Estate Planning

What Happens if You Die Without a Will in Greenville County, SC?

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Navigating the loss of a loved one is incredibly difficult. When that loss is compounded by the absence of a will, families in Greenville County often face a complex and uncertain legal landscape. If someone passes away without a valid will in Greenville County, South Carolina law dictates how their assets are distributed through a process called intestate succession, overseen by the Greenville County Probate Court.

South Carolina law provides a default plan, but this plan may not align with what your loved one would have wanted. Knowing how the system works can alleviate some stress during an already challenging time. Here, we explore South Carolina’s intestate succession laws, the probate process specific to Greenville County, potential complications, and how proactive estate planning can prevent these issues.

Understanding Intestacy and South Carolina’s Laws

When a person passes away without a valid Last Will and Testament, they are said to have died intestate. This situation triggers a specific set of legal rules under South Carolina law that dictate how the deceased person’s assets, known as their probate estate, are distributed among their surviving relatives.

What Does Dying Intestate Mean in South Carolina?

Dying intestate means the state, not the individual, determines who inherits the property. South Carolina’s laws of intestate succession act as a default estate plan. These laws are designed to distribute assets in a way the legislature presumed most people would choose, typically prioritizing the closest family members. However, this statutory plan often differs significantly from what the person might have specified had they created a will. Without a will, there’s no designated executor to manage the estate, no named guardians for minor children, and no specific instructions for distributing personal belongings or assets with sentimental value.

The South Carolina Probate Code: Governing Intestate Estates

The primary legal framework governing these situations is the South Carolina Probate Code, specifically Title 62. This code outlines a clear hierarchy for inheritance based on familial relationships. It details who qualifies as an heir at law and the specific share of the estate each eligible relative receives. The code covers various scenarios, including situations involving a surviving spouse, children, parents, siblings, and more distant relatives. Understanding these provisions is vital for anyone involved in settling an intestate estate in Greenville County.

Role of the Greenville County Probate Court in Intestate Cases

The Greenville County Probate Court plays a central role in overseeing the administration of intestate estates within its jurisdiction. The court is responsible for:

  • Appointing a Personal Representative: Since no executor was named, the court appoints someone (often a close family member) to manage the estate administration process. This individual receives official authority through documents called Letters of Administration.
  • Overseeing Asset Distribution: The court ensures that the estate’s assets are distributed according to South Carolina’s intestate succession laws.
  • Resolving Disputes: If conflicts arise among potential heirs or creditors, the Probate Court provides the legal forum for resolving these issues.
  • Ensuring Legal Compliance: The court monitors the personal representative’s actions to ensure they comply with all legal requirements, including notifying heirs, paying debts, and filing necessary reports.

Navigating the procedures of the Greenville County Probate Court can be complex, making legal guidance often beneficial. In summary, intestacy triggers state laws and court oversight to distribute assets when no will exists.

Who Inherits Your Estate Without a Will in Greenville County?

South Carolina’s intestate succession laws establish a specific order for who inherits property when someone dies without a will. The distribution depends entirely on which relatives survive the decedent.

The Legal Hierarchy: Determining Heirs Under SC Law

The South Carolina Probate Code outlines the following priority for heirs at law:

  • Surviving Spouse:
    • If the decedent has no surviving children (or descendants), the spouse inherits the entire probate estate.
    • If the decedent has surviving children, the spouse inherits one-half (50%) of the probate estate.
  • Children (Descendants):
    • If there is no surviving spouse, the children inherit the entire probate estate, divided equally among them.
    • If there is a surviving spouse, the children inherit the remaining one-half (50%) of the probate estate, divided equally.
    • The term “children” legally includes adopted children in South Carolina. Grandchildren may inherit the share their parent would have received if that parent predeceased the decedent (known as inheritance per stirpes).
  • Parents:
    • If the decedent has no surviving spouse or children, the parents inherit the entire estate equally, or the surviving parent inherits it all.
  • Siblings:
    • If the decedent has no surviving spouse, children, or parents, the siblings inherit the entire estate equally. Descendants of deceased siblings may inherit their parent’s share.
  • More Distant Relatives: If none of the above relatives survive, the law looks to grandparents, aunts, uncles, cousins, and other next of kin based on degrees of relationship.

What Happens if No Heirs Are Found? (Escheat to South Carolina)

In the rare event that absolutely no eligible heirs can be identified after a thorough search, the entire probate estate “escheats” to the State of South Carolina. This means the state government takes ownership of the assets. This outcome underscores the importance of having at least a basic will, even if one believes they have no close family.

Special Considerations: Stepchildren, Non-Marital Children, and Dependents

Intestacy laws can create complications in modern family structures:

  • Stepchildren: Stepchildren generally have no inheritance rights under South Carolina intestacy laws unless they were legally adopted by the decedent.
  • Non-Marital Children: Children born outside of marriage can inherit from their mother automatically. They can inherit from their father only if paternity was legally established before the father’s death (e.g., through court order, acknowledgement, or subsequent marriage of the parents).
  • Dependents: While the law prioritizes heirs based on relation, certain allowances might be available for financially dependent family members during the probate process, but specific inheritance rights are strictly defined by the hierarchy.

These rules highlight how intestacy may exclude individuals the decedent considered family or intended to provide for. Essentially, SC law follows bloodlines strictly, which can lead to surprising outcomes without a will.

Navigating the Probate Process for Intestate Estates in Greenville County

Probate is the court-supervised process of validating a deceased person’s affairs, paying debts, and distributing assets. When someone dies intestate in Greenville County, the probate process follows specific steps mandated by South Carolina law and overseen by the local court.

Initiating Probate: Filing and Appointing a Personal Representative

The process typically begins when an interested party (usually a potential heir) files an application with the Greenville County Probate Court to open the estate and be appointed as the Personal Representative. Since there is no will naming an executor, the court appoints someone based on a statutory priority list (often spouse, then adult children, then other relatives). The appointed Personal Representative receives Letters of Administration, granting them the legal authority to act on behalf of the estate.

