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

Published: May 13, 2026

South Carolina’s estate planning rules differ from North Carolina’s in several places that matter — handwritten wills, the elective-share percentage, the court that handles probate, and the formalities for a power of attorney all read differently in SC. This guide is written for South Carolina residents who want the statutory framework before they sit down to draft a will, trust, or POA. If you want the short version of how I work, see the attorney page or book a free consultation.

Intestate succession in South Carolina (S.C. Code §§ 62-2-101 et seq.)

If a South Carolina resident dies without a valid will, Part 1 of Article 2 of the SC Probate Code (S.C. Code §§ 62-2-101 through 62-2-114) sets the order of distribution. Unlike NC, SC does not maintain a separate real-property vs. personal-property carve-out for the surviving spouse — the elective and intestate framework treats the probate estate as a single pool.

Surviving spouse, no descendants

Where the decedent leaves a surviving spouse and no surviving descendants, the spouse takes the entire intestate estate. This is the cleanest case.

Surviving spouse and descendants

Where the decedent leaves a surviving spouse and one or more surviving descendants, the spouse takes one-half of the intestate estate and the descendants take the other half, by representation. Note the contrast with NC, where the spouse’s share is calculated separately for real property and personal property and shifts when there is more than one child.

No surviving spouse

Where there is no surviving spouse, the SC Probate Code distributes the estate in this order: to the decedent’s descendants, by representation; if none, to the decedent’s parents; if none, to descendants of parents (siblings of the decedent and their issue, by representation); if none, to grandparents or their descendants; with a final escheat to the State as the backstop where no taker can be identified.

Wills under the SC Probate Code (Title 62, Article 2)

South Carolina’s will formalities, witness requirements, and self-proving affidavit procedure are set out in Part 5 of Article 2 of Title 62. The framework is recognizably descended from the Uniform Probate Code, but SC has chosen a stricter posture on handwritten wills than many states.

Formal requirements — S.C. Code § 62-2-502

A South Carolina will must be (1) in writing, (2) signed by the testator (or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction), and (3) signed by at least two individuals who witnessed either the testator’s signing or the testator’s acknowledgment of the signature or the will. The witnesses must be competent. SC does not require the witnesses to sign in each other’s presence, but they must witness the same signing or acknowledgment.

Holographic wills are not recognized in South Carolina

This is one of the most important practical differences between SC and NC. South Carolina does not recognize holographic (unwitnessed handwritten) wills as a freestanding form of valid will. A handwritten document signed only by the testator, without two competent witnesses, will not be admitted to probate in SC — even though the identical document might be admitted across the border in NC. If you have a handwritten will from another state, this is a conversation worth having before you rely on it.

Self-proving affidavit — S.C. Code § 62-2-503

SC permits a will to be made self-proving by affidavit of the testator and witnesses, sworn before a notary public. A self-proved will is admitted to probate without the testimony of witnesses (subject to challenge). Every will I draft for a SC client includes a self-proving affidavit.

Revocation

A SC will is revoked by execution of a subsequent will or codicil that revokes the prior instrument expressly or by inconsistency, or by a physical act (burning, tearing, canceling, obliterating, destroying) performed with the intent to revoke. Title 62, Article 2 also contains operate-of-law rules for the effect of divorce on devises and fiduciary appointments to the former spouse.

Trusts under the South Carolina Trust Code (Title 62, Article 7)

South Carolina has adopted the Uniform Trust Code as Article 7 of the Probate Code. The South Carolina Trust Code governs creation, modification, administration, and termination of trusts in SC. The default rules and the trustee duties tracking the UTC closely.

Creation — S.C. Code § 62-7-401

A South Carolina trust is created when a settlor with capacity transfers property to a trustee (or declares themselves trustee), identifies a definite beneficiary (or a permissible charitable or noncharitable purpose), and imposes enforceable duties on the trustee. A writing is needed in practice and is required for real property under the Statute of Frauds.

