LAST WILL AND TESTAMENT AND TESTAMENTARY TRUST

of
[TESTATOR FULL LEGAL NAME]

(A South Carolina Domiciliary)

Effective Date: [DATE]
County of Domicile: [COUNTY], South Carolina

[// GUIDANCE: This complex will creates one or more testamentary trusts that spring into existence upon the Testator’s death. Tailor bracketed placeholders, distribution provisions, and fiduciary appointments to the specific client file. Review for consistency with any existing estate-planning documents (e.g., powers of attorney, life-insurance beneficiary designations, and pre-nuptial agreements).]

TABLE OF CONTENTS

I. Definitions
II. Preliminary Matters & Revocation
III. Appointment of Fiduciaries
IV. Payment of Debts, Taxes & Administrative Expenses
V. Specific Bequests
VI. Residuary Estate & Creation of the [NAME] Testamentary Trust
VII. Trust Administration Provisions
VIII. Fiduciary Powers, Standards & Indemnification
IX. Spendthrift & Creditor Protection
X. Governing Law, Venue & Dispute Resolution
XI. Miscellaneous
XII. Execution & Attestation
XIII. Self-Proving Affidavit (S.C. Code Ann. § 62-2-503)

I. DEFINITIONS

For purposes of this Will and any trust established herein, the following terms shall have the meanings set forth below. Capitalized terms used but not defined shall have the meanings ascribed in the South Carolina Probate Code or Uniform Trust Code, as applicable.

1. “Administrator” means the duly appointed Personal Representative if no Executor qualifies.
2. “Beneficiary” means any person or entity entitled to receive distributions under this Will or the Trust.
3. “Child” or “Children” includes biological and legally adopted descendants of the Testator and expressly excludes stepchildren unless specifically named.
4. “Code” means, collectively, the South Carolina Probate Code, S.C. Code Ann. §§ 62-1-101 et seq., and the South Carolina Uniform Trust Code, S.C. Code Ann. §§ 62-7-101 et seq.
5. “Executor” means the individual(s) nominated in Article III to serve as Personal Representative.
6. “Fiduciary” means the Executor, Trustee, Guardian, or any successor thereto.
7. “Issue” means lineal descendants of all degrees, by blood or legal adoption, per stirpes.
8. “Qualified Trust Property” means all assets transferred to or held in the Trust created herein.
9. “Residuary Estate” means all property subject to Testator’s testamentary disposition that is not otherwise specifically devised.
10. “Trust” or “Testamentary Trust” means the [NAME] Trust established under Article VI.
11. “Trustee” means the individual(s) or corporate fiduciary designated in Article III(B) and any duly qualified successor.

II. PRELIMINARY MATTERS & REVOCATION

2.1 Revocation of Prior Instruments. I, [TESTATOR NAME], of legal age and of sound mind, hereby revoke all prior wills and codicils and declare this document to be my Last Will and Testament.

2.2 Intent. This Will is executed in compliance with S.C. Code Ann. § 62-2-502 and is intended to dispose of all property over which I have testamentary power at death.

2.3 Statement of Family. I am [MARRIED/UNMARRIED] to [SPOUSE NAME], hereafter “my Spouse.” I have the following children: [LIST CHILDREN]. If additional children are born to or adopted by me after the date of this Will, they shall be included in all references to “Child,” “Children,” or “Issue.”

III. APPOINTMENT OF FIDUCIARIES

A. Personal Representative (Executor).
1. Nomination. I nominate [PRIMARY EXECUTOR NAME] as Executor. If he or she fails to qualify or ceases to serve, I nominate [SUCCESSOR EXECUTOR NAME] as successor.
2. Bond. No Fiduciary nominated in this Will shall be required to furnish bond unless required by a court for cause.

B. Trustee of the Testamentary Trust.
1. Initial Trustee. I nominate [PRIMARY TRUSTEE NAME] to serve as initial Trustee of the Trust created in Article VI.
2. Successor Trustee(s). If the initial Trustee fails to qualify or ceases to act, then [FIRST SUCCESSOR TRUSTEE] shall serve. Thereafter, [SECOND SUCCESSOR TRUSTEE] shall serve.
3. Corporate Trustee Option. If no individual Trustee is willing and able to serve, a trust institution having fiduciary powers under South Carolina or federal law may serve.

C. Guardian of Minor Children.
If at my death any child is under age 18, I nominate [PRIMARY GUARDIAN NAME] as Guardian, and [SUCCESSOR GUARDIAN NAME] as successor.