Key Duties of the Personal Representative

The Personal Representative has significant responsibilities, acting under the court’s supervision. Key duties include:

  • Inventory and Valuation of Estate Assets: Identifying, locating, and determining the value of all assets belonging to the decedent that are subject to probate (real estate, bank accounts, vehicles, personal property, investments).
  • Notifying and Paying Creditors: Formally notifying known creditors and publishing a notice to potential unknown creditors. Valid debts, taxes, and funeral expenses must be paid from estate assets before distribution to heirs.
  • Managing Estate Assets: Protecting and managing assets during the probate period (e.g., maintaining property, managing investments).
  • Distributing Assets to Heirs: Once debts are paid and tasks are complete, distribute remaining assets to heirs according to SC intestate succession laws.
  • Filing Court Documents: Submitting required documents to the Greenville County Probate Court (inventories, accountings, final reports).

Greenville County Probate Court Procedures and Timelines

The probate process in Greenville County generally follows state procedures but involves specific local forms and filing requirements. The timeline can vary significantly, often taking six months to a year for straightforward cases, but potentially two years or longer for complex estates with disputes or creditor issues.

Understanding Small Estate Affidavits in South Carolina

For very small estates, South Carolina offers a simplified process. If the probate estate’s value (less liens and encumbrances) does not exceed $25,000 and does not include real estate, eligible successors may use a Small Estate Affidavit to collect assets, potentially avoiding formal probate.

Probate ensures legal transfer of assets but involves court oversight, specific duties for the Personal Representative, and varying timelines.

Potential Complications and Challenges When Dying Intestate

While South Carolina’s intestacy laws provide a framework, dying without a will often leads to complications and challenges that can cause stress, delays, and unintended consequences for surviving family members.

Family Disputes and Conflicts Over Inheritance

The absence of clear instructions in a will is a common catalyst for disputes among heirs. Disagreements can arise over:

  • Who should serve as the Personal Representative.
  • The valuation of assets.
  • Whether certain property should be sold.
  • Perceived unfairness in the statutory distribution, especially in blended families or where relationships were strained.

These conflicts can lead to costly probate litigation and damage family relationships permanently.

Appointing Guardians for Minor Children

One of the most significant oversights in intestacy is the lack of designated guardians for minor children. If both parents pass away without a will naming guardians, the Greenville County Probate Court must appoint someone. While the court prioritizes the children’s best interests, the appointed guardian may not be the person the parents would have chosen, leading to potential instability and distress for the children.

Probate Delays Caused by Complex Assets or Disputes

Intestate estates involving complex assets like businesses, extensive real estate holdings, or valuable collections often face significant delays. Valuing these assets, managing them during probate, and deciding on their distribution can be time-consuming. Furthermore, any disputes among heirs or challenges from creditors will inevitably prolong the probate process, sometimes for years.

Issues with Out-of-State Property or Missing Heirs

Complications multiply if the decedent owned real estate in another state (requiring ancillary probate in that jurisdiction) or if potential heirs are difficult to locate. Identifying and notifying all legal heirs, especially distant relatives, can be a lengthy and expensive process, delaying the final settlement of the estate.

Intestacy can breed conflict, uncertainty for minors, and significant delays, especially with complex assets or family situations.

Financial and Legal Implications of Intestacy in Greenville County

Dying without a will carries significant financial and legal consequences beyond just the distribution of assets. Understanding these implications is important for families navigating the aftermath.

Settling Estate Debts and Liabilities

Under South Carolina law, the decedent’s debts must be paid before any assets can be distributed to heirs. The Personal Representative is responsible for identifying creditors, validating claims, and using estate funds to pay outstanding bills (mortgages, loans, credit cards, medical bills, funeral expenses). If the estate lacks sufficient liquid assets, the Personal Representative may need to sell property to satisfy these obligations, which might conflict with the family’s wishes.

Estate Taxes and Intestate Succession in South Carolina

South Carolina currently does not impose a state-level estate tax or inheritance tax. However, very large estates may still be subject to federal estate taxes. The Personal Representative must determine if the estate exceeds the federal exemption threshold and file necessary tax returns. Income generated by estate assets during probate may also be subject to income tax.

Wrongful Death Claims in Intestate Estates

If the decedent’s death was caused by the negligence or wrongful act of another party, the Personal Representative may have grounds to file a wrongful death lawsuit on behalf of the estate and eligible beneficiaries. Any settlement or judgment obtained becomes part of the estate, subject to creditor claims and distribution rules, though specific statutes govern how wrongful death proceeds are allocated.

Understanding Non-Probate Assets vs. Probate Assets

It’s important to recognize that not all assets are controlled by intestacy laws or the probate process. Non-probate assets pass directly to a named beneficiary or co-owner outside of court supervision. Common examples include:

  • Life insurance policies with designated beneficiaries.
  • Retirement accounts (e.g., 401(k)s, IRAs) with designated beneficiaries.
  • Bank accounts or property held in joint tenancy with right of survivorship.
  • Assets held in a living trust.

These assets bypass probate, regardless of whether a will exists. Identifying which assets are probate vs. non-probate is a key early step.

How Estate Planning Prevents Intestacy and Protects Your Wishes

The challenges and potential heartaches associated with dying intestate are largely preventable through proactive estate planning. Creating even a basic estate plan ensures your wishes are known and legally binding, providing peace of mind for you and your loved ones.

The Power of a Last Will and Testament

A Last Will and Testament is the cornerstone of most estate plans. This legal document allows you to:

  • Specify Beneficiaries: Clearly state who inherits your assets and in what proportions, overriding intestacy rules.
  • Nominate an Executor: Choose a trusted person to manage your estate.
  • Appoint Guardians: Designate guardians for your minor children.
  • Include Specific Bequests: Leave particular items to specific individuals.
  • Create Testamentary Trusts: Establish trusts within your will for specific purposes.

Using Trusts to Avoid Probate and Control Asset Distribution

Living trusts (revocable or irrevocable) offer additional benefits, including potentially avoiding the probate process altogether for assets held within the trust. Trusts can provide privacy, continuity of asset management, detailed control over distributions, and sometimes asset protection.