Amendment and revocation — S.C. Code § 62-7-602

Like the UTC, the SC Trust Code reverses the older common-law default — a trust is revocable unless its terms expressly state otherwise. Section 62-7-602 sets out the default methods of revocation or amendment by the settlor of a revocable trust (substantial compliance with any method stated in the trust, or by writing other than a will manifesting clear and convincing intent).

Funding the trust in South Carolina

SC trust funding works the same way it works in NC. Real property is retitled by deed recorded in the Register of Deeds for the county where the property sits. Bank and brokerage accounts are retitled through the institution. Tangible personal property is moved by an assignment to the trustee. A signed-but-unfunded SC trust does nothing — the assets still pass through probate.

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

South Carolina enacted its version of the Uniform Power of Attorney Act as Article 8 of Title 62. The SC act, like NC’s Chapter 32C, presumes that a financial power of attorney is durable unless the document says otherwise. But SC’s execution requirements are stricter than NC’s in a way that catches a lot of out-of-state forms.

Execution: signed, witnessed, notarized, and recorded

A South Carolina durable power of attorney must be signed by the principal in the presence of two witnesses and acknowledged before a notary public. To be effective with respect to real property in SC, the durable POA must also be recorded in the office of the Register of Deeds (or Clerk of Court in non-RMC counties) where the real property is located. This is meaningfully more formal than NC’s Chapter 32C, which requires signature and notarization but no witnesses and no recording prerequisite.

Hot powers and statutory grants

As with NC, the SC act requires an express grant for “hot powers” — making gifts, creating or amending a trust, changing beneficiary designations, exercising rights of survivorship, delegating authority. Those powers do not ride in on a general grant.

Healthcare powers and the SC Death With Dignity Act

A SC healthcare power of attorney is authorized by S.C. Code § 62-5-501 et seq. (and the related healthcare-consent statutes), and lets a named agent make medical decisions when the principal lacks capacity. The companion document — what other states call a “living will” — is governed in SC by the Death With Dignity Act, S.C. Code §§ 44-77-10 et seq. The Death With Dignity Act provides a statutory declaration form and procedural rules for withdrawing or withholding life-sustaining procedures in terminal conditions or permanent unconsciousness. Execution requires two qualified witnesses and a notary or probate-judge attestation. See the living will page for the document-level walkthrough.

Probate in South Carolina (S.C. Code § 62-3-101 et seq.)

Probate in South Carolina is administered by the Probate Court of the county where the decedent was domiciled at death — a separate, dedicated court of limited jurisdiction. (This is one of the most often-confused differences between SC and NC: in NC, probate is handled by the Clerk of Superior Court; in SC, by the Probate Court.)

Opening the estate

The personal representative (executor under the will, or an administrator appointed by the Probate Court) qualifies by filing an application, taking the oath, and posting bond if required (waivable by the will in most cases). Letters Testamentary or Letters of Administration issue. The personal representative then owes fiduciary duties to the estate and its beneficiaries under Article 3 of Title 62.

Notice to creditors and the claims period

The personal representative publishes notice to creditors in a newspaper of general circulation and mails actual notice to known or reasonably ascertainable creditors. Under § 62-3-801 et seq., creditors generally have eight months from the first published notice to present claims (or thirty days from actual mailed notice, whichever is later, when actual notice is given to a known creditor). Late claims are barred — the cutoff is strict.

Inventory, accounting, and closing

The personal representative files an inventory and appraisement with the Probate Court within 90 days of qualification, then accountings as required by the court. Final settlement closes the estate. Most SC probate estates close in 8 to 14 months; contested or complex estates run longer.

Small-estate and summary procedures

SC has both a small-estate affidavit procedure for very small estates and a summary administration procedure for limited cases. See our probate overview for the threshold figures.

