Updated January 25, 2024
The South Carolina living trust is a legal instrument used to avoid probate during the disposition of an estate. The Settlor will place their property into the trust and assign a Trustee to manage it (the Settlor can put themselves as Trustee during their lifetime). At such a time as laid out within the trust document, the trust will be divided between the named Beneficiaries without litigation (probate). In addition to bypassing the probate process, a living trust provides extra assurance that the Grantor’s estate is well handled and keeps the disposition of their assets private.
Laws – Title 4, Article 7 (South Carolina Trust Code)
Will (Last Will and Testament) – A “pour over will” should be used to include any assets which have not been transferred into the trust.
Individual Roles
In a living trust, the following roles must be assigned:
Grantor (or “Settlor”) – The creator and funder of the trust.
Trustee – The person named as the manager of the trust.
Successor Trustee – The person designated to become Trustee if/when the Trustee is no longer able to perform their duties.
Beneficiaries – The person(s) who will inherit the property contained within the living trust.
Types
Irrevocable – An Irrevocable Trust not only avoids the probate process, but also avoids the threat of creditors, lawsuits, and estate taxes. Once created, it cannot be altered or revoked.
Revocable – A Revocable Trust avoids probate and can be altered or revoked once it is created.
How to Make a Living Trust in South Carolina
A South Carolina trust may be created under § 62-7-402 by anyone who is of sufficient capacity to do so. The trust must name a Trustee, a Beneficiary, and give clear instructions as to what duties the Trustee will have. The Grantor cannot name the same person as sole Beneficiary and sole Trustee. The trust document must be signed and, preferably, notarized. Once the document has been created and signed, the ownership of all included property must be properly transferred into the living trust.
Motor Vehicles – You can transfer your vehicle(s) into the trust by filling out a Bill of Sale which reflects the transfer of ownership.
Real Estate – Real estate is transferred into the trust by filling out a South Carolina Deed, notarizing it, and filing it with the appropriate County Register of Deeds.
Do I Need a Living Trust?
South Carolina has adopted the Uniform Probate Code, which simplifies the disposition of a Will. Therefore, if you have a small estate with few holdings, creating a living trust may not be worth the time and expense. For estates valued at $25,000 or less, inheritors can file a Small Estate Affidavit with the decedent’s Probate Court to transfer property without probate.
If you do have a large estate, forming a living trust can give you the assurance of laying out clear plans for how your assets are to be handled during your lifetime and in the event of your incapacitation or death. Your estate will be divided quickly and without litigation, saving your successors from expending a lot of time and money on probate court proceedings. If you are would like to protect your assets from creditors and law suits, you can create an Irrevocable Trust, which provides this security.