Tag Archive for: Estate Planning Attorney

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.

Frequently Asked Questions About Wills in South Carolina

What is a last will and testament in South Carolina?

A last will and testament is a legal document outlining how your assets, property, and personal belongings should be distributed after your death. In South Carolina, it also allows you to nominate an executor to manage your estate and designate a legal guardian for minor children, ensuring that your personal asset distribution choices are fully honored by the court system.

What are the legal requirements for a valid will in South Carolina?

To make a valid will in South Carolina, you must be at least eighteen years old and of sound mind. The document must be written, signed by you or another person at your direction in your presence, and witnessed by at least two competent individuals who sign the document after witnessing your signature or your legal acknowledgment of the document.

Does a will need to be notarized in South Carolina?

Notarization is not legally required to make a valid will in South Carolina, but it is strongly recommended. Having a notary public witness your signature along with two impartial witnesses creates a self proving will, which simplifies and speeds up the probate process after your death by eliminating the need for witnesses to appear and testify in local probate court.

What happens if you die without a will in South Carolina?

If you pass away without a valid will in South Carolina, your estate is subject to state intestate succession laws. This means state law determines how your assets are distributed among surviving relatives, which usually favors spouses and children. Without a will, you completely surrender the legal right to select your beneficiaries, guardians, or personal estate administrator for your property.

Can a handwritten will be legally recognized in South Carolina?

Handwritten wills are generally not recognized in South Carolina unless they satisfy all statutory requirements for a standard execution. This means a handwritten document must still be signed by the testator in the presence of two qualified witnesses who also sign. Completely unwitnessed handwritten documents are considered legally invalid under current South Carolina probate and estate legal codes and statutes.

How does probate work for a will in South Carolina?

Probate is the formal legal process of validating a will, inventorying assets, paying off debts and taxes, and distributing remaining property. In South Carolina, the probate court oversees the designated executor throughout this procedure, ensuring that all valid claims are settled and that legal instructions within the document are followed precisely during final estate administration and asset distribution to heirs.

Who can serve as a witness to a will in South Carolina?

In South Carolina, any competent individual can act as a witness. However, utilizing disinterested witnesses who receive no financial benefit or inheritance from the document is essential. While an interested party can witness the document, doing so can void any gifts designated to them unless two other completely disinterested witnesses also signed the will during its official legal execution process.

Can I disinherit a spouse or child in South Carolina?

You can disinherit children in South Carolina, provided your intent is explicitly stated within the document. Disinheriting a spouse is significantly more complicated, as South Carolina law gives surviving spouses the statutory right to claim an elective share of one third of the probate estate, regardless of what the express terms of the written will explicitly mandate or state otherwise.

What is the difference between a will and a living trust?

A will only takes effect upon your death and must pass through the probate court process to transfer assets. A living trust takes effect immediately upon creation, allowing you to manage assets during your lifetime and transfer property seamlessly to beneficiaries upon death, completely bypassing probate court involvement, saving significant time, avoiding public records, and maintaining complete family financial privacy.

How can I make changes to my existing South Carolina will?

You can alter your will by executing a legal amendment called a codicil or by creating a completely new will that revokes all previous versions. A codicil must follow the exact same formal legal requirements as a will in South Carolina, including the required signing formalities and the presence of two qualified, disinterested witnesses to ensure its full legal validity.

Where should I safely store my will after signing it?

Store your original signed document in a secure, fireproof location at home, or deposit it with the local county Probate Court for safekeeping. Inform your appointed executor and loved ones where the document is stored, as probate courts in South Carolina require the original physical document rather than a photocopy to begin the formal estate administration process properly after passing.

How often should I review and update my will in South Carolina?

You should review your will every three to five years, or whenever major life events occur. Significant occurrences like marriage, divorce, the birth or adoption of children, substantial changes in financial assets, relocation, or the death of a named executor or beneficiary warrant an immediate update to ensure your estate plan reflects current personal wishes and state legal code requirements.

Last Updated: September 2026

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

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

In their twenties and thirties, the last thing most people are thinking about is what will happen to their assets after they pass away. Young adulthood and early middle age are typically consumed with building careers, raising children, purchasing homes, and managing day-to-day living expenses. 

