IS MY OUT OF STATE WILL VALID IN SC?

To:       Deirdre W. Edmonds
From:  Disappointed Wife in Horry County
RE:       Invalid Out-of-State Will

I love reading your column.  The only thing about last wills for the State of SC a lot of people don’t know is that it requires two signatures on it to be legal.  I found this out the hard way.  My husband had a last will with only one signature and the probate court would not recognize it.  So please inform your readers of this if they chose to make their own Last Will themselves. 

I received the above email from a reader and was asked to warn others of the dangers of not insuring that your out-of-state Will is valid in this state after you have moved to SC.  It is not at all surprising that I would hear this complaint given that it is by far the most often-asked question when I speak to groups about estate planning and probate: Is my out-of-state Last Will and Testament valid here?  My normal, short answer is that if you have an out-of-state Will and it was prepared by an attorney in that other state, then chances are that it is a valid Will in this state (but I always insert a caveat and recommend that an out-of-state Will be reviewed by a SC attorney to make sure it is valid and still contains your wishes as to the disposition of your property). 

The reason I qualify my answer with “if it was prepared by an attorney” is because if an attorney was involved in the preparation and execution of a Will, the Will was likely properly executed under the laws of the state in which it was executed (and if not, then we call that malpractice), and our state law provides that an out-of-state Will that was executed in compliance with the law of the state where it was executed at the time it was executed is a valid Will under SC law. Hence, my qualifier about the involvement of an attorney is prefaced with the assumption that the assistance of an attorney generally means that the Will was properly executed.   

Therefore, the simplest answer to the question about whether an out-of-state Will is valid in SC is that if you have an out-of-state Will and it was executed in compliance with the law of the state in which it was executed at the time it was executed, it will be a valid Will in SC.

Our state law also provides other circumstances under which an out-of-state is valid in our state.  An out-of-state Will is valid if it complies with the law at the time it was executed of either (i) the place where the person making the Will was domiciled (legally resided) at the time it was executed or (ii) the place where the person who made the Will was domiciled at the time of his or her death.  So, you could live in one state, execute a Will in another state and then die in a totally different state and, if your Will was executed in compliance with the law at the time of its execution of any of these three states, it will be a valid Will in SC.

In addition, our state law also provides that a Will is valid if it is executed in compliance with the execution requirements for Wills under our state law either (i) at the time of its execution or (ii) at the date of the person’s death.  Therefore, you have a couple more chances for your out-of-state Will to be valid in SC if it meets the execution requirements of our state law for Wills.

In order for a Will that is executed in South Carolina to be valid it must be (i) in writing, (ii) signed by the person making the Will (or signed for them by another person at their direction and in their presence), and (ii) signed by two witnesses.  Under our former law, three witnesses were required in order for a Will to be valid but our state reduced the number of witnesses from three to two in the 1980’s.  Most states now only require two witnesses although some may still require three witnesses.  I am not aware of any state that only requires one witness for a Will to be valid. 

Some states recognize holographic Wills as valid Wills. A holographic Will is a Will that is written in the handwriting of the person making the Will and is sometimes referred to as a death bed Will, one that a person writes shortly before their death.  A state may recognize a holographic Will and may not require any witnesses in order for it to be valid but usually it must be written entirely in the person’s own handwriting.  South Carolina does not recognize holographic Wills.  However, a Will that is the maker's own handwriting that is properly witnessed by two witnesses is valid in SC.

So, if you have a Will that was executed in another state that was prepared by an attorney and the attorney assisted with its execution, it is probably a valid Will under SC law and can be presented after your death to our probate court as your Last Will.  But, just because your out-of-state Will is valid in South Carolina does not necessarily mean that it will have the same effect in South Carolina as it does in the state in which it was executed. Just as the laws of the states vary as to the execution requirements for a valid Will, so too do the laws vary from state to state as to the construction or meaning of a Will.  And, given that a person’s primary administration is conducted in the state in which they are domiciled at the time of their death, it is always recommended that you have your out-of-state Will reviewed by an estate planning attorney in your new state of residence to make sure, not just that it’s valid under your new state’s laws but also that it still disposes of your property as you intend. That is a completely different issue and a question that I seldom hear but which is just as important, once you get past the question of whether your out-of-state Will is valid in SC.

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)