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May 31, 2016

Making Tomorrow’s Decisions Today

greenville south carolina estate planning attorney

Most of us fear death, which is the reason that many of us take medicine, exercise, monitor our diets, and take other similar steps. This fear may help explain why somewhere around 50 percent of Americans either do not have wills or have neglected them to the point that they are hopelessly out-of-date.

This fear may also be one of the reasons for the rise of do-it-yourself estate planning, and there are plenty of companies who will play on this fear and offer fill-in-the-blank estate planning forms. These forms are generally legally binding and are better than having no plan at all. But a website cannot give you sound advice as to your legal and financial options and obligations, nor can it ensure that your documents are properly executed.

After as little as one appointment, an attorney can craft an estate plan that is tailored to fit your needs, so you can have the peace of mind that you, and not the state, will make important financial and legal decisions when you are no longer able to make them.

Wills in South Carolina

There are basically three types of wills: the typewritten estate planning documents that are normally prepared by a third party and signed by the testator or testatrix (a man or woman who makes a will) in his or her own handwriting, a nuncupative (oral) will, and a holographic (handwritten) will. Holographic and nuncupative wills are illegal in South Carolina, unless they were properly made in another state and executed according to that state’s laws.

Because of the prohibition on holographic wills, do-it-yourself codicils, or handwritten changes to a typewritten will, are generally illegal as well. Indeed, only a few states recognize these corrections; in most jurisdictions, the will has to be either entirely typewritten or entirely handwritten.

Although the restrictive South Carolina laws may make it more difficult to prepare a will, there is a high probability that non-typewritten “deathbed” wills are either entirely or partially fraudulent, so the law makes sense.

The testator/testatrix must personally sign the will, and the document must also be signed by two witnesses who actually saw the maker sign the instrument. A surprisingly high proportion of wills are thrown out of probate court because of a failure to follow this simple procedure. Minors cannot make wills in South Carolina under any circumstances, and the testators/testatrixes must understand the full extent of their heirs and property; they must also understand that the document they are signing is a will.

The will does not need to be notarized to be legal. But most all attorney-prepared wills include a self-proving affidavit, which must be notarized. This affidavit expedites the probate process, because the court does not need to reach out to the witnesses and verify their signatures and attendance.

Generally speaking, a will can dispose of any real or personal property that the testator/testatrix possess, except:

  • Property encumbered by a joint tenancy with right of survivorship;
  • Retirement account and life insurance proceeds;
  • Certain personal property; and
  • Shares to surviving children and spouses, if they are not in the will.

In addition to passing title of property to individuals, a will can also designate gifts to charitable organizations.

Some people use codicils, which are separate documents independently executed, to amend their wills. But, to avoid confusion during probate proceedings, the better practice is to physically destroy the out-of-date will and make an entirely new one.

Trusts in South Carolina

An often overlooked rule in this area is that, to be legal, a trust must have a corpus, which is nearly always money. An unfunded trust is not enforceable.

There are basically two types of trusts. Inter vivos trusts, or “living” trusts, are valid while the settlor (person making the trust) is still alive. The corpus is managed by a trustee for the later use of a beneficiary; the trustee and settlor can be the same person in an inter vivos trust. Legal title transfers from the trust to the beneficiary upon certain triggering events, such as the beneficiary’s maturity, settlor’s death, beneficiary’s marriage, or almost anything else.

Living trusts can be either revocable or irrevocable. As the names imply, an irrevocable living trust’s corpus is fixed, while the settlor may add to, or withdraw from, the assets in a revocable living trust. There may be significant tax consequences, because an irrevocable living trust’s corpus is a completely separate legal entity.

Testamentary trusts accompany wills and are effective only upon the testator’s death. Whereas an inter vivos trust is more of an asset-protection vehicle, a testamentary trust essentially serves an asset transfer and management purpose. Married individuals may elect either a general power of appointment trust, which enables the surviving spouse to make decisions during his or her lifetime, or a qualified terminable interest property trust (QTIP) that gives the surviving spouse a life estate but no decision-making power.

Other Estate Planning Documents

As we age, many of us lose the ability to effectively manage all our property. A sudden accident, like a fall or a motor vehicle crash, can have the same effect, at least over the short term. Furthermore, many of us travel extensively for work or pleasure, and are sometimes unavailable to make important decisions in a timely manner.

A power of attorney may be appropriate in all these situations. This document is an important part of a comprehensive estate plan, because it designates an individual to make decisions when we are unable to do so. Most power of attorneys can be either specific as to certain areas, such as a rental property or stock portfolio, or general as to all economic decisions.

A living will, which is sometimes called a DNR (do not resuscitate) order, serves a similar purpose. In this document, a family can make end-of-life medical decisions in advance and outside of the emotional factors that often influence these matters. A living will can also designate preferred healthcare facilities and/or providers, while giving family members other instructions.

A complete estate plan keeps you in the driver’s seat, when it comes to your money and your family. For a free consultation with an experienced Greenville estate planning lawyer, contact the Anderson Law Firm. After hours appointments are available.