1. A will directs where you want your property and belongings to go after you are deceased. The will does not take effect until after you have passed away, and can be changed at any time as long as you are mentally competent to make changes.
2. In order to make a will, you must be at least 18 years of age and be able to understand what your estate is, know the people you are leaving your estate to, and understand what signing a will means.
3. Wills are not recorded in South Carolina before death, they are only filed after the death of the person who has made the will. You must keep your will in a safe place where your loved ones, especially your Personal Representative, will be able to find it. If you use a safe deposit box, check with your bank to determine whether the person you name as Personal Representative will be able to gain access to the safe deposit box to get your will.
4. Every will must name a Personal Representative. The Personal Representative is the person who will take your will to the Probate Court and file the necessary paperwork to open and probate your estate. The Personal Representative will be in charge of collecting, preserving, and distributing your property according to your will.
5. The people you leave your estate to in your will are called Beneficiaries. You may name anyone you wish as a Beneficiary, and have as many or as few as you choose. You may leave a child or children out of your will, but it is a good idea to specifically state in your will that you are leaving them out if you wish to do so. If you leave your spouse out of your will, the spouse has a legal right to claim a one-third (1/3) share of your estate during the probate process.
6. The Personal Representative you name in your will cannot act on your behalf until you are deceased and he or she has been appointed by the Probate Court to be the Personal Representative. The will also cannot make any healthcare decisions such as whether to remove you from life support. There are other legal documents that can give a person the power to act on your behalf during your lifetime and to express your wishes regarding healthcare.
7. Your will must be signed in front of two witnesses and notarized by a notary public. The witnesses and notary must not be anyone named as a beneficiary in your will. There is a particular format for signing wills in South Carolina, so if you use any will not prepared by an attorney, you should seek the advice of a South Carolina attorney as to whether the will conforms to the laws of this state.
8. If you have minor children or any other beneficiary named in your will is a minor, you will need to leave them their bequest in trust and name a beneficiary to hold their share for them until they reach at least 18 years of age, although it is recommended that their share be held in trust for a longer period, for example, until they reach the age of 25. If you have minor children, it is also a good idea to name a guardian for your children until they reach the age of legal adulthood.
9. Although it is not required, it is recommended that you name an alternate for any position to which you appoint someone, such as Personal Representative, Guardian, or Trustee, in case the person you name is unable to fulfill their duties for any reason.
10. Anything that has a named beneficiary, such as a life insurance policy, will not pass through probate and will not be controlled by your will unless you fail to name a living beneficiary or you name your estate as beneficiary. Be sure to keep the beneficiary information current on all of your policies and accounts which are transferable on death.
11. Read your will carefully before signing it. Do not sign your will unless it expresses your wishes exactly and fully. Make sure that your name and the names of your beneficiaries and Personal Representative are spelled correctly.