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The Basic Last Will and Testament


A Last Will and Testament (LWT) is a legal document that establishes how an estate or property of a person (Testator) will be managed and distributed upon death. A LWT establishes who will be in charge of the estate as Personal Representative, the powers of the Personal Representative and who will inherit the property of the estate.


In order to be valid, a LWT generally must be signed by the Testator and independent witnesses who have no interest in the Testator's estate. In South Carolina, a LWT must be executed in the presence of two witnesses.


In South Carolina, the LWT must be probated if the Testator died owning more than $10,000 worth of assets. If the Testator died owning less than $10,000 worth of assets, the estate can be probated through a less formal, Affidavit Procedure.  If the Testator died without any assets, the original LWT is still required to be filed with the Probate Court in the County where the Testator died.  Often, assets of a Testator may be found many years after his or her death and having the LWT on record will allow the newly discovered assets to be distributed to the proper beneficiaries.


When a person dies without a LWT, the heirs of that person's estate, and how the property of the estate is to be distributed, is determined by an Intestate Statute.  The Intestate Statutes vary from state to state but generally tend to produce results that would not normally be consistent with the desires of most people had they made a LWT.  In South Carolina, for example, a married person with two children who died without a LWT would have their estate distributed one-half to their surviving spouse and one-half to their two children.  This is generally an undesirable result for a surviving spouse. If you want to determine how the assets of your estate are to be distributed, a LWT is an essential legal document.


Pour-Over Last Will and Testament

A basic Pour-Over Will is used in combination with a Revocable Living Trust (RTA). An RTA is created during the Grantor's lifetime. Assets that were not transferred into the RTA during the Grantor's lifetime are "poured" into the RTA pursuant to a Pour-Over LWT. Unfortunately, the process by which the assets are "poured" in the RTA requires Probate which the RTA was implemented to avoid.


Proper estate planning should not be an event, but rather a process.  As your assets, family and personal circumstances change, you should review your estate planning documents periodically to see if they still meeting your current needs and requirements.


If you need basic estate planning documents or if you have an existing estate plan that needs to be modified or updated, please contact us today.



Charleston Tax Attorney, John Kachmarsky, and the Law Office of John Kachmarsky provide legal services in the areas of Asset Protection, LLC (Limited Liability Company) Formation, Business Formation, Contracts, Conservatorships, Powers of Attorney, Estate Administration, Probate, Estate Planning, Wills, Trusts, FINRA Disputes, Securities Losses, Income Tax, Tax Planning, Tax Controversy, Tax Litigation, Tax Settlement, and Offer in Compromise to individual and business clients in Charleston and throughout South Carolina and the U.S. including communities such as North Charleston, Summerville, Mt. Pleasant, Hilton Head Island, Myrtle Beach, Georgetown, Florence, Beaufort, Moncks Corner, Goose Creek, Isle of Palms, Daniel Island, James Island, Charleston County, Berkeley County, Dorchester County, Beaufort County, Horry County, Georgetown County, Florence County and Colleton County.

John Kachmarsky is a Charleston Tax Attorney with a Master of Laws Degree in Taxation.  Charleston Tax Attorney, John Kachmarsky, is licensed to practice law in South Carolina and Georgia and represents clients before the Internal Revenue Service and the United States Tax Court.

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