Thinking about end-of-life logistics or unexpected incapacity often feels premature, uncomfortable, or unnecessary—especially if you do not consider yourself wealthy. However, it’s never too early to think about estate planning in South Carolina, even if you don’t feel like you have much of an estate to plan at this point. In reality, an “estate” isn’t limited to sprawling plantations, multi-million-dollar portfolios, or vast family trusts. Your estate consists of everything you own: your house, vehicle, bank accounts, retirement funds, digital assets, personal belongings, and even your family pet. 

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, avoid unnecessary legal hurdles, and protect your loved ones over the long term. Many individuals rely on assumptions, well-meaning advice from non-experts, or cheap online templates that fail to account for specific state laws. 

In South Carolina, estate planning involves specific statutory requirements under the South Carolina Probate Code, unique tax considerations, and procedural nuances that can make or break your family’s financial security. 

At De Bruin Law Firm, we understand how instrumental an estate planning attorney in SC can be to the security of your family, and we strive to handle each case with a personal touch. 

We know that estate planning is not just about paperwork—it is about providing peace of mind and preserving harmony among those you leave behind. 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 or delay it until it is too late.

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. It is one of the most widely recognized legal documents in popular culture. However, 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. 

A Last Will and Testament is a foundational legal document that dictates who will inherit your property, who will serve as the Personal Representative (executor) to oversee the settlement of your affairs, and who will serve as the legal guardian of your minor children should both parents pass away. However, relying solely on a will leaves significant gaps in your protection strategy:

  • A Will Only Takes Effect Upon Death: A will provides zero protection or direction if you become incapacitated due to an illness or injury. It cannot authorize someone to pay your mortgage, manage your investments, or make medical decisions on your behalf while you are alive.
  • A Will Does Not Avoid Probate: A common misconception in South Carolina is that having a will allows your family to skip probate court. In truth, a will serves as the instruction manual for the probate court. Under the South Carolina Probate Code, a will must be submitted to the probate court in the county where you resided to be validated and executed. Probate can be a public, lengthy, and sometimes costly process.
  • A Will Cannot Overrule Certain Beneficiary Designations: Assets such as life insurance policies, 401(k)s, IRAs, and bank accounts with “Payable on Death” (POD) or “Transferable on Death” (TOD) designations pass directly to the named beneficiary outside of the will. If your will says your daughter gets everything, but your ex-spouse is still listed as the primary beneficiary on your retirement account, the financial institution is legally obligated to hand those funds to your ex-spouse. A comprehensive estate plan, by contrast, creates a cohesive ecosystem of legal protections. Beyond a basic will, essential elements of a robust estate plan include:
  1. Durable Power of Attorney (Financial): Grants a trusted individual the authority to handle financial and legal decisions if you are unable to do so.
  2. Healthcare Power of Attorney: Designates a representative to make medical treatment decisions for you when you cannot communicate your own wishes.
  3. Living Will (Declaration for a Desire for a Natural Death): Outlines your specific preferences regarding life-prolonging measures and end-of-life care in South Carolina.
  4. Trusts: For many individuals and families, establishing a revocable living trust, irrevocable trust, or testamentary trust offers distinct advantages. Trusts can allow your estate to bypass probate entirely, keep your financial affairs private, provide creditor protection, and control how and when assets are distributed to beneficiaries—such as staggering distributions for children, grandchildren, a favorite charity, or even providing continuous care for 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, including unexpected disability or incapacity. A sudden car accident, stroke, traumatic brain injury, or early-onset degenerative illness can strike at any age. Physical or cognitive limitations that make it impossible to work, care for your family, or take care of your property leave your estate—and your family’s financial stability—at severe risk if you haven’t planned ahead. When an adult becomes incapacitated without proper disability planning documents in place, their family faces immediate legal and operational roadblocks:

