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

One of the most common misconceptions we hear about estate-planning is “If I die without a Will, everything will just go to my spouse.“

In South Carolina, that isn’t necessarily true.

If you die without a valid Will, you are considered to have died “intestate.” South Carolina law then provides default rules for what happens to property in your intestate estate.

But dying without a Will involves more than who gets your property.  You may also be leaving other important decisions unresolved – including who should be in charge of administering your estate and, if you have minor children, whom you would want to serve as their guardian.

Here are three important questions to consider.

1. Who Gets Your Property?

If you don’t have a Will, South Carolina law determines who inherits your intestate estate.

And the result often surprises people, particularly married couples with children.

The exact result depends on your family circumstances, but one point is particularly important: if you are married and have children, your spouse does not necessarily inherit your entire intestate estate.

This Can Be Especially Important for Blended Families

Consider a husband who is remarried and has children from his first marriage. 

He may assume that if he dies first, everything will go to his current wife and that she will eventually make sure his children are taken care of.

South Carolina’s intestacy laws don’t necessarily produce that result.

If he dies without a Will leaving both a spouse and descendants, his surviving spouse and descendants may each have an interest in his intestate estate from the outset.

That can become particularly complicated when an estate includes a house, family business, or other property that isn’t easily divided.  A surviving spouse and children from a prior marriage may suddenly find themselves navigating significant financial and property decisions together.

A Will allows you to decide how your probate property should be distributed rather than assuming South Carolina’s default rules match your intentions. 

2. Who Is In Charge?

This is one of the most overlooked reasons to prepare a Will.

Someone has to administer your estate.

In South Carolina, that person is called the personal representative.  The personal representative is responsible for handling the estate administration process, including identifying estate assets, addressing appropriate expenses and claims, and ultimately distributing property.

With a Will, you can nominate the person you want to serve in that role.

Without one, you haven’t made that choice.  South Carolina law instead establishes priority rules for who may be appointed.

That may work perfectly well in some families.  In others, particularly those involving multiple marriages, adult children, or difficult family relationships, the question of who should be in charge can become a significant issue.

Estate-planning isn’t just about deciding who gets your property.  It’s also an opportunity to decide whom you trust to handle everything when you aren’t there to do it yourself.  

3. Who Would You Want to Care for Your Minor Children?

For parents of young children, this may be the most important question of all.

A Will provides an opportunity to nominate the person you would want to serve as guardian for your minor children if a guardian becomes necessary.

Without that nomination, you’ve lost the opportunity to formally state your choice through your Will.

For many young families, this is a reason to prepare a Will even when their assets and financial affairs are relatively straightforward. 

Estate planning isn’t only about money.  For parents, one of the most important parts may be putting in writing who they would trust to care for their children. 

Does Everything You Own Pass Under These Rules?

Not necessarily.

Assets with valid beneficiary designations, certain jointly owned property, and assets properly held in a Trust may pass outside the probate estate.

That’s why determining what happens at death requires looking at more than whether someone has a Will.  How property is titled, how beneficiary designations are structured, and how your estate-planning documents work together can all matter.

For many families, a Will also isn’t the only estate-planning document they should consider.  A Will and a revocable Living Trust can serve different purposes and work together as part of the same estate plan. 

Learn More: Will vs. Trust in South Carolina: Why You May Need Both.

Don’t Let South Carolina’s Default Rules Make the Decisions for You

Dying without a Will doesn’t mean that no plan exists.  It means South Carolina’s default rules may answer important questions that you could have addressed yourself.

Who gets your property? Who should be in charge? Who would you want to care for your minor children?

For some families, South Carolina’s default rules may produce an acceptable result.  For others, particularly families with minor children, blended families, or assets that are difficult to divide, they may look very different from what the person would have chosen.

A thoughtful estate plan gives you the opportunity to answer those questions in advance. 

Talk With Patterson & Williams About Your Estate Plan

Patterson & Williams helps individuals and families in Hilton Head Island, Bluffton, and throughout the Lowcountry develop estate plans based on their property, family circumstances, and priorities.

If you have questions about what would happen to your property or family without a will, contact Patterson & Williams to discuss your estate-planning options.

Lauren Williams is an attorney with Patterson & Williams, P.A. in Hilton Head, SC.  She can be reached at (843) 341-9300 or lauren@pwpa.law.

This post has been prepared by Patterson & Williams, P.A. for informational purposes only and does not constitute legal advice.  Information or interaction on this page should not be construed as establishing a client-attorney relationship or as legal advice.  For advice about your specific situation, please consult one of our attorneys.