What Happens If You Die Without a Will in South Carolina?

Updated

Did you know South Carolina has an island that’s home to an estimated 4,000 monkeys? It’s called Morgan Island in Beaufort County, South Carolina, and it's owned and managed by the South Carolina Department of Natural Resources. How did all the monkeys get to the island? More than 40 years ago, more than one thousand monkeys were placed on the island as research animals. Since that time, the number of monkeys has grown. 

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We can't tell you what happens if you visit a monkey-filled island. The island is closed off to human visitors. However, we can tell you other things about South Carolina. Namely, what happens if you die without a will in South Carolina. 

South Carolina's Intestacy Laws Explained

A will is a legal document detailing how a person wants their assets distributed upon death. There are many reasons a person may choose to write a will, or not do so. Every person needs to decide for themselves whether they need a will

If a person dies without a will, they are said to have died "intestate"; this means their state's intestacy laws will determine how to distribute their assets. Each state has its own intestacy laws.

How Does Probate Work in South Carolina If There Is No Will?

Probate is the court-supervised process of divvying and distributing a deceased person's estate to their heirs. Administering an estate means managing the deceased person's estate through probate. 

In South Carolina, property that transfers automatically upon death does not go through probate. For example: 

  • Real estate property or personal property that is owned jointly with a right of survivorship clause.
  • Life insurance policies or annuities that are payable directly to a beneficiary.
  • Money from IRAs, Keoghs, and 401(k) accounts that transfer automatically to named beneficiaries.

Probating an estate in South Carolina

Various resources are available to help you with the probate process in South Carolina. You can also hire an attorney to handle the estate.  

Probate is unique in every situation and will depend on the complexities of the estate. When you begin probate, you must first file specific paperwork with the appropriate court. You must make sure you are filing paperwork in the correct probate court. 

In South Carolina, probating an estate is a three step process. The first step is opening the estate. During this step, the court appoints a personal representative who will administer the estate after the heirs file the proper paperwork. 

The next step in the probate process is administering the estate. During administration, the personal representative must: 

  • Deliver information to all interested persons
  • File an inventory and appraisement of the assets
  • Pay any outstanding debts

The final step in the probate process is closing the estate. After a personal representative has inventoried all the assets and resolved all claims against the estate, they can distribute the assets per South Carolina law, which we will discuss in more detail in the next section. The personal representative would also file the necessary estate closing documents.  

The probate process takes time. Also, be sure you are aware of any time limits that apply to your situation.

If you are the personal representative of a loved one's estate, you do not have to go through the process alone. You can hire experts to help you through the process, including attorneys and/or financial professionals.

Small estate

In South Carolina, conducting an entire probate proceeding is not always necessary. If the deceased's personal property is worth less than $25,000, it may be possible to transfer their personal property via a "small estate affidavit." However, if this applies to your situation, you cannot file one until 30 days after the deceased's date of death. 

Also, keep in mind that one of the main functions of probate is to transfer the title of the deceased's property to their heirs. If there is no property to move, there may be no need for probate.

Who Typically Inherits Assets in South Carolina If There Isn't a Will?

As discussed above, the personal representative is in charge of distributing the estate's assets per South Carolina law. A lot depends on whether they had a surviving spouse and/or surviving children. In South Carolina, this includes both natural and adopted children.

Share of the surviving spouse

In South Carolina, the surviving spouse inherits the entire estate if there are no surviving children or grandchildren. If there are children, the spouse gets half the estate.

Share of heirs other than surviving spouse

Anything that the surviving spouse does not inherit goes to the following people in this order:

  • To the children and/or grandchildren of the deceased
  • To the deceased's parent or parents
  • To their siblings
  • If there are no children, parents, or siblings, the estate passes to the deceased's grandparents
  • If there are no surviving grandparents, then the aunts/uncles
  • If there are no surviving aunts or uncles, then to the great-grandparents or their children

What happens if there are no relatives to inherit the estate? Then the state claims everything.

If you think you are entitled to a portion of a loved one's estate, you should contact the personal representative and/or an attorney immediately. 

Frequently Asked Questions: Dying Without a Will in South Carolina

Processing the death of a loved one can leave you with more questions than answers, which could become especially true if your loved one died without a will. Read on as we answer frequently asked questions regarding dying without a will in South Carolina. 

What happens when your parent dies without a will?

The death of a parent can be a difficult experience. As discussed above, someone must start the probate process by filing paperwork with a court to appoint a personal representative. You may petition the court to be selected.

If your parent dies and has a surviving spouse, they get half of the estate. The other half goes to your parent's children. If you have siblings, you will split this half of the estate equally with your siblings. However, if any of your siblings predeceased your parent, their children would take by representation. This means their children would equally share your sibling's share. 

For example, if you and your sibling survive your parent, and your parent has no surviving spouse, you and your siblings would share the entire estate equally. However, if your sibling is also deceased but left behind two children, you would get half the estate, and your sibling's children would equally split the other half of the estate. 

What are a surviving spouse's rights if there's no will?

The death of a spouse can also be a difficult experience. In South Carolina, a surviving spouse has many rights even if there's no will. For example, the surviving spouse gets priority when the court considers whom to appoint as the estate's representative.

Additionally, as discussed above, the surviving spouse is entitled to at least half of the estate. The spouse may be entitled to the entire estate if there are no surviving children. Furthermore, they may also be entitled to certain probate exemptions that we will discuss in more detail below. 

If you are concerned about your rights as a surviving spouse, you should consult a knowledgeable probate attorney. Time is of the essence when dealing with probate matters. 

Are there any probate exemptions if you die without a will in South Carolina?

In South Carolina, the surviving spouse is entitled to a certain amount of property. For example, the deceased's surviving spouse may claim up to $25,000 of property from the estate. If there is no surviving spouse, this entitlement passes to any surviving children. This includes the following:

  • Household furniture
  • Automobiles
  • Furnishings
  • Appliances
  • Personal effects

If the above-listed assets are worth less than $25,000, the surviving spouse may also claim other support from the estate, up to the value of $25,000

This $25,000 for the surviving spouse has priority over all other claims against the estate except payment of funeral expenses and the costs of administration, including attorney's fees.

In South Carolina, you may file for exemptions with the probate court within a particular deadline. If you have questions about probate exemptions, you should speak with an experienced probate attorney. A probate attorney can answer your questions and advise you regarding important deadlines.

Federal Veteran Payment Exemption

Suppose the deceased was a veteran who "served during any 'period of war'" as determined by certain pension entitlement. In that case, money paid by the United States of America for insurance, compensation, or pensions may also be exempt from probate. If you have questions about the federal veteran payment exemption, you should speak with a licensed attorney who has experience with federal veteran payments.

Who is considered next of kin in South Carolina?

Another term frequently used is "next of kin."

"Next of kin" generally refers to a person's closest living relatives or heirs. In South Carolina, heirs "means those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent [deceased person]." As discussed above, under South Carolina intestate laws, only certain relatives are entitled to inherit property, including the surviving spouse, issue, parents, etc. 

If you have questions about who is considered "next of kin" in South Carolina, you should consult an estate planning attorney. They can answer your questions and also advise you regarding end-of-life planning.

Now Is the Time To Get Your Questions Answered

If you have more questions after reading this article, that is okay. Every situation is unique, and there is no one-size-fits-all approach to estate planning. Now is the time to get your questions answered. Once you have your answers, you can utilize the Cake planning platform for your proactive end-of-life planning.

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