  • Financial Paralysis: Even if you are married, your spouse does not automatically have the unconditional legal right to manage individually held bank accounts, sell joint real estate, alter investments, or adjust accounts solely in your name. Without a legal document granting authority, bank accounts can be frozen, bills can go unpaid, and property transactions can grind to a halt.
  • Court-Ordered Guardianship and Conservatorship: To gain the authority to handle your healthcare and finances, your family members may be forced to petition the South Carolina Probate Court to declare you legally incapacitated and appoint a Guardian (for healthcare and personal decisions) and a Conservator (for financial decisions). This process is notoriously expensive, stressful, public, and time-consuming. It involves court hearings, legal fees, medical evaluations, and ongoing court oversight, including mandatory annual accounting reports.
  • Loss of Privacy and Control: When the court appoints a conservator or guardian, the judge decides who manages your affairs—which may not be the person you would have chosen. Furthermore, court intervention subjects your family’s private finances and personal health details to public record. By incorporating robust incapacity planning into your overall estate strategy, you retain total control over who steps in to manage your affairs. A well-drafted Durable Power of Attorney and Healthcare Power of Attorney ensure that your designated agent can seamlessly take over financial management and healthcare decisions the moment disability occurs, completely bypassing the need for burdensome court proceedings.

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. Strategic lifetime gifting is a powerful, often overlooked tool in personal wealth management and family planning. Under federal tax regulations enforced by the Internal Revenue Service (IRS), individuals can take advantage of the annual gift tax exclusion. This mechanism allows you to gift up to a specified threshold each year per recipient without incurring gift taxes or triggering reporting requirements that count against your lifetime estate tax exemption. Married couples can double this benefit by pooling their exclusions to gift twice as much to individual recipients annually. Strategic lifetime gifting provides two significant advantages:

  1. Tax Efficiency and Preservation of Wealth: Gifting assets during your lifetime removes those funds—and any future appreciation on those assets—from your gross estate. For larger estates, proactive gifting can significantly reduce potential federal estate tax liabilities and lower administrative probate fees in South Carolina, which are calculated based on the total value of assets passing through the probate estate. It allows you to avoid giving your hard-earned assets unnecessarily to government administrative costs or tax liabilities.
  2. Experiencing the Human Impact of Your Generosity: Perhaps the greatest non-financial benefit of lifetime gifting is emotional. By transferring wealth while you are alive, you are able to see the benefits of your gift in the lives of individuals you gift to while you’re still around to enjoy it. Whether it is helping a child buy their first home, paying down a grandchild’s college tuition, funding a family business venture, or contributing directly to a cause close to your heart, lifetime giving transforms an abstract future inheritance into a meaningful present reality. An experienced estate planning attorney can help you structure a gifting schedule that balances your personal financial security with tax-smart distributions, ensuring you never give away more than you can comfortably afford to spare.

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, trustees, healthcare representatives, and the personal representative named in your will. Selecting the individuals who will fill these roles is one of the most critical decisions you will make during the estate planning process. Too often, people choose estate managers based solely on emotion, family tradition, or social pressure. For example, parents frequently name their oldest child out of a sense of obligation, or select a close relative simply to avoid hurting someone’s feelings. However, administering an estate or acting as a power of attorney is a demanding legal job, not a trophy or an honorific title. The wrong choice can lead to family conflict, mismanagement of funds, delayed distributions, and even costly legal battles. When selecting the individuals who will manage your estate and health care decisions, consider the following key traits:

  • Trustworthiness and Integrity: These positions carry a fiduciary duty—the highest legal duty of loyalty and care. You must select someone who will act scrupulously in your best interests and strictly adhere to your written instructions, rather than succumbing to personal biases or self-interest.
  • Financial Acumen and Organization: An estate administrator or financial agent must keep meticulous records, coordinate with attorneys and accountants, manage investments, pay creditors, settle taxes, and liquidate assets. They do not need to be a financial expert, but they must be organized, responsible, and practical enough to seek professional guidance when necessary.
  • Emotional Maturity and Conflict Resolution: Settling an estate after a loved one passes away can bring underlying family tensions to the surface. Your chosen manager should possess the diplomatic skills and emotional maturity required to remain objective, stand firm against unreasonable demands, and manage grieving or difficult family members gracefully.
  • Availability and Geographic Proximity: Managing real property, settling claims, and overseeing court filings in South Carolina is much harder for someone who lives halfway across the country or has an overly demanding career and family life of their own. Once you have identified the right individuals, communication is vital. This person should be provided with as much information as possible about your wishes, the location of your legal documents, contact details for your professional advisors, and an inventory of your assets so that they can execute your estate plan accurately and smoothly when the time comes.

