South Carolina Estate Planning Law: The Complete Attorney’s Guide

If you live in Charleston, Greenville, Columbia, or anywhere else in South Carolina, the rules that will govern your will, your trust, and your power of attorney are not the rules your North Carolina cousins live under. The two states share a border and almost nothing else when it comes to probate. SC sends every estate through a dedicated Probate Court, refuses to recognize handwritten wills, runs its elective share on a flat percentage of the probate pot, and insists on witnesses and (for real-property POAs) recording. This guide walks the SC statutory framework as it actually applies — a working reference for anyone who wants to know where the rule comes from before signing the documents. For how I draft and deliver an SC plan, the attorney page and the consultation page are the next stops.

South Carolina’s Probate Court: the defining structural fact

Every county in South Carolina runs a Probate Court — a court of limited jurisdiction with its own elected probate judge, its own docket, and its own clerks. Charleston County Probate Court sits on Broad Street; Greenville County’s is in the County Square complex; Richland County (Columbia) operates out of the judicial center downtown. This matters because nearly every estate procedure described below is run inside that court rather than a general trial court or an administrator’s office attached to one. When the SC Code says “the court,” it means the Probate Court for the county where the decedent was domiciled. That single sentence determines who sees your will, who supervises your executor, and who hears any caveat or removal action against a fiduciary.

If a South Carolinian dies without a will (S.C. Code §§ 62-2-101 — 62-2-114)

Part 1 of Article 2 of the Probate Code controls when there is no valid will. SC follows the UPC’s “single-pool” approach: the probate estate is treated as one bucket rather than carved up between real and personal property. That is structurally different from many older states (which still treat realty separately) and is one of the cleanest examples of SC’s UPC heritage in everyday practice.

Spouse, no descendants

The surviving spouse takes the entire intestate estate. Parents and siblings of the decedent take nothing under intestacy when there is a spouse and no descendants — a result that occasionally surprises families.

Spouse plus descendants

The split is 50/50 — half to the surviving spouse, half to the decedent’s descendants by representation — regardless of the number of children. There is no $60,000 first-cut for the spouse, no “spouse plus one child” versus “spouse plus two children” distinction. One child or four children, the surviving spouse still takes one-half. That is a deliberate UPC simplification and a clean point of contrast for clients who have lived in states with more layered rules.

Descendants but no spouse, and the remoter takers

With no surviving spouse, descendants take by representation. If there are no descendants, the estate climbs the table — parents, then descendants of parents (your siblings and their issue), then grandparents and their issue, and finally an escheat to the State if no statutory taker is identifiable. SC’s representation rules follow the UPC’s “per capita at each generation” approach in Section 62-2-106, which differs from the older “strict per stirpes” rule still used in a number of jurisdictions.

Heir property and the practical SC problem

Intestacy in SC has a distinctive Lowcountry footprint. Generations of intestate transfers — common in coastal communities and family-farm settings — produce what’s called “heirs’ property”: land held by dozens of cotenants, none with clear marketable title. The Uniform Partition of Heirs Property Act, adopted in SC as §§ 15-61-310 et seq., gives cotenants better procedural protections, but the underlying problem starts with a missing will. A well-drafted will and clean deed work is the cheapest possible fix.

SC wills: Article 2, Part 5 — and the strictness on handwritten documents

Wills sit in Part 5 of Article 2. The execution rule is recognizable UPC — writing, signature, two witnesses — but SC’s posture on unwitnessed handwritten documents is sharper than the national norm and sharper than its neighbor to the north.

§ 62-2-502: the execution formalities

A valid SC will must be in writing; signed by the testator (or in the testator’s name by another in the testator’s conscious presence and at their direction); and signed by two competent witnesses who watched either the signing or the testator’s later acknowledgment. SC does not insist that the two witnesses sign in each other’s presence, but they must witness the same signing event or the same acknowledgment. “Conscious presence” rather than “line of sight” is the SC test — a small but occasionally decisive distinction.

No holographic wills — full stop

SC stands with a minority of states that simply will not admit an unwitnessed handwritten document to probate, no matter how clearly the testator’s hand and intent appear on the page. If a client moved here from a state that recognized holographs and never updated, the document is paper. I see this most often with retirees who relocated from the mountains or from a UPC state that took the optional holographic-will language — SC declined that option. There is no “harmless error” doctrine codified in SC that would rescue an unwitnessed handwritten instrument.

