Ask the Expert: What happens if I don’t have a will?

Expert Answer: Many people put off writing a will, thinking they’ll get to it “someday.” But what happens if that day never comes? Dying without a will—known legally as dying intestate—means the state decides who receives your property, who handles your estate, and even who will care for your minor children. That can lead to confusion, delays, and outcomes that may not reflect your wishes.

When someone passes away without a will in South Carolina, the intestate succession laws determine who inherits their property. Generally, the estate passes to the closest living relative(s)—starting with a spouse and children, then parents, siblings, or more distant family if no immediate relatives exist. More specifically, if you are married and you have children, your spouse and children will each get a share or your estate. It is not the case that “everything” goes to your spouse! This legal formula doesn’t consider blended families, unmarried partners, or your personal relationships. Someone you care about deeply may end up with nothing simply because the law doesn’t recognize them as an intestate heir.

Dying without a will also means you don’t get to choose who manages your estate. The court must appoint a personal representative (sometimes called an executor) to handle your affairs, which can lead to family disagreements or delays while the court decides who is best suited for the role.

All estates—whether or not there is a will—must go through probate, the court-supervised process of settling someone’s affairs. During probate, the personal representative must notify creditors that the estate is open by publishing a legal notice in a local newspaper. Under South Carolina law, creditors then have eight months from the date of that notice to file any claims against the estate. Because the estate cannot be fully closed until that creditor period has expired, probate in South Carolina takes at least eight months. It can easily take much longer if there are disputes, property to sell, or complex assets involved.

For parents, one of the most serious consequences of not having a Will is that you lose the right to name a guardian for your minor children. Instead, the court must decide who will raise them—potentially creating emotional and legal challenges for your family.

Having a will in place provides clarity, can shorten the probate process, and gives your loved ones the guidance they need when they need it most. It’s not just about distributing property—it’s about protecting your family and ensuring your final wishes are honored.

If you haven’t created a will yet, talk with an experienced estate planning attorney. A little planning today can save your loved ones months—or even years—of stress and uncertainty later.

For educational purposes only. This is not legal advice. Lisa Hostetler Brown is a Certified Elder Law Attorney certified by the National Elder Law Foundation. 2 Hampton Hall Blvd, Ste 100, Bluffton, SC 29910. | 843-757-5294 | LawyerLisa.com.