Not Enlisting The Services Of An Estate Planning Attorney

In an era of instant internet access, it is tempting to view estate planning as a quick do-it-yourself project. Dozens of online websites advertise low-cost wills, powers of attorney, and living trusts that promise to save you time and money. Unfortunately, relying on generic DIY forms is often the biggest and most expensive mistake of all. Estate planning laws are strictly governed at the state level. A generic template downloaded from the internet may not meet the specific execution, witnessing, and notarization formalities required by South Carolina law. A single missing signature, improperly drafted witness clause, or vague sentence can invalidate an entire document, causing your estate to fall under South Carolina’s intestate succession laws—meaning state law, not you, determines who gets your property. Furthermore, DIY templates cannot offer tailored legal counsel:

  • They Cannot Fix Structural Flaws: Online forms cannot analyze your unique family dynamics, evaluate tax exposures, address complex blended-family considerations, or structure protections for beneficiaries with special needs or debt issues.
  • They Create False Security: A document may look legally sound to a layperson, but its latent errors usually do not come to light until you pass away or become incapacitated—precisely when it is too late for you to correct them. The legal fees required for your family to fix a broken DIY estate plan in probate court after your death often dwarf the cost of hiring a lawyer to draft it correctly in the first place. As you can see, estate planning isn’t a chore that should be taken lightly or left to generic software. It has powerful, lasting implications for yourself—should you become disabled—as well as your family, your assets, and the charitable causes you care about. The best way to make sure you’ve constructed a legally sound, comprehensive plan for your future is to consult with a qualified estate planning attorney who understands South Carolina law inside and out.

De Bruin Law Firm has been helping South Carolina families secure their future for many years. We take the time to listen to your goals, analyze your assets, and draft a customized estate plan tailored specifically to your family’s needs. Don’t leave your legacy and your family’s financial stability to chance or make these costly mistakes! Contact us for a consultation today to start planning for tomorrow with confidence.

Last Updated: September 2026

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.

Can A Last Will And Testament Override Joint Ownership In South Carolina?

When people begin planning their estate, they often assume that writing a last will and testament is the ultimate tool for distributing all of their property. However, estate planning law has specific rules regarding how property is titled. A common question for property owners in South Carolina is whether a will can override the rules of joint ownership.

Understanding Joint Tenancy with Right of Survivorship

To understand how a will interacts with shared property, you must first look at the form of ownership. In South Carolina, property owned by two or more people is frequently held as a joint tenancy with right of survivorship, governed under the principles outlined in [South Carolina Code of Laws Section 27-7-40].

Under this legal arrangement, when one co-owner passes away, their ownership interest automatically transfers to the surviving owner or owners. This happens instantly by operation of law. Because the transfer occurs automatically at the exact moment of death, the deceased person no longer holds an interest in the property to give away.

The Legal Power of a Will

A last will and testament only governs probate assets—meaning property that is owned solely in the deceased person’s name and does not have a designated beneficiary or automatic transfer mechanism attached to it, as structured under [South Carolina Code of Laws Section 62-2-805].

Because property held in joint tenancy with right of survivorship bypasses probate entirely, the instructions written inside a last will and testament generally cannot override it. If a will states that a person’s share of a jointly owned house should go to their children, but the deed is held as joint tenants with right of survivorship with a spouse, the surviving spouse will legally receive the property regardless of what the will says.

Exceptions and Tenancy in Common

There is an important distinction to make regarding different types of shared ownership. In South Carolina, if property is owned as a tenancy in common rather than a joint tenancy, the rules change entirely.

Tenants in common do not have a right of survivorship. When a tenant in common dies, their fractional share of the property does not automatically go to the other owners. Instead, that share becomes part of their probate estate and is distributed according to the instructions in their last will and testament, or by state intestacy laws if there is no will.

Why Careful Estate Planning Matters

Because property deeds and beneficiary designations override wills, it is crucial to ensure that your legal documents match your actual intentions. Many families run into unexpected conflicts because a parent assumed a will could fix an outdated deed.

If you want your jointly owned property to be distributed differently, you must update the property deed itself or work with an attorney to establish an alternative estate planning vehicle, such as a revocable living trust. Simply writing a new clause into your will will not be legally sufficient to change the outcome of a survivorship deed in South Carolina.

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.

Last updated September 2026

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

An overview of trust structures under South Carolina law demonstrates the various estate planning tools available to protect assets, manage tax liabilities, and ensure proper wealth distribution across generations.