[// GUIDANCE: Verify that nominated guardians satisfy statutory qualifications under S.C. Code Ann. § 62-5-201 et seq.]

IV. PAYMENT OF DEBTS, TAXES & ADMINISTRATIVE EXPENSES

4.1 Mandatory Payments. My Executor shall first pay expenses of my last illness, funeral, and administration; enforceable debts; and all estate, inheritance, and similar taxes duly imposed.

4.2 Source of Payment. These obligations shall, to the extent allowable, be charged against the Residuary Estate before any specific bequest abates.

4.3 Apportionment. Taxes arising from Qualified Trust Property shall be apportioned against such property in accordance with applicable tax law unless the Trustee and Executor agree otherwise to achieve overall tax efficiency.

V. SPECIFIC BEQUESTS

5.1 Tangible Personal Property Memorandum. I may leave a written memorandum disposing of tangible personal property pursuant to S.C. Code Ann. § 62-2-512. The memorandum, if found and identified by my Executor, shall be binding.

5.2 Cash or Specific Gifts.
a. I give [AMOUNT] to [BENEFICIARY NAME], free of trust.
b. I give my [DESCRIBE ASSET] to [BENEFICIARY NAME].

5.3 Lapse & Anti-Lapse. If a beneficiary of a specific bequest fails to survive me by 120 hours, the gift shall lapse and pass as part of the Residuary Estate, subject to the anti-lapse provisions of S.C. Code Ann. § 62-2-603.

VI. RESIDUARY ESTATE & CREATION OF THE [NAME] TESTAMENTARY TRUST

6.1 Pour-Over. I devise and bequeath my entire Residuary Estate, real and personal, to the Trustee IN TRUST, to be held, managed, and distributed as provided herein.

6.2 Name of Trust. The trust created by this Article shall be known as the “[TESTATOR NAME] Testamentary Trust” (the “Trust”).

6.3 Separate Shares. Upon funding, the Trustee shall divide the Trust into separate shares for each Beneficiary as follows:
a. One share for my Spouse, if surviving;
b. Equal shares per stirpes for each Child who survives me;
c. Contingent share(s) as provided in Article VII if no descendant survives me.

VII. TRUST ADMINISTRATION PROVISIONS

7.1 Duration. Each trust share shall terminate upon the earliest of:
a. The Beneficiary reaching age [AGE, e.g., 35];
b. Prior complete discretionary distribution by the Trustee; or
c. The expiration of 21 years after the death of the last surviving descendant of any grandparent of mine alive at my death, in conformity with the rule against perpetuities.

7.2 Discretionary Distributions. Until termination, the Trustee may distribute to or for the Beneficiary’s health, education, maintenance, or support (“HEMS”) such amounts of income and/or principal as the Trustee, in its sole and absolute discretion, deems appropriate.

7.3 Mandatory Distribution. Commencing on the Beneficiary’s attainment of age [25], the Trustee shall distribute annually not less than [PERCENTAGE]% of trust principal.

7.4 Spendthrift. See Article IX.

7.5 Accumulations. All undistributed income shall be added to principal.

7.6 Final Distribution. Upon termination, the Trustee shall distribute the remaining principal and accumulated income outright to the Beneficiary. If the Beneficiary is then deceased, his or her share shall pass per stirpes to his or her Issue, or, if none, to my then-living Issue, per stirpes.

VIII. FIDUCIARY POWERS, STANDARDS & INDEMNIFICATION

8.1 Incorporation of Statutory Powers. In addition to powers granted elsewhere, each Fiduciary shall have all powers conferred by the Code, including but not limited to those under S.C. Code Ann. §§ 62-3-715 (Personal Representative) and 62-7-801 to -816 (Trustee).

8.2 Delegation; Investment Authority. The Trustee may employ professionals and delegate investment functions under S.C. Code Ann. § 62-7-807, and may invest in any kind of property deemed suitable without regard to diversification, subject to the prudent-investor rule.

8.3 Fiduciary Standard of Care. A Fiduciary shall discharge duties in good faith, in accordance with the purposes of the Trust, and in the best interests of the Beneficiaries, consistent with S.C. Code Ann. § 62-7-804.

8.4 Indemnification. To the fullest extent allowed by law, the Trust shall indemnify each Fiduciary against all claims, liabilities, and expenses, including reasonable attorneys’ fees, incurred by reason of serving hereunder, except those arising from the Fiduciary’s willful misconduct or gross negligence.

