A key step in the probate process is submitting the decedent’s will to the court for approval. Until the judge accepts the will as valid, the process cannot move forward and the decedent’s heirs and beneficiaries cannot receive their inheritances.
Five will requirements
A will can be a fairly simple document in which the testator lays out who should inherit their estate, what those heirs should receive, and who their choice of executor will be. Its contents are largely up to the testator’s personal preferences and needs. But South Carolina probate law does contain some requirements for wills. A will that does not contain all of the following is at serious risk of getting rejected by the probate court.
- The testator (person drawing up the will) must not be a minor when the will is executed.
- The testator must have the mental capacity to understand the will’s contents and implications, i.e., they must be of “sound mind.”
- The testator must have signed the will, or if they are physically unable, must be signed in the testator’s name in their presence and at their direction.
- The signature must be witnessed by at least two individuals.
- The will must be in writing.
Many people choose to draw up their own will without an attorney’s help. The problem arises when the testator accidentally omitted one of these requirements, such as the two-witnesses rule. This could invalidate the will. If there isn’t another will to submit, South Carolina’s intestacy laws would apply. These laws determine who inherits someone’s estate when they pass away without a valid will in place. Often, these contradict the decedent’s final wishes, but without a valid will, it may be the only option.
As the executor, you may have no control over whether the decedent’s will is valid. But you can do everything possible to honor their final wishes and make probate go as quickly and smoothly as you can — with the help of a qualified attorney.