Contact us today: 843.718.0232
Share

Beneficiary Rights

A death in the family can be difficult to process, whatever the circumstances. But when the will makes no provision for a family member, emotional turmoil can quickly turn to financial. It can be equally shocking when there is no will and a close friend or charitable organization suddenly realizes that a promised gift will not be forthcoming.

Courts in South Carolina generally give great deference to a deceased’s last expressed wishes, but there are circumstances in which an anticipated beneficiary may contest a will or the application of the default rules for intestate distribution. Making the case for this departure from the usual rules can be difficult, however.

When there is a Will

What if, to everyone’s surprise, a non-relative receives a large inheritance and a spouse or only one of several children is disinherited. A disinherited person may seek to have a will invalidated because of:

  • Fraud;
  • Undue influence;
  • Forged documents or signatures; or
  • Lack of mental capacity.

These terms have very special meanings under South Carolina law which may be different from the way the words are used in everyday language. The categories also often overlap..

For example, the classic example of fraud occurs when the testator (person signing the will) is presented with a document and told that it is simply a power of attorney or some other document. He signs without realizing that it was a will. The problem with proving fraud is that the testator is long past testifying about his or her understanding at the time of the signing..

Showing that a caregiver or relative influenced the testator in a way that overbore their genuine intentions about a bequest is similarly problematic. .

Both situations are more likely to occur when a person suffers from diminished mental capacity. But, as many who have cared for someone with dementia realizes, there are sometimes moments of lucidity when an otherwise genuinely disabled person knows exactly what they are doing and what they intend. These cases tend to depend heavily on contemporaneous testimony about the testator’s state of mind and expressed intention. .

Forgery, although rare, is comparatively straightforward to demonstrate, and may be an element of a case when a document is improperly drafted, executed or witnessed..

A surviving spouse who is disinherited may also challenge a will under South Carolina’s “elective share” laws, providing that he or she is still married to the decedent at the time of death.

If a will is found to be invalid, the decedent’s assets pass under the terms of a prior will or under South Carolina intestacy laws.

When there is no Will

When a person dies without making a will, or intestate, his or her property must go through the probate process in order to transfer legal title to the property to their heirs. In general, distributions will be made to relatives, in an order set by law..

A widow is the first person entitled to inherit. If the decedent did not have children, the surviving spouse inherits the entire estate. However, if the decedent had children, the surviving spouse is entitled to one-half of the estate, while the decedent's children inherit equal shares of the remaining half. Thereafter, intestate succession laws move through the decedent’s siblings, parents and grandchildren. If no family members can be found, even after a diligent search for lost heirs, the assets of the estate will be paid to the state..

Separate and apart from the risk that a lost heir will appear, several other unusual rules apply in South Carolina. Stepchildren, for instance, are not included in the order of intestate distributions. Nonmarital children also face particular hurdles. When, in a complicated tragedy like a fatal car accident, it is not clear which of the spouses died first, further problems can follow. Under law, one spouse must have survived the other by 120 hours in order to inherit. These complexities should be discussed with expert estate counsel on an individual basis..

Assets that Pass to Beneficiaries outside of a Will

A great many assets pass to beneficiaries outside of the will. These may include a family home, jointly titled to both husband and wife or the assets held in a joint bank account. Life insurance proceeds and retirement plan savings will similarly pass to the named beneficiary. Assets held in trust will also pass outside the operation of a will..

In many circumstances, these elements actually comprise the bulk of an individual’s wealth. .

Four Good Reasons not to Anticipate your Bounty

As a word to the wise, however -- even when you feel confident of your inheritance, there are at least four good reasons not to spend it in advance:.

Funeral expenses come first. The person who arranges the funeral is responsible for paying the costs but is entitled to reimbursement from the estate ahead of other creditors. A very small estate may be exhausted by these expenses;.

  • If the testator died owing more than he owned, the claims of creditors, including the cost for treatment of a last illness, come next. There may not necessarily be any money left over, whatever his or her stated intentions.
  • The proceeds of any life insurance policy, 401(k) or Individual Retirement Account will pass to named beneficiaries, separate and apart from the provisions of the will;
  • If there are legal costs related to your inheritance, for example if you must sell land in order to collect cash, those will likely come out of your pocket. The same is true of taxes.

How Wiles Law Firm, LLC Can Help

If you have questions about your rights as a beneficiary, please come and talk to us. For that matter, come and talk to us about how to protect your will from a challenge if you foresee that possibility in the future. Every situation is different, and there may be simple steps you can take to protect your interest or your wishes. Contact us today to schedule a consultation.


Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

Information on this website is not legal advice. Further, viewing of the enclosed information does not create an attorney-client relationship with Wiles Law Firm, LLC. Matters will be handled by attorneys who primarily practice out of our office in Charleston County located at 852 Lowcountry Blvd., Ste. 101, Mt. Pleasant, SC 29464. M. Emerson Wiles, III is the attorney responsible for this advertisement.

Any result Wiles Law Firm, LLC may achieve on behalf of one client in one particular matter does not necessarily indicate similar results can be obtained for other clients. Please contact a South Carolina estate planning attorney or one of our attorneys with Wiles Law Firm, LLC for a consultation regarding your unique estate plan.



© 2019 Wiles Law Firm, LLC | Disclaimer
852 Lowcountry Blvd., Suite 101, Mount Pleasant, SC 29464
| Phone: 843-718-0232

Wills & Trusts | Asset Protection | Irrevocable vs. Revocable Trusts | Community Property Trust | Stand-Alone Retirement Trusts | Family LLCs | Gift Trusts | Inheritor's Trusts | High Net-Worth Estate Planning | Special Needs Trusts | IRA Trusts | LLC Formation | Powers of Attorney | Guardianships | Conservatorships | Pet Trusts | Special Needs Planning | HIPAA Authorization | Trusts for Minors | Living Wills | Gun Trusts | Veterans Planning | Spousal Lifetime Access Trust (SLAT) | Estate Planning for Farmers | Wills vs Revocable Trusts | Beneficiary Rights | Wills v. Trusts | Probate & Trust Administration | Estate Planning | Incapacity Planning | Family Protection and Wealth Transfer | Advanced Estate Planning | | Resources | Contact Us | About Us | Practice Areas

Google+Twitter

Attorney Website Design by
Zola Creative