8.5 Limitation of Liability. A Fiduciary’s personal liability shall at all times be limited to the extent of the Qualified Trust Property under his or her control; no Fiduciary shall be liable with his or her personal assets for obligations incurred as Fiduciary, absent willful misconduct or gross negligence.

8.6 Removal & Appointment. A majority of current adult Beneficiaries may, by written instrument delivered to the Trustee and filed with the probate court, remove a Trustee and appoint a successor who is not adverse within the meaning of § 672 of the Internal Revenue Code.

8.7 Compensation. Fiduciaries shall be entitled to reasonable compensation consistent with statutory schedules or written fee agreements.

IX. SPENDTHRIFT & CREDITOR PROTECTION

9.1 Spendthrift Clause. To the maximum extent permitted by S.C. Code Ann. § 62-7-502, no interest of any Beneficiary shall be subject to voluntary or involuntary alienation, assignment, pledge, or seizure by legal process. Notwithstanding the foregoing, the Trustee may satisfy a Beneficiary’s court-ordered child-support obligation pursuant to S.C. Code Ann. § 62-7-503.

X. GOVERNING LAW, VENUE & DISPUTE RESOLUTION

10.1 Governing Law. All questions concerning validity, construction, and administration shall be determined under the laws of the State of South Carolina.

10.2 Exclusive Venue. The probate court for the county in which I am domiciled at my death shall have exclusive jurisdiction over the probate of this Will and any disputes concerning the Trust.

10.3 Injunctive Relief. Any court of competent jurisdiction sitting in said venue may grant temporary, preliminary, and permanent injunctive relief to enforce the Trust’s provisions without requiring the posting of bond by any Fiduciary.

10.4 Jury Trial Waiver. Proceedings in the probate court are without jury; to the extent a jury might otherwise be available, all parties knowingly waive the right to trial by jury in any proceeding pertaining to this Will or Trust.

10.5 Arbitration. No provision of this Will shall be construed as requiring arbitration of probate or trust matters.

XI. MISCELLANEOUS

11.1 Simultaneous Death. Any Beneficiary failing to survive me by 120 hours shall be deemed to have predeceased me for purposes of this Will, unless contrary application of S.C. Code Ann. § 62-1-507 is mandated.

11.2 Spendthrift Savings Clause. If any provision of Article IX is held invalid, the remaining valid portions shall nevertheless be applied to the maximum extent permitted by law.

11.3 Headings. Headings are for convenience only and shall not affect interpretation.

11.4 Gender & Number. Words of any gender include all genders; plural includes singular and vice-versa, as the context requires.

11.5 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the court shall reform the invalid provision to carry out my intent within the limits of the law.

11.6 Integration. This Will embodies my entire testamentary intent, and no extrinsic evidence may be used to vary its terms except as expressly provided by the Code.

XII. EXECUTION & ATTESTATION

IN WITNESS WHEREOF, I, [TESTATOR NAME], the Testator, sign my name to this Will on the date first written above, and being duly sworn declare to the undersigned witnesses that I am of legal age, of sound mind, and under no constraint or undue influence, and that this instrument is my Will.

__________
[TESTATOR NAME], Testator

We, the undersigned witnesses, sign our names hereto in the presence of the Testator and of each other, and at the Testator’s request, and we declare under penalty of perjury that the Testator is of sound mind and under no undue influence, and that the Testator declared this instrument to be his or her Last Will.

[// GUIDANCE: South Carolina requires two competent witnesses (S.C. Code Ann. § 62-2-502). Neither should be a beneficiary nor spouse of a beneficiary.]

XIII. SELF-PROVING AFFIDAVIT

(S.C. Code Ann. § 62-2-503)

STATE OF SOUTH CAROLINA
COUNTY OF [COUNTY]

We, the Testator and the witnesses, whose names are signed above, and whose addresses are set opposite our respective names, being first duly sworn, declare to the undersigned officer that the Testator signed the instrument as the Testator’s Last Will and that the Testator had attained the age of eighteen years, was of sound mind, and not under duress, menace, fraud, or undue influence, and that we witnesses, in the presence and hearing of the Testator, signed the Will as witnesses and that to the best of our knowledge the Testator was, at the time of the execution, at least eighteen years of age, of sound mind, and under no duress, menace, fraud, or undue influence.

Subscribed, sworn to, and acknowledged before me by the Testator and witnesses on [DATE].

__________
Notary Public for South Carolina
My Commission Expires: ___

[// GUIDANCE: Record this Will with the probate court only after death. Prior recording may defeat privacy objectives. Ensure that fiduciary nominations comply with client’s financial institution requirements.]