Benefits of Proactive Estate Planning in Greenville, SC

Taking the time to create an estate plan offers numerous advantages:

  • Ensures your assets go to the people and causes you choose.
  • Minimizes potential family conflicts.
  • Reduces the time, cost, and stress of probate.
  • Provides for the care of minor children.
  • Allows planning for potential incapacity (Powers of Attorney, Health Care Directives).
  • Offers peace of mind.

Working with an experienced Greenville estate planning attorney helps create a comprehensive plan tailored to your needs.

Experienced Guidance for Intestate Probate in Greenville County

Dealing with the death of a loved one is never easy, and navigating the complexities of an intestate estate in Greenville County can add significant stress. Whether you are facing the probate process without a will or wish to proactively plan to protect your own family from intestacy, having knowledgeable legal support is invaluable.

At DeBruin Law Firm, we understand the intricacies of South Carolina probate law and the specific procedures of the Greenville County Probate Court. We provide compassionate and skilled guidance to families managing intestate estates, helping personal representatives fulfill their duties efficiently and ensuring assets are distributed correctly. We also assist individuals and families in creating comprehensive estate plans, including wills and trusts, to prevent the uncertainties of intestacy.

If you need assistance with an intestate estate or want to create an estate plan to secure your legacy, contact DeBruin Law Firm today. Call us at (864) 982-5930 or reach out through our online form to schedule a consultation. Let us help you navigate these important legal matters with confidence and care.

Navigating Probate When the Executor Lives Outside South Carolina

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Being asked to manage a loved one’s final affairs is a significant responsibility, often undertaken during a time of grief. When that responsibility involves handling a South Carolina estate, specifically in the Greenville area, while you live hundreds or even thousands of miles away, the complexities can feel overwhelming. Suddenly, you’re not just dealing with loss, but also with unfamiliar state laws, logistical hurdles, and the challenge of managing assets from afar.

Imagine receiving the call: you’ve been named the Personal Representative (often called an executor) for a relative’s estate in Greenville County. You live in California. How do you secure their home in Simpsonville? How do you access their bank account in Mauldin? What are the specific rules of the Greenville County Probate Court you need to follow? These are common, pressing concerns for non-resident executors.

The process of settling an estate, known as probate, involves identifying assets, paying debts and taxes, and distributing the remaining property to the rightful heirs or beneficiaries. It requires careful attention to detail and adherence to legal procedures. Adding distance to this equation introduces unique challenges, from practical difficulties in managing property to navigating South Carolina’s specific legal requirements for those serving from outside the state.

Can Someone Living Outside South Carolina Serve as Personal Representative?

A common first question is whether South Carolina law even permits someone living out of state to take on this role. The good news is, yes, South Carolina generally allows non-residents to serve as Personal Representatives for estates within the state. The South Carolina Probate Code, specifically Section 62-3-203, outlines the priority and qualifications for appointment, and it doesn’t automatically disqualify someone based solely on their residency outside the state.

Whether you were named as Executor in a will or might be appointed as an Administrator by the court (if there’s no will or the named executor cannot serve), the residency rules apply similarly. You must still meet the basic qualifications applicable to any Personal Representative in South Carolina:

  • Be at least 18 years old.
  • Be of sound mind (not legally incapacitated).

Unlike some states, South Carolina doesn’t automatically bar individuals with felony convictions from serving. However, the probate court, particularly in formal proceedings, can find someone “unsuitable” to serve. If concerns arise about a nominated PR’s fitness, the Greenville County Probate Court could hold a hearing to determine suitability.

While being an out-of-state resident isn’t an automatic disqualifier, South Carolina law does impose specific requirements to ensure the court can maintain oversight and that legal processes can be handled efficiently, even with a geographically distant executor. These often involve appointing a local point of contact and potentially securing a bond.

The Core Duties of a Personal Representative: Amplified by Distance

Serving as a Personal Representative carries significant fiduciary duties – legal obligations to act in the best interests of the estate and its beneficiaries. When you live outside Greenville, fulfilling these duties requires extra planning and effort.

Key responsibilities include:

  • Identifying and Gathering Assets: This means locating and taking control of everything the decedent owned in South Carolina – bank accounts in Greenville, real estate in Taylors or Greer, vehicles, investments, personal belongings. Living elsewhere makes physically inspecting property, accessing safe deposit boxes, or dealing with local banks much harder.
  • Notifying Interested Parties: You must formally notify all heirs, beneficiaries named in the will, and known or potential creditors about the estate administration. This involves specific legal notices and deadlines.
  • Paying Debts and Expenses: Valid debts of the decedent, funeral costs, taxes (income, potentially estate), and the expenses of administering the estate must be paid from estate assets before any distributions are made. Managing this from afar requires careful record-keeping and potentially local assistance.
  • Managing Estate Property: If the estate includes real estate in Greenville County, you’re responsible for its upkeep, insurance, property taxes, and potentially its sale. Overseeing maintenance, repairs, or preparing a house for sale from another state presents obvious logistical challenges.
  • Filing Court Documents and Tax Returns: Probate involves submitting various forms and reports to the Greenville County Probate Court on schedule. Final income tax returns for the decedent and potentially income tax returns for the estate itself must also be filed.
  • Distributing Remaining Assets: Once debts and expenses are paid, you distribute the remaining assets to the beneficiaries according to the will or, if no will exists, South Carolina’s intestacy laws (laws determining inheritance order).

The Non-Resident Reality

Each of these tasks is complicated by distance. Simple actions like getting mail forwarded, meeting with a local Greenville real estate agent, or appearing for a court hearing require significant coordination. Time zone differences can hinder communication, and the need for travel adds expense and time commitment to an already demanding role.

South Carolina’s Specific Rules for Out-of-State Executors

To address the challenges of distance and ensure accountability, South Carolina law includes specific provisions for non-resident Personal Representatives. These are designed to protect the interests of beneficiaries and creditors and ensure the local probate court, like the one in Greenville County, can effectively oversee the process.

