Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney to discuss your specific situation.
Detailed Answer
1. Intestate Succession in South Carolina
When someone dies without a will (“intestate”) in South Carolina, the South Carolina Probate Code sets out who inherits. Under SC Code Ann. § 62-2-203 (https://www.scstatehouse.gov/code/t62c002.php), a surviving spouse and children share the estate. If a minor is an heir, the court must hold their share in protection until they reach legal age.
2. Appointment of a Guardian of the Estate
The probate court appoints a guardian of the estate to manage the minor’s inheritance. The guardian must file a petition in the county probate court (SC Code Ann. § 62-3-101 et seq., https://www.scstatehouse.gov/code/t62c003.php). The court reviews the guardian’s qualifications and typically requires a bond under SC Code Ann. § 62-3-302 to secure faithful performance. The guardian files periodic accounting reports with the court, ensuring transparency and court oversight.
3. Uniform Transfers to Minors Act (UTMA) Custodianship
Instead of a formal guardianship, funds can transfer to a custodial account under the South Carolina Uniform Transfers to Minors Act (UTMA). Under SC Code Ann. § 62-5-501 et seq. (https://www.scstatehouse.gov/code/t62c005.php), any person can name a custodian to hold assets for the minor until age 18 (or a later age up to 25 if designated). The custodian manages the assets without court supervision and must use them for the minor’s benefit.
4. Court-Supervised Trust Alternative
In certain cases, the court may order a trust for the minor’s benefit under SC Code Ann. § 62-2-719 (https://www.scstatehouse.gov/code/t62c002.php#62-2-719). A trustee—often the personal representative or a bank trust department—manages the assets until the minor reaches an age set by the court. This option offers more flexibility in distribution schedules and investment management.
5. Ensuring Accountability and Oversight
Whether via guardianship, UTMA custodianship, or court-approved trust, South Carolina law ensures that a successor fiduciary provides regular accountings and obtains court approval for major actions. This oversight protects the minor’s inheritance from mismanagement and misuse.
Helpful Hints
- File a guardianship petition promptly to avoid delays in accessing funds for the minor’s needs.
- Compare guardianship versus UTMA to choose the right level of court involvement.
- Consider naming a trusted custodian in future planning to streamline transfers if you have minor heirs.
- Review bond requirements and potential waivers to reduce costs for the estate.
- Keep detailed records of all expenditures and reports submitted to the probate court.
- Consult a probate attorney early to navigate procedural deadlines and paperwork.
- Watch statutory age limits: UTMA custodianship ends at age 18 (up to 25 if designated) and guardianship at 18.