Is a Handwritten Will Legal in South Carolina?
The answer to this question is a very clear yes and no. While a handwritten will is technically legal, there are some criteria that must be met. These criteria include:
- The will must be in writing.
- It must be signed by the person making the will; or
- The will may be signed by someone else in the testator’s presence and at their direction. However, we only recommend this in very specific circumstances.
- It must be signed by two individuals who witnessed the signing or the testator’s acknowledgment of the signing. These witnesses cannot have an interest in the estate or stand to benefit from the proceeds of the will. If a will is not notarized, the probate court must call the witnesses to court to verify their signatures.
Interestingly, wills in South Carolina do not have to be notarized. A notary attests to the identity of the persons signing a legal document. In the case of a will this would include the testator and the witnesses. However, best practice does mean including a notary, especially if there is a chance of the will being challenged.
Benefits and drawbacks of handwriting your will
The obvious and probably only benefit of handwriting your own will is the upfront cost savings. It does not cost anything to write your own will other than your time. However, there can be some substantial drawbacks. First, there is a reason legal documents are no longer handwritten. Many people's handwriting is not good and this can lead to serious issues for anyone trying to read the document. Also, if language is ambiguous or seems like it could be interpreted in several ways, heirs often fight to have the will interpreted by the Court through expensive litigation.
In addition, it is likely that anyone writing up their own document will leave out some of the very important "what-if" language that absolutely needs to be included to avoid future conflicts. If certain specific language is left out, your Personal Representative may have to post bond or have court hearings to be able to handle basic parts of the estate administration.
A famous case of a handwritten will is that of Aretha Franklin. Initially, it was believed that she died without a will. Then two handwritten wills were found in her home, one in a safe and another in the cushions of her sofa. After five years of court cases, a jury found that the will discovered in her sofa was valid. The years of court cases wasted time and resources and left her four sons bitter.
You may have also heard the term holographic will. This is a will that is written and signed in the testator’s handwriting but is not witnessed. Because this form of will does not meet the requirement of being witnessed it is not legal in South Carolina, and if this was the only will done, the estate will be treated as if the testator died intestate (meaning without a will).
A Better Way
A better way to care for your loved ones and insure your legacy is to put together a comprehensive estate plan with an experienced estate planning attorney. At Stratton and Reynolds, we listen carefully to your concerns about your assets and your loved ones. We can help you create a plan that distributes assets according to your wishes with minimal probate and estate tax costs. Call us today at 803-358-7214 or complete the contact form here to set up your free consultation to get started.
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