§ 62-2-503: the self-proving affidavit

Pair the will with a sworn affidavit of the testator and the two witnesses, executed before a notary, and the will is “self-proved.” A self-proved will is admitted to probate without separately calling the witnesses. I draft every SC will self-proved at execution; the marginal cost is a notary stamp and the saved time at probate can run to weeks if a witness has moved out of state or died.

Revocation and the effect of divorce

Revocation is by a later instrument executed with will formalities, or by a physical act done with intent to revoke. Article 2 also revokes dispositions and fiduciary appointments in favor of a former spouse by operation of law upon dissolution of marriage — a quiet trap when a divorced testator believes the will still controls and the operative provisions have actually been struck.

The South Carolina Trust Code (Title 62, Article 7)

SC adopted the Uniform Trust Code as Article 7. Most of the SC Trust Code tracks the UTC verbatim, with state-specific drift in a few places — most notably the treatment of trust modification and the trustee’s duty to inform and report. The practical centerpiece for most clients is the revocable living trust.

§ 62-7-401 — what it takes to create one

Three ingredients: a settlor with capacity, who transfers property to a trustee (or declares themselves trustee over identified property); an ascertainable beneficiary or a permissible charitable or noncharitable purpose; and enforceable duties imposed on the trustee. A writing is required for real property under SC’s Statute of Frauds and is universal practice for everything else. SC does not maintain a special registration system for trusts — there is no central trust registry.

§ 62-7-602 — the revocability presumption

SC reverses the old common-law default. Under Article 7, a trust is revocable unless the instrument states otherwise. This is the opposite of the rule most lay clients assume from popular legal writing. Methods of revocation are governed by the terms of the trust where stated, and otherwise by a writing (other than a will) signed by the settlor evidencing clear and convincing intent to revoke or amend.

Putting assets into the trust

An unfunded trust is, in operational terms, a piece of paper. SC real property moves into the trust by a recorded deed at the Register of Deeds (or, in RMC counties such as Charleston and Greenville, the Register of Mesne Conveyances). Bank accounts and brokerage accounts move via the institution’s retitling process. Tangible items move by a written assignment from the settlor to the trustee. I treat funding as part of the engagement, not a homework assignment for the client — see trust funding for the funding workflow I use.

Trustee duties under § 62-7-813

SC’s duty-to-inform-and-report provision is a frequent point of negotiation in drafting. Settlors of multi-generational trusts often want to limit reporting to remainder beneficiaries during the lifetime of a primary beneficiary; SC permits some tailoring but does not allow the duty to be eliminated outright as to qualified beneficiaries. Drafting the reporting clause is a real choice, not a boilerplate paragraph.

SC Uniform Power of Attorney Act (Title 62, Article 8)

Article 8 of Title 62 is SC’s version of the Uniform Power of Attorney Act. The substantive structure — durability presumption, statutory categories, “hot powers” requiring express grant — tracks the uniform model. The execution rules are where SC stakes out its own position.

Signed before two witnesses, notarized, recorded for real property

A South Carolina durable POA needs three things at execution: the principal’s signature, two witnesses, and a notary’s acknowledgment. If the POA is going to be used for any act involving real property in SC, the document also has to be recorded with the Register of Deeds (or Clerk of Court / RMC) in the county where the real property is located before the agent can act on it. Out-of-state POAs that were valid where signed sometimes fail the SC test because the originating state did not require witnesses — closing attorneys in Charleston and Bluffton are blunt about this and routinely send forms back.

Durability presumption and hot powers

Unless the document says otherwise, a SC POA is durable — it survives the principal’s incapacity. That presumption flipped with the UPOAA enactment; pre-2017 SC POAs that don’t say “durable” can still be argued, but a current Article 8 form removes the question. “Hot powers” — gifting, creating or amending a trust, changing beneficiary designations, exercising survivorship rights, delegating authority to a third party — require an express, specific grant under § 62-8-201. They do not arrive with a generic grant of “all authority I may lawfully delegate.”