Appointment of a Resident Agent for Service

A primary requirement is that a non-resident Personal Representative must typically appoint someone who resides in South Carolina to act as their agent. This individual, often the estate’s local attorney, is designated to receive official legal documents (like lawsuits or court notices) on behalf of the out-of-state PR. This is sometimes referred to as appointing a “Registered Agent” or consenting to the jurisdiction of the South Carolina courts. This ensures that legal papers can be properly served and that the Greenville County Probate Court maintains authority over the estate administration, regardless of where the PR lives. Failure to appoint a resident agent can hinder or prevent your appointment.

Potential Requirement for a Probate Bond

A probate bond (also called a fiduciary bond or surety bond) acts like an insurance policy for the estate. It protects beneficiaries and creditors against potential mismanagement or fraud by the Personal Representative. While a will might state that no bond is required, South Carolina law often gives the probate court the discretion to require a bond from a non-resident PR even if the will waives it. This is more likely if the PR lives outside the state. The reasoning is that it provides an extra layer of security when the person managing the assets is not local. The amount of the bond is typically based on the estimated value of the estate’s personal property and anticipated income. The PR must pay a premium for this bond, which is considered an administrative expense of the estate.

Potential Delay in Appointment (Informal Probate)

South Carolina Code Section 62-3-307(a) notes a specific consideration for non-resident decedents in informal probate proceedings. If the decedent was a non-resident (meaning SC probate is likely ancillary or secondary), the court might delay appointing a PR for 30 days after death unless certain conditions are met (like the applicant being the PR appointed in the decedent’s home state). While this section primarily addresses non-resident decedents, it highlights the court’s careful approach when non-residency is involved. Always consult with the Greenville County Probate Court or local counsel regarding specific timelines.

Practical Strategies for Managing a Greenville Estate Remotely

While serving as an out-of-state Personal Representative for a Greenville County estate presents hurdles, effective strategies and the right support can make the process manageable.

  • Hire Local Legal Counsel Immediately: Engaging a qualified probate attorney based in Greenville is almost always essential. They understand South Carolina law, know the specific procedures of the Greenville County Probate Court, can act as your required resident agent, handle local filings efficiently, and provide invaluable guidance throughout the process.
  • Leverage Technology: Modern tools can bridge the distance. Use email for routine communication, video conferencing (like Zoom or Teams) for meetings with your attorney or beneficiaries, and secure cloud storage or document portals for sharing important papers. Check if the Greenville County Probate Court offers e-filing options for certain documents.
  • Establish Clear Communication: Maintain open and regular communication with beneficiaries, keeping them informed about the process and progress. Also, establish a clear communication channel with your local attorney and any other professionals involved (accountants, real estate agents).
  • Get Organized: Meticulous record-keeping is vital. Keep detailed files of all communications, transactions, assets, debts, and deadlines. Create checklists based on your attorney’s advice and the requirements of the Greenville County Probate Court.
  • Plan for Necessary Travel: While technology helps, anticipate that some trips to Greenville may be unavoidable. This could be for initial tasks like securing property and inventorying assets, attending significant court hearings (though some may allow remote appearance), or finalizing the sale of real estate. Budget for the time and expense involved.
  • Delegate Practical Tasks: You don’t have to handle every hands-on task yourself. Consider hiring local help where appropriate:
    • Property Managers: If the estate includes rental property or real estate that needs ongoing maintenance before sale.
    • Real Estate Agents: To handle the listing, showing, and sale of estate property in the Greenville market.
    • Appraisers: To value real estate, vehicles, or valuable personal property.
    • Accountants: To assist with final tax returns and estate accounting.
  • Secure and Manage Assets: Work with your attorney to gain access to and secure South Carolina bank accounts, consolidating them into a new estate account (with an Employer Identification Number – EIN) that you can manage. Ensure estate property is properly insured and maintained.

By combining local professional help with technology and careful organization, you can effectively manage your responsibilities from afar.

The Role of a Greenville Probate Attorney

For an out-of-state Personal Representative handling a South Carolina estate, attempting to navigate the process alone is often impractical and risky. Hiring an experienced probate attorney located in Greenville County is not just helpful – it’s frequently a necessity for smooth and compliant estate administration.

A local attorney provides critical support by:

  • Navigating Local Rules: They possess in-depth knowledge of the South Carolina Probate Code and, importantly, the specific rules, procedures, and preferences of the Greenville County Probate Court.
  • Serving as Resident Agent: Your Greenville attorney can fulfill the legal requirement of acting as your resident agent for service of process, ensuring legal notices are properly received and addressed.
  • Handling Court Filings: They can efficiently prepare and file all necessary documents with the Greenville County Probate Court, ensuring compliance with deadlines and local formatting requirements.
  • Communicating with the Court: The attorney acts as your local liaison with the court staff, judges, and clerks, streamlining communication and resolving issues quickly.
  • Advising on SC Law: They provide tailored advice on South Carolina-specific laws regarding creditor claims, property distribution, potential tax implications, and other legal nuances.
  • Facilitating Local Tasks: They can connect you with reputable local appraisers, real estate agents, accountants, or property managers in the Greenville area if needed.
  • Problem Solving: Should complications arise, such as disputes among beneficiaries or challenges from creditors, your local attorney is positioned to represent the estate’s interests effectively in South Carolina.

Choosing an attorney familiar with the Greenville County probate system provides peace of mind and significantly reduces the burden and potential pitfalls of managing an estate from a distance.

Work with Our Seasoned Greenville, SC Probate Attorneys

Administering a loved one’s estate from another state is a complex undertaking, but it doesn’t have to be overwhelming. Understanding South Carolina’s requirements for non-resident Personal Representatives, employing practical management strategies, and securing experienced local legal counsel are key steps toward fulfilling your duties effectively and respectfully.

If you live outside South Carolina and have been named Personal Representative for an estate in Greenville County or the surrounding Upstate area, navigating the probate process requires knowledgeable local guidance. The potential need for a bond, the requirement to appoint a resident agent, and the practicalities of managing assets from afar all highlight the value of experienced support.

