Full question:
Person A's son passed away four days ago. They had no other living relatives. Person A was the sole beneficiary of the estate of his son. After his time, he wanted the property to become a part of the trust and made a will to that effect. Yesterday, Person A also passed away due to a heart failure. What is the effect of this will?
- Category: Wills and Estates
- Subcategory: Intestacy
- Date:
- State: South Carolina
Answer:
In South Carolina, the intestacy laws require that the beneficiary outlives the decedent by a minimum of 120 hours (5days). This aspect is enumerated in S.C. Code Ann. § 62-2-104 which reads:“(1) For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (2):
(a) an individual who was born before a decedent's death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established that an individual who was born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period;
(b) an individual who was in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established that an individual who was in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
(2) This section does not apply if it would result in a taking of the intestate estate by the state under Section 62-2-105.”
Per the above-quoted provision, if the beneficiary failed to survive for the required period then they shall be deemed to have predeceased the decedent.
But subsection 2 of the above-quoted provision provides for an exception in the matter. It says that if the such an assumption results in the intestate estate being taken by the state, the provision in § 62-2-104 shall not apply. It means that a person shall not be deemed predeceased the decedent if such an assumption by operation of law results in escheat to the state.
In the case at hand, the father of the deceased does not survive the minimum required period prescribed in § 62-2-104. Neither the father nor the deceased have any other surviving blood relatives. The assumption per § 62-2-104 would cause the estate to lapse into the hands of the state. Here, subsection 2 of § 62-2-104 shall come into effect and the will of the father of the deceased shall become valid. The estate shall pass on to the trust per the will of the father of the deceased.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
