Intestacy: Dying Without a Will

Despite the COVID-19 pandemic and lowered life expectancy rates, two out of three adults still don’t have a will or any type of estate plan. Did you know that if you pass away without a will in South Carolina, the state will decide who is legally entitled to inherit your estate? And if you have no plan with no heirs, the State of South Carolina will inherit your entire estate. Dying without a will or “intestate,” means you have no legal document protecting your estate, such as a Last Will and Testament or Living Will that details your wishes. Even wills written by hand or orally recorded could be a better option than no will at all because the presiding judge of your estate could at least have some type of understanding of your intentions for distribution. For the record, both oral and written wills are not valid or legally binding in South Carolina. Only written wills that have been signed and witnessed by two adults make the document valid in the Palmetto State.

With no legal plan for your estate, the intestacy laws of South Carolina will determine how your estate can and will be distributed upon your death. Your loved ones will have no control over the distribution of your property, and you will be voiceless over who will care for your minor children (if you have any). It also could require a court-appointed guardian to be named for your children’s care who can make medical or financial decisions for them. At a minimum, all adults must have a will or trust, to govern the disposition of their assets, an advanced medical directive to appoint a person to act on their behalf in the event of incapacity or disability, and a guardianship set up for any minors. If no plan is set up, the estate will then go through the lengthy Probate process, where a judge will oversee the estate’s distribution. Your wishes will be unheard as the Probate judge can solely make recommendations, and the presiding judge may not even hold a law degree. Depending on the type of assets in your estate, Probate could take six months to over a year and a half to resolve and result in costly court fees and legal expenses.


If you pass away intestate with a spouse and children, and if all goes well in Probate, your spouse will receive one-half of your estate and your children will receive the other half. If there are no children, the surviving spouse will receive the entire “intestate” estate. If there is no surviving spouse and no Last Will and Testament, the entire estate would go to your children equally. If one of your children is deceased, your grandchildren (if any) would share equally in the deceased child’s share, known as taking “by representation.” If you have no surviving spouse, no children or grandchildren, your parents will inherit your estate equally. If neither of your parents are alive, next in line is contacted until all heirs are identified. Half-blood heirs are treated the same as whole blood heirs. If you have no heirs, as defined under the South Carolina code, your estate will pass directly to the State of South Carolina.

Don’t let cost worry you about starting an estate plan, as it could cost your heirs more to go through Probate without one. If you don’t think you can afford an estate plan, and you are interested in online wills, rethink alternative options as online and DIY estate plans are software based and can be fraught with loopholes. You need to ensure that you are covering yourself properly under South Carolina law and that the software has been updated to the pertinent section codes. Some of the online companies don’t even let you ask basic planning questions, without incremental costs incurred, making the planning process more hectic and daunting than it needs to be. At Wiles, we charge you a flat rate vs. hourly so you can ask as many questions as you need to feel prepared. With our simple 3-step process, we’ll help you design a plan that works for you and your budget and strategize on the best way to leave a legacy behind. Some of our estate planning documents cost as little as $390, making this the best economical decision of your life.

If you still feel as though you cannot afford a will, there are a few things you can do to protect yourself. First, create another owner for your assets, such as real estate, bank accounts and personal property. This additional owner will then have joint tenancy with rights of survivorship. When you die, the property will automatically pass to the surviving owner.

If you want sole control of your bank or brokerage account, you can make it a pay-on-death (usually for a bank) or transfer-on-death (typically a brokerage) account. You’ll maintain sole ownership until your death, then it will pass to your beneficiary.

If you have life insurance, a pension, retirement account or 401k, you can name a beneficiary to receive the funds after your death — no probate court required. But you must make sure all of the pertinent documents are updated properly and accounts have been properly notified to make the changes legal.

At Wiles Law, we can handle all of the details on your behalf. You don’t have to worry about all of the intricacies of accounts when you build an estate plan with our experienced attorneys. That is what we are here to do- make planning easier and distribution seamless to your heirs. With a Living Will or Living Trust you can make all of the decisions when you are ready and update as time goes on, or as life changes. You’ll hold all of the control the entire time and we’ll handle all of the paperwork for you.

The pandemic is a grim but timely reminder to get your affairs in order before something quickly happens. As we have seen over the past year, dying without a will or trust in place can create serious complications to already overwhelmed and stressed-out families. Dying intestate not only puts your estate into Probate, but there is no guarantee that any of your wishes will be carried out because there is no documentation. Properly establishing your estate plan now not only takes care of your loved ones financially but can also save them a lot of emotional stress after you’re gone. Spending a few hours planning can positively impact your legacy for generations to come. One of the best gifts you can leave your family is a solid estate plan. And one of the best gifts you can give to yourself is an expression of your documented wishes and legacy narrative.


SC Code Section 62-2-102, 62-2-103, 62-2-105, 62-2-107