At DeBruin Law Firm, we frequently assist out-of-state Personal Representatives in managing South Carolina estates. We understand the unique challenges you face and can provide the comprehensive legal support needed to navigate the Greenville County Probate Court system efficiently and effectively. We can serve as the required resident agent, guide you through each step, handle court filings, and help coordinate with local resources as needed, allowing you to manage your responsibilities with confidence, even from a distance.

Contact DeBruin Law Firm today to discuss how we can assist you in fulfilling your role as a non-resident Personal Representative for a South Carolina estate. Call us at (864) 982-5930 or reach out online to schedule a consultation.

Contesting a Will in Greenville County Probate Court: Grounds and Process

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Challenging the validity of a will is a significant legal undertaking, often arising during emotionally charged times. In Greenville County, South Carolina, such contests are handled by the Probate Court. Successfully navigating this process requires a thorough understanding of who has the right to contest, the legally recognized grounds for a challenge, the strict procedural requirements, and the nature of evidence needed to support a claim.

Who Has the Right to Contest a Will? Establishing Legal Standing

Not just anyone can challenge a will. The ability to contest a will in Greenville County Probate Court hinges on possessing “legal standing.” This means an individual must have a direct and recognized interest in the estate that could be financially or legally affected by the will’s admission to probate or its invalidation.

Definition of Legal Standing and “Interested Persons”

Legal standing is the threshold requirement for initiating a will contest. The court will only hear challenges from “interested persons”—individuals who have a tangible stake in the estate’s distribution and whose rights or financial interests would be impacted by the will’s provisions. This typically includes:

  1. Heirs-at-Law: These are individuals who would inherit from the decedent’s estate under South Carolina’s intestacy laws if the will were declared invalid (e.g., surviving spouse, children, or other close relatives as defined by statute).
  2. Beneficiaries in the Current Will: Those named to receive assets or property under the terms of the will being offered for probate.
  3. Beneficiaries in a Prior Valid Will: Individuals named as beneficiaries in a previous, potentially valid will of the decedent, whose inheritance would be reinstated if the current will is invalidated and the prior will is proven.
  4. Creditors (in some circumstances): While less common in will contests, creditors with a valid claim against the estate might be considered interested persons if the will’s provisions could affect their ability to recover debts.

The Greenville Probate Court closely scrutinizes a petitioner’s claimed interest to ensure that only parties with a legitimate connection to the estate engage in litigation, thereby maintaining judicial efficiency and fairness. Without establishing this standing, a petition to contest a will is likely to be dismissed.

Valid Grounds for Contesting a Will in South Carolina

Even if a will appears properly drafted on its face, South Carolina law permits challenges based on specific legal grounds that question its fundamental validity. These grounds focus on the testator’s state of mind, the circumstances surrounding the will’s creation and signing, or the authenticity of the document itself.

Lack of Testamentary Capacity

A cornerstone of a valid will is that the testator (the person making the will) possessed “testamentary capacity” at the moment the will was executed. This means the testator must have understood:

  1. The Nature of the Act: They knew they were signing a will that would distribute their property after death.
  2. The Extent of Their Property: They had a general understanding of the assets they owned.
  3. The Natural Objects of Their Bounty: They recognized the family members or other individuals who would typically be expected to inherit from them (e.g., spouse, children).
  4. The Plan of Distribution: They understood how the will would distribute their property.

A contest based on lack of testamentary capacity alleges that, due to factors like advanced age, dementia, mental illness, delusion, or the influence of medication or substances, the testator did not meet this standard of mental competence when signing the will. Evidence often includes medical records, testimony from physicians or caregivers, and observations from individuals who interacted with the testator around the time of execution.

Undue Influence

Undue influence occurs when a person in a position of trust or power exerts such significant improper pressure on a testator that it overpowers their free will, resulting in a will that reflects the influencer’s desires rather than the testator’s true intentions. This is more than mere persuasion or advice; it involves coercion, manipulation, or exploitation that compromises the testator’s independent judgment.

Key elements often considered in undue influence claims include:

  1. Susceptibility of the Testator: The testator was vulnerable due to age, illness, cognitive decline, emotional distress, or dependency.
  2. Opportunity to Exert Influence: The alleged influencer had the chance to exert pressure.
  3. Disposition to Exert Undue Influence: The alleged influencer had a motive or inclination to exert such influence.
  4. The Resulting Will Appears to be the Product of Influence: The terms of the will seem unnatural or favor the alleged influencer in a way that is not otherwise explainable.

Types and Tactics of Undue Influence:

  • Coercive Tactics: This can involve threats, intimidation, isolation of the testator from other family members or advisors, or persistent pressure that deprives the testator of free choice.
  • Exploiting Vulnerable Testators: Taking advantage of a testator’s mental or physical weakness, emotional distress, or dependency to gain an unfair benefit in the will.
  • Abuse of Confidential Relationships: A confidential relationship exists where one party places significant trust and confidence in another (e.g., caregiver-patient, attorney-client, guardian-ward, or even dominant family member-subservient family member). If the person in the trusted position benefits substantially under the will, a presumption of undue influence may arise, shifting the burden to them to prove the will’s fairness and the testator’s voluntary act.
  • Fraud in the Inducement (related to influence): Deceiving the testator with false information about heirs or other relevant matters, causing them to alter their will based on these misrepresentations.

Proving undue influence can be complex, often relying on circumstantial evidence demonstrating a pattern of behavior and the testator’s vulnerability.

Improper Execution of the Will

South Carolina law dictates specific formalities for the valid execution of a will. Failure to adhere strictly to these requirements can render the will invalid, regardless of the testator’s intent or capacity. Key execution requirements under the South Carolina Code include:

  1. In Writing: The will must be written.
  2. Signed by the Testator: The testator must sign the will, or another person can sign the testator’s name in the testator’s presence and by their direction.
  3. Witnessed by Two Individuals: At least two credible individuals must witness either the testator’s signing of the will or the testator’s acknowledgment of their signature or of the will itself.
  4. Witnesses Sign in Testator’s Presence: Both witnesses must sign the will in the presence of the testator.