Healthcare authority and the SC Death With Dignity Act

SC splits healthcare authority across two documents. The healthcare power of attorney lives in § 62-5-501 et seq. (with related healthcare-consent law) and lets a named agent decide medical questions when the principal cannot. The companion advance directive — what most people call a “living will” — is the Death With Dignity Declaration under §§ 44-77-10 et seq. The Death With Dignity Act predates the UPC reorganization and lives in Title 44 rather than Title 62; it provides a specific statutory form and procedure for withholding or withdrawing life-sustaining procedures in terminal conditions or permanent unconsciousness, with execution before two qualified witnesses and either a notary or a probate-judge attestation. See living wills for the document-level walkthrough.

Inside SC probate (S.C. Code § 62-3-101 et seq.)

Probate runs through the Probate Court of the county of the decedent’s domicile. Charleston, Greenville, and Richland (Columbia) handle the highest volume; smaller counties such as Beaufort, Berkeley, and York (Rock Hill / Fort Mill) all run dedicated courts as well. Article 3 of Title 62 governs the process from opening to closing.

Qualifying the personal representative

The named executor (or, if there is no will, an administrator nominated under the priority list of § 62-3-203) files an application for probate or administration with the Probate Court, takes the statutory oath, and posts bond unless the will waives it (most do). Letters Testamentary or Letters of Administration issue and the personal representative steps into a fiduciary role under Article 3 — owing the standard suite of duties of loyalty, prudence, impartiality, and information.

Creditor claims under § 62-3-801

Notice is published in a paper of general circulation in the county and mailed to known or reasonably ascertainable creditors. The general claims window is eight months from the first publication; for a known creditor who receives mailed actual notice, the window is the later of that general window or thirty days from the actual notice. Late claims are barred — SC takes the bar seriously and Probate Court judges routinely strike them on motion.

Inventory, accountings, and final settlement

The personal representative files an inventory and appraisement within 90 days of qualification. Periodic accountings follow as the Probate Court requires (annual is the default in most courts). The estate closes by final settlement — a verified report and proposed distribution, served on interested parties, approved by the Probate Court. Typical timeline runs 8–14 months for a clean estate; Hilton Head and coastal real-estate-heavy estates with multiple-state property often run longer because of ancillary administration in other states.

Summary administration and small-estate paths

SC offers a small-estate affidavit procedure for estates that fit the statutory threshold (currently $25,000 of personal property, no real property) and a summary administration path for situations where the surviving spouse is the sole heir or beneficiary. See the probate overview for current thresholds and procedural details.

Death taxes that may (and mostly don’t) reach an SC estate

SC imposes no state estate tax and no state inheritance tax. The federal estate tax is the only one in play, and it only reaches estates whose taxable value exceeds the federal basic exclusion amount — an inflation-indexed figure in the multi-million-dollar range that very few SC families clear. Where the federal threshold is at issue, portability of the deceased spouse’s unused exclusion is the planning lever most often deployed. The exact figure for the current year is best confirmed with the IRS or your CPA, since it moves each year.

Remote signing under SC’s Electronic Notary Public Act

SC authorized remote online notarization in 2021 under the SC Electronic Notary Public Act, codified at §§ 26-2-10 et seq. A commissioned SC electronic notary can perform notarizations over two-way audio-video for principals located anywhere, provided the notary completes identity proofing, credential analysis, and a recorded session. RON cleanly supports SC trusts, durable POAs, and Death With Dignity declarations. SC’s framework for remotely executing wills is narrower than RON for the other documents — there are additional procedural considerations a will requires, and I work through the choice of in-person versus remote will signing during the consultation with every SC client. The net effect for most plans: a fully virtual signing appointment is feasible for an SC resident, and it has been my standard workflow since the SC RON regulations were finalized.

SC elective share: a flat third (S.C. Code §§ 62-2-201 et seq.)

SC’s spousal-protection rule is structurally simple compared to most augmented-estate jurisdictions. A surviving spouse may elect, under Part 2 of Article 2, to take one-third of the decedent’s probate estate in lieu of taking under the will. The measure is the probate estate — not the broader “augmented estate” or “total net assets” formulation that several other UPC-adopting states have layered on. Length of marriage does not matter for the percentage. The election is filed in Probate Court within the statutory window — generally the later of eight months after death or six months after the will is admitted to probate.

