their parents are also deceased, the inheritance then passes to the deceased person’s siblings. The estate (or the half not going to the spouse if married) is divided equally among the surviving siblings. If a sibling has predeceased the individual but left children (nieces and nephews of the deceased), those children would inherit their parent’s share by representation.

Scenario 5: The Deceased has No Surviving Children, Parents, or Siblings

In situations where the deceased has no surviving spouse, children, parents, or siblings (or their descendants), the intestacy laws reach further into the family tree. In this case, the assets may be passed to the deceased person’s grandparents. If both paternal and maternal grandparents are alive, the estate is typically divided between the two sides. If only grandparents on one side are alive, they would inherit.

If there are no surviving grandparents, the inheritance extends to the issue of the grandparents, which includes aunts and uncles (the children of the grandparents) and, if they are deceased, their children (the cousins of the deceased). The distribution at this level can become more complex and is also handled by representation.

Should there be no surviving grandparents or their issue, the intestacy laws may then look to great-grandparents and, subsequently, the children of great-grandparents.

The Concept of Escheat

It is rare, but in the unlikely event that a deceased individual dies intestate in South Carolina and has absolutely no surviving relatives, as defined by the state’s intestacy laws up to the specified degrees of kinship, the estate will “escheat” to the state. This means the assets will become the property of the South Carolina government.

Important Considerations

It is vital to remember that South Carolina’s intestacy laws only apply to probate assets. Many assets pass outside of the probate process through beneficiary designations (like life insurance policies, retirement accounts), joint ownership with right of survivorship (like jointly held bank accounts or real estate), or assets held in a trust. These non-probate assets will be distributed according to the terms of their specific agreements or designations, regardless of whether or not the deceased had a will.

Furthermore, South Carolina law includes a 120-hour survivorship rule, meaning that an heir must survive the deceased by at least 120 hours (five days) to inherit under intestacy. This rule prevents assets from passing through multiple estates in quick succession in the event of a tragedy.

While the intestacy laws provide a default plan for asset distribution, they may not align with an individual’s specific wishes. The only way to ensure that your assets are distributed according to your preferences and to potentially avoid the probate process for many assets is to create a valid South Carolina will and utilize other estate planning tools as appropriate. Consulting with an estate planning attorney in South Carolina is highly recommended to ensure your assets are distributed according to your intentions.

Named Beneficiaries

It’s important to keep in mind that any assets with named beneficiaries or co-owners are not subject to intestate succession as they go to the beneficiary or co-owner. Life insurance policies are one example of an asset that typically has a named beneficiary. Frequently real estate is owned jointly with rights of survivorship, meaning if one of the owners dies, the other owners receive their share of the property.

Additionally, heirs must survive the decedent by 120 hours and children of the decedent must be born within 10 months of the decedent’s death and survive for 120 hours. The 120-hour requirement is waived if it means there is no surviving heir. In the rare cases where no surviving heir can be found, the state will receive any assets owned by the deceased, a process known as “escheating”. It is important to realize, however, that the state escheating assets only comes after all attempts at locating and benefiting the aforementioned family members have failed.

Do You Need Estate Planning Advice in South Carolina?

As you can see it is best to avoid allowing your assets to fall into intestate succession. It is important to plan and be prepared. With a will, you will be able to manage your assets after your death to ensure they are distributed the way you want them to be. Please contact our South Carolina legal team at the De Bruin Law Firm today and we will help you draft a will and plan for the future.

The De Bruin Law firm offers a wide range of legal services to clients in Greenville, SC and the surrounding upstate. Our experienced attorneys can help you with legal matters in the areas of business law, criminal law, estate planning, and real estate law.

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