Common issues leading to invalidity due to improper execution include:

  • Lack of the required number of witness signatures.
  • Witnesses not being present simultaneously when the testator signed or acknowledged the will.
  • Witnesses not signing in the testator’s presence.
  • Use of “interested witnesses” (beneficiaries under the will), which, while not automatically invalidating the will in South Carolina, can raise concerns and complications, especially if their testimony is needed to prove the will.

Strict compliance with these statutory formalities is crucial to prevent challenges on technical defects and ensure the will is recognized by the probate court.

Fraud

Fraud in the context of wills involves deliberate deception that misleads the testator and directly affects the will’s provisions. There are two primary types:

  • Fraud in the Inducement: The testator is intentionally misled by false information (e.g., false statements about an heir’s character or needs) which causes them to make, change, or revoke a will or a specific provision based on this deceit. The testator understands they are signing a will, but their dispositive decisions are based on misinformation.
  • Fraud in the Execution: The testator is tricked into signing a document that they do not realize is a will, or they believe the will contains different terms than it actually does. For example, documents might be swapped without their knowledge. Here, the deception relates to the nature of the document itself or its contents.

Proving fraud requires clear evidence of the intentional misrepresentation, the testator’s reliance on it, and that the will’s provisions were a direct result of this deception.

Forgery

Forgery is a straightforward ground: it alleges that the will, or a critical part of it (such as the testator’s signature or a witness’s signature), is not genuine but was falsely created or altered. This attacks the authenticity of the document itself. Forgery claims often require:

  • Handwriting Expert Analysis: Comparison of signatures on the will with known genuine samples of the testator’s or witnesses’ handwriting.
  • Witness Testimony: Individuals familiar with the testator’s signature or the circumstances surrounding the alleged signing.

If forgery is proven, the will is typically voided entirely.

Duress

Duress involves coercion where the testator is forced to execute or alter a will against their free will through unlawful threats or actual physical force. Unlike undue influence, which can be subtle and psychological, duress typically involves more overt acts of compulsion that leave the testator with no reasonable alternative but to comply.

  • Distinguishing Duress from Undue Influence: While both undermine the testator’s free will, duress centers on overt threats, intimidation, or force, creating a situation where consent is not voluntary. Undue influence often involves a more insidious manipulation, exploiting trust or vulnerability.
  • Proving Duress: Evidence must demonstrate a clear link between the coercive acts and the testator’s signing of the will, showing that the testator acted under unlawful pressure that negated their free will. The standard of proof is typically “clear and convincing evidence.”

Existence of a Later Valid Will (Revocation)

If a will is presented for probate, but a later, validly executed will or codicil (an amendment to a will) is discovered, the later document generally revokes the prior one, either explicitly or by inconsistency. The contest, in this case, involves proving the validity of the subsequent testamentary document.

The Will Contest Process in Greenville County Probate Court

Contesting a will is a formal legal proceeding governed by the South Carolina Probate Code and the local rules of the Greenville County Probate Court.

Overview of the Legal Process

The process generally begins with the filing of a petition by an interested person challenging the will’s validity after it has been offered for probate. This initiates a lawsuit within the probate framework. Key stages include:

  1. Filing a Petition (Summons and Complaint): The contestant files a formal legal document outlining their identity, interest in the estate, the grounds for the contest, and the relief sought (e.g., that the will be declared invalid).
  2. Service of Process: All interested parties, including the personal representative (executor) named in the will, beneficiaries, and heirs-at-law, must be formally served with the legal documents.
  3. Response/Answer: The proponent of the will (often the personal representative) and other interested parties will file a response to the allegations.
  4. Discovery: This is a critical phase where parties gather evidence. Methods include:
    • Interrogatories: Written questions sent to opposing parties.
    • Requests for Production: Demands for documents (e.g., medical records, financial statements, prior wills, emails).
    • Depositions: Sworn out-of-court testimony from parties and witnesses.
    • Subpoenas: Used to obtain documents or testimony from third parties.
  5. Motion Practice: Parties may file motions with the court to resolve certain issues before trial (e.g., motion to dismiss, motion for summary judgment).
  6. Mediation/Settlement Negotiations: The court may encourage or require parties to attempt to resolve the dispute through mediation.
  7. Trial: If the case is not settled, it proceeds to a trial where evidence is presented, witnesses testify, and legal arguments are made before a probate judge.
  8. Ruling/Judgment: The judge issues a decision on the validity of the will.
  9. Appeals: Parties dissatisfied with the probate court’s ruling may have the right to appeal.

Critical Timing: The Statute of Limitations

South Carolina law imposes strict deadlines for contesting a will. Generally, a formal will contest must be filed within eight months after the date of the informal probate of the will in common form, or, if formal testacy proceedings are initiated, then within the later of eight months from the informal probate or 30 days from the formal testacy hearing. There are some exceptions, such as for minors or incapacitated individuals, or in cases of fraud that could not have reasonably been discovered earlier.

The Importance of Prompt Legal Action

Missing these deadlines can permanently bar a claim, regardless of its merit. Prompt action is very important to:

  • Preserve legal rights.
  • Allow sufficient time for thorough investigation and evidence gathering.
  • Secure witness cooperation while memories are fresh.
  • Avoid procedural hurdles.

Evidence, Proof, and Standard of Proof

The success of a will contest hinges on the quality and presentation of evidence.

The Burden of Proof

In a will contest, the contestant (the person challenging the will) generally bears the burden of proof. This means they must produce sufficient evidence to convince the court that the will is invalid based on the grounds alleged. The proponent of the will (usually the personal representative) will defend its validity. However, in certain situations, such as when a presumption of undue influence arises due to a confidential relationship and suspicious circumstances, the burden may shift to the proponent to prove the will was not the product of undue influence.