How the flat percentage interacts with planning

Because the SC elective share reaches only probate assets, non-probate transfers — beneficiary-designated retirement accounts, life insurance, JTWROS property, TOD/POD accounts, and assets held in a funded revocable trust — sit largely outside the elective-share calculation in the way a non-augmented-estate state contemplates. That has real consequences for blended-family planning and for clients who deliberately separate their probate and non-probate strategies. The point is not to game the rule; it is to know that ignoring it produces bad outcomes, particularly in second-marriage estates and where there is a prenuptial agreement that the parties forgot to test against current SC law.

Trust or will: which one fits an SC plan

A pour-over will, a witnessed-and-notarized durable POA (recorded when real property is in scope), a healthcare POA, and a Death With Dignity Declaration form the spine of most SC plans. A revocable living trust is worth adding when at least one of the following describes the client:

• Real estate in more than one state — a Charleston primary residence plus an Atlanta condo, say, or a Hilton Head house plus a North Carolina mountain place. Trust title sidesteps ancillary administration in the second state.
• A strong privacy preference — Probate Court inventories and accountings in SC are public record; trust administration is not.
• A blended family where the order, timing, or condition of distributions to children of prior relationships needs more control than a will can give.
• A desire to skip Probate Court supervision and shorten the time to distribution after death.
• An expectation of contest — the procedural posture of a trust contest is more demanding for a contestant than a will caveat, and that matters in fact-driven family disputes.

The decision usually turns on cost-of-administration and privacy, not tax — see wills and trusts for the cost side, and probate for what Probate Court actually does to a plain-will estate.

Five SC-specific planning failures I see repeatedly

None of these are sophisticated. All of them are avoidable. They are the recurring SC traps that turn what should be a clean plan into a Probate Court fight.

1. Bringing an unwitnessed handwritten will to SC. A holographic will valid where written may be honored under SC’s foreign-will recognition rules, but a holograph drafted by an SC resident with no witnesses is paper. Charleston Probate Court is not going to admit it.
2. Signing a POA without witnesses, or skipping the recording step for real property. Two witnesses, notary, recorded with the Register of Deeds before the agent can sign anything affecting SC real estate. Out-of-state POAs that are otherwise good frequently fall on this. I have seen Greenville and Beaufort closings stall for weeks because the executed POA never made it to the recording office.
3. Signing a trust and never funding it. The trust holds nothing until title moves. For SC real property, that means a deed recorded at the Register of Deeds; for accounts, retitling with the institution; for tangible items, a written assignment. Without those steps, the probate estate is whatever was supposed to be in the trust.
4. Letting beneficiary designations override the will. Retirement accounts, life insurance, and TOD/POD bank accounts pass by designation, not by will. An IRA naming a former spouse will pay the former spouse no matter what the will says.
5. Disinheriting a spouse without modeling the elective share. A flat one-third of the probate estate, available on election within the statutory window. If the will gives less and the spouse elects, the court will reorder the estate. Planning around that — through a prenup, a postnup, or a deliberately funded non-probate structure — is a real exercise, not a footnote.

Working with Ryan on your South Carolina estate plan

I’m Ryan Duffy. I’m licensed in South Carolina, North Carolina, and New Jersey, and I run a flat-fee, fully virtual estate planning practice that serves clients across the Lowcountry, the Midlands, and the Upstate. Every plan I draft for an SC resident is built directly on Title 62 and the related healthcare statutes in Title 44 — the chapters and sections cited throughout this page. For the engagement model, see the attorney page; to start, book a free consultation. SC local pages: Charleston, Mount Pleasant, Columbia, Greenville, Summerville, Rock Hill, Fort Mill, Bluffton, Hilton Head, Myrtle Beach.

South Carolina estate planning FAQs

Further reading for SC clients: durable power of attorney, funding your trust, HIPAA releases and ancillary documents, flat-fee pricing, the virtual planning process, how SC remote signing actually runs, and what to look for in an SC estate planning attorney. Closest local pages by region: Charleston and Mount Pleasant for the Lowcountry, Greenville for the Upstate, Columbia for the Midlands, Bluffton and Hilton Head for the southern coast. Looking for the NC version? North Carolina estate planning law.