Living vs. Testamentary Trusts

The timing and mechanism of a trust’s creation define its operational category under the South Carolina Trust Code (S.C. Code Ann. § 62-7-101 et seq.).

Revocable Living Trusts

A revocable living trust is established during the grantor’s (settlor’s) lifetime. The primary advantage of a revocable trust is flexibility: the grantor retains complete control over the trust assets, serves as the initial trustee, and reserves the right to amend, modify, or completely revoke the trust at any point during their lifetime, provided they retain mental capacity.

  • Probate Avoidance: Assets properly funded into a revocable trust pass directly to named beneficiaries upon the grantor’s death, bypassing the South Carolina probate court process. This preserves privacy and reduces administration time and costs.
  • Incapacity Management: If the grantor becomes incapacitated, a designated successor trustee steps in to manage the trust property without requiring a court-appointed conservator or guardian.
  • Tax & Creditor Considerations: Because the grantor maintains full control, assets in a revocable trust are still considered part of the grantor’s gross estate for federal estate tax purposes and remain subject to claims by the grantor’s creditors during their lifetime.

Irrevocable Trusts

Unlike a revocable trust, an irrevocable trust generally cannot be altered, amended, or terminated once executed, except under limited judicial or non-judicial modification procedures permitted under South Carolina law (such as decanting or beneficiary consent under S.C. Code Ann. § 62-7-411).

  • Asset Protection: By surrendering control and ownership of the assets transferred to the trust, the grantor effectively removes those assets from their personal estate. This shields trust property from future personal creditors and lawsuits.
  • Tax Minimization: Irrevocable trusts are often used to reduce or eliminate federal estate and gift taxes by removing appreciating assets from the grantor’s taxable estate.
  • Medicaid Planning: Irrevocable trusts can assist individuals in qualifying for long-term care benefits (such as Medicaid) by moving countable assets out of the individual’s name ahead of the statutory look-back period.

Testamentary Trusts

A testamentary trust does not exist during the grantor’s lifetime. Instead, it is created through the terms of the grantor’s Last Will and Testament and takes effect only upon the grantor’s death.

  • Probate Requirement: Because the trust is created via a will, the assets funding the trust must first pass through the South Carolina probate court.
  • Flexibility & Control: Until death, the grantor can freely modify or remove the testamentary trust provision by updating their will. Once the grantor passes away and the court validates the will, the testamentary trust becomes irrevocable.

Specialized Trust Categories Under SC Law

Beyond basic living and testamentary structures, South Carolina recognizes specialized trusts designed to accomplish specific planning goals:

Special Needs Trusts (SNTs)

Special Needs Trusts allow individuals with disabilities to hold funds or receive inheritance without jeopardizing their eligibility for vital government assistance programs, such as Supplemental Security Income (SSI) and Medicaid.

  • First-Party SNTs: Funded with the beneficiary’s own assets (e.g., a personal injury settlement). Under federal and SC guidelines, these trusts require a payback provision reimbursing the state for Medicaid expenses upon the beneficiary’s death.
  • Third-Party SNTs: Funded with assets belonging to parents, relatives, or other third parties. These do not require a Medicaid payback provision upon the beneficiary’s death, allowing remaining funds to pass to other family members.

Charitable Trusts

Charitable trusts allow grantors to support tax-exempt organizations while securing income or tax benefits for themselves or their heirs.

  • Charitable Remainder Trusts (CRTs): Provide income payments to non-charitable beneficiaries for a term of years or lifetime, with the remaining trust principal passing to a designated charity.
  • Charitable Lead Trusts (CLTs): Pay income to a designated charity first for a specified duration, after which the remaining assets transfer to non-charitable beneficiaries (such as children or grandchildren).

Credit Shelter and Marital Trusts

Often used by married couples with substantial estates, these trusts optimize the federal estate tax marital deduction and applicable exclusion amounts, preserving wealth across generations while ensuring the surviving spouse is cared for.

Tailoring Your Estate Plan

Trust requirements, tax implications, and execution formalities under South Carolina law require careful drafting. Consulting an experienced South Carolina estate planning attorney ensures that your trust is properly executed, funded, and aligned with your long-term wealth preservation and family protection 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.

Last Updated: September 2026

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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