The State of South Carolina has a plan for you called “intestate succession”. After someone steps forward to begin the probate process he or she will address payment of various debts and estate expenses, like the funeral, last medical bills, last utilities, legal fees, probate costs, etc. After these expenses are paid, then what remains of your things will be divided between your “heirs-at-law”. Your heirs are first your spouse and children, if you have neither a spouse or children or even grandchildren, then to your biological parents, not those who raised you. If your parents have also predeceased you, then assets pass out to your siblings in substantially equal shares. If any sibling predeceased you leaving children, then that sibling’s share will go to his or her children.
Not all assets are part of your probate estate, for example if you own a house as joint tenants with right of survivorship with a spouse the house belongs solely to your spouse upon your death. Multiparty bank accounts usually belong to the survivor. Likewise IRAs and life insurance may be payable on death to a named beneficiary. These are not all the things that could pass by contract outside the probate estate.
Let’s assume all assets are solely in your name. When you die, 50% goes to your spouse and 50% to your children. Spouse have some elective rights that are not covered in this answer. If there are no children all goes to the spouse. If your spouse has predeceased you or you are divorced or never married, then all to your children as defined by statute in substantially equal shares.
One problem of the State’s plan for you is the children could be minors so that a conservator may have to be appointed and the probate court will control and oversee assets until the children are adults. Real property may not be able to be easily sold. Your spouse has to pay off the mortgage alone while the kids get ½ the home and land later as adults. You might have preferred for your spouse to get it all, especially if this is a second marriage and your children live with your ex-spouse or they don’t get along. The adult children could force the house to be sold. Part of your assets could pass to a special needs child who could be disqualified from public benefits.
Another potential problem could be you are estranged from an adult child for a good reason like his or her drug or gambling addiction and the last thing you want is for him or her to get a large amount of cash. Or maybe your children don’t get along with one another and because you left no instructions in a will they become further divided as they fight it out in court. From my experience, arguments cause delays and increase the expenses for all the parties involved.
A will allows you to name someone to handle things at your death who is known as the personal representative or executor. Failure to nominate someone in your will as personal representative means the State’s priority list will be applied by the court to appoint someone to probate your estate. It might not be who you would have chosen given your insight into your relatives, their characters and relationships with one another. Bonding will likely be required adding to the cost of probate administration. Additionally, probate costs will be higher.
Intestate succession is rarely the plan you would have made. You have much better options. Seeking the help of an estate lawyer can be crucial in formulating a valid will that expresses your specific wishes and protects your loved ones according to your instructions.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 10/2021