Estate and inheritance taxes in South Carolina

South Carolina has no state estate tax and no inheritance tax. The only “death tax” that may touch an SC estate is the federal estate tax, which applies only to estates above the federal basic exclusion amount (currently in the multi-million-dollar range and indexed annually). For nearly every SC family, no federal estate tax return is required. Confirm current federal exemption figures with the IRS or your CPA — the number changes.

Remote online notarization in South Carolina

Remote online notarization in South Carolina is governed by S.C. Code §§ 26-2-10 et seq., the South Carolina Electronic Notary Public Act, signed into law in 2021. The SC RON statute authorizes a commissioned electronic notary public to perform notarizations using two-way audio-video communication for principals located in or outside the State, subject to identity proofing, credential analysis, and a recorded session. The SC framework supports remote execution of trusts, durable powers of attorney, and healthcare directives for SC residents — which is what makes a fully virtual signing appointment possible. Will execution involving RON has more nuanced requirements than the other documents, and I walk every SC client through the signing procedure during their consultation.

Spousal elective share — S.C. Code §§ 62-2-201 et seq.

South Carolina protects a surviving spouse from disinheritance through the elective share provisions in Part 2 of Article 2 of the Probate Code. Under § 62-2-201 et seq., a surviving spouse of an SC decedent may elect to take a share of the decedent’s probate estate instead of taking under the will.

One-third of the probate estate — a flat percentage

The SC elective share is a flat one-third of the probate estate. SC does not use the NC-style sliding scale based on length of marriage, and the SC measure is the probate estate (not the broader “total net assets” pool used in NC). The election must be made within strict statutory time limits — generally within eight months after the date of death or six months after the probate of the decedent’s will, whichever is later. The interaction with non-probate transfers, prenuptial agreements, and trust planning is detailed; SC’s framework is meaningfully different from NC’s and should be planned for directly.

When to consider a trust vs. a will in South Carolina

For many South Carolina families, a properly drafted will plus a witnessed-and-recorded durable POA and a healthcare power of attorney is a complete plan. A revocable living trust adds value when one or more of the following is true:

• You own real property in more than one state (a trust avoids ancillary probate).
• You want privacy — Probate Court filings in SC are public; trust administration is not.
• You have a blended family and want to control the order and timing of distributions to children from prior relationships.
• You want to avoid Probate Court supervision and shorten the time to distribute.
• You expect contests and want the higher procedural bar that comes with trust litigation.

For a side-by-side comparison and pricing, see wills and trusts.

Common mistakes South Carolina residents make

The same five planning failures account for the majority of problems I see in SC probate. None of them are sophisticated. All of them are avoidable.

1. Relying on a handwritten will. SC does not recognize holographic wills. A document signed only by the testator, without two competent witnesses, will not be admitted to probate in SC even if the testator clearly intended it as their will.
2. Using an unwitnessed or unrecorded POA for real property. SC requires two witnesses and a notary for a durable POA, and recording in the Register of Deeds (or Clerk of Court) before the POA is effective for real property. Out-of-state POAs that lack witnesses are routinely rejected by SC closing attorneys.
3. Funding the trust on paper, not in fact. Same problem as in NC — signing the trust does not move title. The deed, the brokerage retitling, the assignment of personal property — without those, the trust holds nothing and probate runs anyway.
4. Treating the will as the whole plan. Beneficiary designations on retirement accounts, life insurance, and TOD/POD accounts pass outside the will. A perfectly drafted will does nothing for the IRA that names an ex-spouse as primary beneficiary.
5. Ignoring the elective share when leaving probate assets to non-spouse beneficiaries. An SC spouse can elect to take one-third of the probate estate within the statutory window. Planning around this requires affirmative drafting — usually a pre- or post-marital agreement, or trust planning that funds the elective share intentionally.

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. Every plan I draft for a SC resident is built on the statutes above — Title 62 of the SC Code and the related healthcare statutes in Title 44. You can read more on the attorney page or book a free consultation directly. Local pages: Charleston, Columbia, Greenville, Mount Pleasant, Rock Hill, Summerville, Bluffton, Rock Hill.

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