Types of Evidence Commonly Used in Will Contests

Evidence can take many forms, depending on the grounds for the contest:

  • Testimony:
    • Fact Witnesses: Individuals who observed the testator’s mental state, interactions with the alleged influencer, or the circumstances of the will’s execution (e.g., family, friends, caregivers, attesting witnesses).
    • Expert Witnesses:
      • Medical Experts: Physicians or geriatric psychiatrists to opine on testamentary capacity, effects of medication, or cognitive decline.
      • Handwriting Experts (Forensic Document Examiners): To analyze signatures in forgery cases.
  • Documentary Evidence:
    • Medical Records: To establish physical or mental condition.
    • Financial Records: To show unusual transactions or control by an alleged influencer.
    • Prior Wills and Estate Planning Documents: To show changes in testamentary intent.
    • Correspondence: Letters, emails, or notes that may reveal the testator’s state of mind, relationships, or influence.
    • The Will Itself: For examination of signatures, witness attestations, and provisions.
  • Circumstantial Evidence: In cases like undue influence, direct evidence is rare. Courts often rely on a collection of facts and circumstances that, when viewed together, create an inference of wrongdoing.

Standard of Proof in South Carolina

For most grounds in a will contest, such as undue influence, fraud, or duress, South Carolina law typically requires the contestant to prove their case by “clear and convincing evidence.” This is a higher standard than the “preponderance of the evidence” standard used in most civil cases (which means “more likely than not”). Clear and convincing evidence means the proof must be highly and substantially more probable to be true than not, leaving the court with a firm belief or conviction in its factuality. For issues like improper execution or lack of testamentary capacity, the standard may sometimes be a preponderance of the evidence, but it’s crucial to confirm with legal counsel.

Potential Outcomes of Will Contests

A will contest can have several outcomes:

Possible Rulings by the Court:

  1. Will Upheld: The court finds the will to be valid, and it is admitted to probate. The estate is then distributed according to its terms.
  2. Will Invalidated: The court finds the will to be invalid on one or more grounds.
    • If the entire will is invalidated, the estate will be distributed according to the terms of a previously valid will, if one exists and can be proven.
    • If there is no prior valid will, the estate will be distributed according to South Carolina’s intestacy laws (as if the decedent died without any will).
  3. Partial Invalidity: In some rare cases, only a portion of the will might be invalidated (e.g., a specific bequest resulting from fraud or undue influence), while the remainder of the will is upheld.
  4. Dismissal: The case may be dismissed for lack of standing, failure to meet the statute of limitations, or if the contestant fails to present sufficient evidence.

Settlement and Mediation

Many will contests are resolved through settlement negotiations or mediation before reaching a trial. Mediation involves a neutral third-party mediator who helps the parties explore potential resolutions. Advantages include:

  • Cost and Time Savings: Avoids the expense and length of a full trial.
  • Confidentiality: Discussions are typically confidential.
  • Control: Parties retain control over the outcome, rather than having a judge decide.
  • Preservation of Relationships: Can be less adversarial than litigation, potentially helping to preserve family relationships.

A settlement agreement is a legally binding contract that dictates how the dispute is resolved and often how the estate will be distributed.

Involved in a Will Contest in Greenville, SC? Contact DeBruin Law Firm for Skilled Legal Guidance

Contesting a will in Greenville County Probate Court is a serious undertaking, demanding a comprehensive understanding of legal standing, valid grounds for challenge, intricate court procedures, and stringent evidentiary requirements. Success often depends on meticulous preparation, adherence to South Carolina probate law, and the guidance of experienced legal counsel.

If you need any kind of legal help with a will contest in Greenville County or any of the surrounding South Carolina communities, DeBruin Law Firm is here to help. Call us today at (864) 982-5930 or message us online to schedule a personalized consultation to discuss your case.

AI Still Makes Things Up: Why Professionals Must Remain the Experts

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Artificial intelligence is a powerful tool, a great staring point to starting a project or an article for social media, but we must remember that it isn’t infallible.  We should still check to see if the information it provides is reliable.

A recent legal research experience reminded me that diligence and human judgment remain essential in the age of AI.

I recently used artificial intelligence to assist with legal research. I was working on a matter involving South Carolina property law and asked the AI to identify case law about the possibility of changing ownership from Tenants in Common to Joint Tenants with Rights of Survivorship, post death of the parties, if the deed, when signed, was signed with a misunderstanding as to type of ownership. The AI returned what looked like a legitimate and useful citation: Durham v. Blackard, 255 S.C. 202, 177 S.E.2d 601 (1970).

It even provided a case summary: (This portion is from my conversation with the chatbot)

I took out the parts where I ask it nicely to perform a function.  My wife likes to make fun of me for saying please and thank you to the AI.  I tell myself, politeness doesn’t cost anything, but in reality, when the AI takes over the world and comes for us, I know it’s going after the rude ones first.

“Facts: Parties sought reformation of a deed due to mutual mistake.

Holding: Reformation was allowed only upon clear and convincing evidence that the deed failed to reflect the parties’ true intent.”

Unfortunately, the case didn’t exist. There is a Durham v. Blackard, but it’s a 1993 decision involving fraudulent conveyance under the Statute of Elizabeth. It has nothing to do with mutual mistake at the time of signing the deed.

I brought up the fake case and the made-up content to the AI and it gave me another case.   Creekmore v. Redick, 246 S.C. 423, 143 S.E.2d 251 (1965). The summary it produced sounded plausible and relevant, claiming the case dealt with a mistaken property description and supported deed reformation.

But once again, I could not locate any such case in South Carolina’s reported decisions. The case was simply fabricated, citation, summary, and all. Here is the AI’s response when I once again informed it that it made up a case.

“Apologies for the earlier citation errors. Upon further review, I found that the case Creekmore v. Redick does not exist in South Carolina case law. I regret any confusion caused by these inaccuracies.”

This experience underscores a reality that many professionals are beginning to discover: AI can still make things up. It will confidently produce answers that look right, sound authoritative, and might even contain accurate legal principles, but unless you already know the area well, it can be nearly impossible to spot where the technology fabricates.

