South Carolina Living Trust

Introduction

Key Things to Know

1. 1

   South Carolina's sharpest planning risk: the elective share otherwise reaches only the probate estate (Section 62-2-202(b)), but Section 62-7-401(c) lets a court find this trust illusory for elective-share purposes alone, pulling its assets back into the calculation, if the settlor kept a revocation right, substantial beneficial interests, or investment control. The trust stays valid for every other purpose; only the elective-share math changes.

2. 2

   Funding is stricter than creation. No notary or witness is needed to create a South Carolina living trust, and Section 62-7-407 will even enforce a trust of personal property proved orally by clear and convincing evidence. But the deed funding a home into that same trust must be signed and either proved by a subscribing witness's affidavit or acknowledged before two witnesses (S.C. Code Section 30-5-30(A)-(B)), plus carry a derivation clause tracing the prior deed (Section 30-5-35).

3. 3

   Effective May 8, 2025, Act No. 25 extended South Carolina's wait-and-see rule against perpetuities from 90 to 360 years: a nonvested interest is valid if it vests within 21 years of a life in being at creation, or in fact within 360 years (S.C. Code Section 27-6-20(A)). This is a recent, dateable change well past the standard 90-year rule most states use.

4. 4

   South Carolina has no domestic asset protection trust statute. Even an irrevocable trust funded for the settlor's own benefit still lets a creditor reach the maximum distributable amount (Section 62-7-505(a)(2)), and this revocable trust gives zero protection from the settlor's own creditors during life (Section 62-7-505(a)(1)). A revocable trust never shields assets from creditors or reduces estate tax while the settlor is alive.

5. 5

   Section 62-7-601 holds a settlor to the higher capacity standard used for making a will, not ordinary contract capacity, when creating, amending, or revoking this trust, a stricter, non-uniform rule most Trust Code states do not impose.

6. 6

   South Carolina has no trust registration statute; nothing in Title 62, Article 7 requires filing this trust with any court. The only public filings are the recorded funding deed and, optionally, a certificate of trust under Section 62-7-1013 furnished in place of the full instrument.

7. 7

   South Carolina's homestead exemption is a fixed $50,000 creditor and bankruptcy exemption in a residence, up to $100,000 combined for multiple owners of one living unit (Section 15-41-30(A)(1)(a)), with no inflation adjustment in the statute. It is a creditor exemption, not a devise homestead, and no provision addresses whether it survives retitling the residence into this trust; trust assets remain reachable by the settlor's own creditors during life regardless (Section 62-7-505(a)(1)). South Carolina's estate tax, Title 12, Chapter 16, computes to $0 for every death since 2005 because the federal credit it relies on was eliminated, and South Carolina has no inheritance tax.

South Carolina Requirements for Living Trust

• South Carolina Funding Deed: Witnesses and Derivation Clause

  A deed conveying South Carolina real property to the trustee must be signed by the settlor and either proved by a subscribing witness's affidavit or acknowledged before two witnesses (S.C. Code Section 30-5-30(A)-(B)), and must carry a derivation clause tracing the prior deed and the grantee's mailing address (Section 30-5-35).

• South Carolina Illusory Trust Risk to the Elective Share

  South Carolina's elective share otherwise reaches only the probate estate (Section 62-2-202(b)), but Section 62-7-401(c) codifies the illusory trust doctrine from Seifert v. Southern National Bank: a court may pull this trust's assets into the elective-share calculation if the settlor retained a revocation right, substantial beneficial interests, or investment control.

• South Carolina Perpetuities Period Extended to 360 Years

  Effective May 8, 2025, Act No. 25 extended South Carolina's wait-and-see rule against perpetuities from 90 to 360 years. A nonvested interest is valid if it vests within 21 years of a life in being at creation, or in fact within 360 years of creation (S.C. Code Section 27-6-20(A)).

• South Carolina Certificate of Trust

  Section 62-7-1013 lets the trustee furnish a certification of trust in place of the full instrument to a bank, title company, or other third party, without disclosing dispositive terms. A certificate concerning real property must be acknowledged so it can be recorded with the Register of Deeds.

• South Carolina No Asset Protection for Revocable Trust Assets

  Section 62-7-505(a)(1) subjects this revocable trust's assets to the settlor's own creditors during life, and South Carolina has no domestic asset protection trust statute; even an irrevocable self-settled trust still lets a creditor reach the maximum distributable amount (Section 62-7-505(a)(2)).

• South Carolina Will-Capacity Standard for Creating or Amending the Trust

  Section 62-7-601 holds the settlor to the higher capacity standard used for making a will, not ordinary contract capacity, when creating, amending, revoking, or adding property to this revocable trust, a stricter, non-uniform rule.