While there are numerous reasons to prepare an estate plan, one of the simplest and most-important reasons is to make sure that you do not leave behind an “intestate estate.” To die intestate means to die without a will; and, if this happens, your estate will be administered not according to your final wishes, but instead in accordance with the probate and intestacy provisions of South Carolina law.
What Happens if You Die Without a Will in South Carolina?
Dying without a will can potentially leave several issues to be decided by South Carolina law. If you die without a will in South Carolina, issues that will need to be resolved through probate include:
- Appointment of a Personal Representative – Your personal representative is the individual who is responsible for administering your final affairs. If you do not appoint your personal representative in your will, one will need to be appointed for you through the probate process.
- Distribution of Your Assets – If you die without a will, once all eligible creditors have been paid the remainder of your estate will be distributed according to the percentages set forth in South Carolina’s intestate succession law.
- Appointment of a Guardian for Your Minor Children – If you have minor children and neither you nor your spouse is available to care for them, then a guardian will need to be appointed through probate. This means that you will not have a say in who raises your children after your death.
These are not the only reasons to have a will, but they are certainly among the most important. Dying intestate can also lead to tax liability that could have been avoided with appropriate planning, and the costs involved in administering your estate will generally be higher as well.
The Challenges of Intestate Estate Administration in South Carolina
Let’s look at the three issues discussed above in a little more detail:
1. Appointment of a Personal Representative
There are a number of reasons why it is preferable to appoint a personal representative as opposed to leaving the decision to the probate judge who oversees the administration of your estate. As we just mentioned, one factor is cost. While it costs virtually nothing to appoint a personal representative in your will (when you are preparing a will anyway), if a personal representative needs to be appointed through probate, your loved ones will have to pay the cost to hire an attorney; and, if there are disagreements regarding who should serve as your personal representative, this can lead to added costs for your loved ones as well. Leaving the decision to probate will also delay the administration of your estate, which means that it will take longer for your loved ones to get to a point where they can start to move on.
Another factor to consider is that your personal representative will have a number of obligations, and failure to satisfy these obligations can lead to legal liability. As a result, most people find it preferable to appoint a personal representative who they trust to be able to carry out their duties consistent with the requirements of South Carolina law.
2. Distribution of Your Assets
When you prepare an estate plan, you get to specify who gets what. If you do not prepare an estate plan, then the distribution of your assets is another matter that is left to be resolved through the probate process. While South Carolina’s intestate succession law establishes the percentages of your estate that will be distributed to specified family members, (i) these percentages most likely will not reflect your personal wishes, and (ii) the law does not answer the equally important question of who gets what.
For example, if you are married and you die without a will, South Carolina’s intestate succession law simply states:
“The intestate share of the surviving spouse is: (1) if there is no surviving issue of the decedent, the entire intestate estate; (2) if there are surviving issue, one-half of the intestate estate.”
In other words, your spouse gets everything if you do not have children; and, if you have children, then your spouse gets half. Later provisions of the statute provide that your biological children should divide the remaining half of your estate equally; but, again, it will be up to your children to decide which of your assets should create their respective equal shares.
By preparing an estate plan, not only can you avoid these types of issues (which can often lead to contentious and lengthy legal disputes), but you can also exert additional control over the distribution of your estate and the use and preservation of your accumulated wealth. From establishing a revocable living trust (so that your children gain access to your estate at an appropriate age) to obtaining tax benefits through charitable donations, there are countless potential benefits to thinking carefully about how best to distribute your estate.
3. Appointment of a Guardian for Your Minor Children
If you have minor children, one of the most important aspects of your estate plan will be the appointment of a guardian. When you appoint a guardian in your will, he or she will immediately have the right and responsibility to care for your children in the event of your death. By planning ahead, you can also set aside funds for your chosen guardian so that he or she does not face financial struggles when taking on the guardianship role.
If you die intestate, no one will be able to immediately step in to serve as your child’s guardian. This can have severe detrimental consequences, and it also means that your loved ones will be forced to go through the process of having a guardian appointed through probate. Similar to the appointment of a personal representative and the distribution of assets among heirs, guardianship proceedings often lead to disputes, and this can further delay establishing a new permanent home for your children.
Contact Summerville, SC Estate Planning Lawyer Patrick R. Watts
Are you ready to prepare your estate plan? If so, we encourage you to contact us for an initial estate planning consultation. To schedule an appointment with attorney Patrick R. Watts in Summerville, please call 843-851-7050 or inquire online today.