While the majority of estates where there is no will are handled by the first portion of S.C. Code §62-2-103 (covered in an earlier post), there are situations where there are no takers and we must go further to find an heir. A common example is the death of a minor child.
S.C. Code §62-2-103, in relevant part, states the following:
(2) if there is no surviving issue (children or children of children), to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents (siblings) or either of them by representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents (aunts/uncles), half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents(aunts/uncles) if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
In our example of a child fatality, this means that if the parents are living, they would equally share the estate by each receiving 50%. If; however, only one parent was alive, that parent would take the entire 100% of the estate assets. While this rule seems simple, imagine the heartburn it causes for a single parent when the absentee parent suddenly steps in to take his or her share. Since a minor child can’t write a will, this is a common occurrence. Some people dismiss the example assuming that minors rarely own assets; however, anyone with any experience in Probate Court can assure you that some of the largest jury verdicts in personal injury and product liability cases pass to children (or their estates) who are injured or killed due to the fault of someone else. Single parents in this situation should immediately seek legal counsel to determine what, if anything, might be done to prevent the absentee parent from receiving under S.C. Code §62-2-114.
If there are no surviving parents, then the issue (children) of the surviving parents (which would be the siblings of the decedent), would share equally. Under S.C. Code §62-2-107, this would include half-siblings of the decedent as they are receiving through their respective parent. Again, all the siblings would share equally and if there were a sibling who was deceased, his or her share would pass to his or her children by representation. If the sibling had no children, that share would be re-divided amongst the siblings who were taking under this statute.
The next step is as far as we will go in this example as it’s extremely rare and would again only apply if the decedent had no spouse, no children (including grandchildren, great-grandchildren, etc.), no parents, and no siblings or children of siblings (nieces/nephews). In that situation, the next taker would be the grandparents and the estate would be divided equally between the maternal and paternal sides. Aunts and uncles would step in if the grandparent(s) were deceased. Children of aunts/uncles would also be eligible if their parent was deceased.
Although the statute continues, it’s safe to say that the majority of estates without a will are determined in the first few sections. While the statute can be difficult to read, the law of intestacy is actually very straightforward and easily applied once you understand the basic principles. If you have any question as to whether or not you qualify as an heir or what share you will receive, seek a qualified probate attorney to assist you during a consultation.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.