This is particularly dangerous in a field like law, where the foundation of our work is truth, precedent, and precision.

Artificial intelligence can be a useful starting point for organizing thoughts, identifying issues, or framing arguments, but be cautious about trusting it to finish the job. It is not a substitute for subject matter expertise.

As professionals, we cannot blindly accept what AI gives us. We must remain vigilant, verify sources, and apply our judgment. We are the subject matter experts, not IT.

Safeguarding Your Estate Plan: Why Protecting Your Will Is Just as Important as Creating It

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When it comes to safeguarding critical estate planning and real estate documents, strong security is not just advisable — it’s essential. These documents represent your wishes, your assets, and your legal authority. If they go missing or fall into the wrong hands, it could unravel years of careful planning.

The Case of the Disappearing Will: A Cautionary Tale

A few years back, a South Carolina family’s probate process turned into a nightmare. After both parents passed away, their adult children began gathering important papers at the family home. What most of the family didn’t realize was that one of the children had been intentionally disinherited in a valid will that their parents had executed years earlier.

Within days of the funeral, that disinherited child quietly gained access to the home. Somewhere in the shuffle, the original will disappeared. When it came time to probate the estate, no one could locate it. And under South Carolina law, without a will, the estate would be distributed according to the state’s intestacy statutes — meaning all children, including the one the parents intended to disinherit, would inherit an equal share.

Though a photocopy of the will was eventually found, the legal battle to have it accepted by the probate court was lengthy, stressful, and costly. Without clear evidence that the will existed at the time of death or proof of what happened to it, the court presumed it had been revoked. Years of thoughtful estate planning were nearly undone by one missing document.

Legal Risk of a Missing Will in South Carolina

South Carolina law takes the safekeeping of estate planning documents seriously. If a person dies and no original will can be produced, the law presumes the testator intended to revoke it, even if copies exist. To overcome that presumption, surviving family members must prove the existence and validity of the lost will, as well as the circumstances surrounding its disappearance. This process is complicated, expensive, and can tear families apart.

It’s a situation that’s avoidable — but only if proper precautions are taken.

Best Practices for Safekeeping Your Estate Documents

To prevent this type of issue, it’s critical to store your original will in a secure, reliable, and accessible location. Here are two recommended options:

Safe Deposit Box at a Bank

This is one of the most secure places to store estate documents. Upon your passing, access to the box is typically limited to people you give access to, by court order or with proper legal authority, making it difficult for anyone to remove or destroy your will without leaving a trace.

Additionally, banks often inventory the contents of a safe deposit box when items are added and after a person’s death, providing valuable evidence that your will existed at the time of death — an important factor if a copy ever needs to be probated.

Best Practices:

  • Name a co-lessee (such as your executor) who can access the box without delay.
  • Store only original documents and maintain electronic backups elsewhere.
  • Inform trusted individuals about the location of the box and what it contains.

Fireproof, Waterproof Home Safe

If a bank isn’t an option, a high-quality home safe is the next best choice.

Advantages:

  • Offers immediate access and full control over the contents.
  • Provides solid protection from natural disasters.

Best Practices:

  • Invest in a safe rated for high temperatures and submersion.
  • Keep it bolted down to prevent theft.
  • Limit access and inform your executor where the safe is located and how to open it.

What to Avoid

While some people consider leaving original estate documents with their attorney, this can create problems if the attorney retires, moves, or passes away. In those situations, accessing the documents may require a court order, especially if they’re stored in a law office’s work safe. For that reason, it’s typically better to keep your will in a place you control or can manage through a trusted financial institution.

The Importance of Protecting Real Estate Documents

Real estate documents are just as important as estate planning documents, especially when property is a major part of your estate.

Documents to protect include:

  • Property deeds
  • Title abstracts
  • Mortgage paperwork
  • Sale contracts or leases

Losing these documents can delay sales, cause ownership disputes, or result in the loss of valuable information.

Legal Requirements in South Carolina

Under S.C. Code §40-57-135(D)(1), brokers-in-charge must retain transaction records for at least five years. Property owners should also maintain these documents for future legal needs or transactions.

Electronic and Hybrid Storage Options

Cloud Storage

  • Provides remote access and backup.
  • Requires strong encryption and password protection.
  • Scanned copies may not be acceptable for original-will requirements.

Encrypted USB Drives

  • Hardware-encrypted drives offer portable, offline security.
  • Best stored in a fireproof safe or bank box.

Hybrid Approach

For maximum security and redundancy, combine all storage options:

  • Keep original wills and deeds in a bank safety deposit box if possible, or in a highly secured fireproof, waterproof home safe.
  • Copies on encrypted USB drives at home.
  • Scanned copies in secure cloud storage.

Legal Access and Compliance at the Time of Death

Under S.C. Code §34-19-50, spouses, adult children, or named executors can access a decedent’s safety deposit box under specific conditions to retrieve wills or burial deeds. Ensuring your designees know this can prevent unnecessary delays or confusion.

Final Thoughts

Your estate plan isn’t complete until you’ve made sure it’s protected. The story of a disinherited heir turning an entire estate plan upside down is a sobering reminder that what happens to your documents after you’re gone can be just as impactful as what they say.

Take the time now to secure your will, real estate records, and other legal documents in safe, well-considered locations. It’s a small effort that can prevent enormous stress, confusion, and conflict for your loved ones down the road.

How De Bruin Law Firm Can Help

At De Bruin Law Firm, we understand how important it is to protect your legacy through secure, compliant estate and real estate planning. Whether you need help drafting a will or choosing the best storage strategy for your documents, our team is here to guide you.

Call us today at (864) 982-5930 or message us online to schedule a consultation and ensure you have your estate planning and real estate plans and documents in order, and that you have a solid plan for securely storing your most important documents.

Estate Planning And Victims Of Asbestos Exposure

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There are many reasons why someone may want to devise their estate plan. Perhaps they are wanting to protect assets and ensure that those they love receive a piece of their legacy that can be passed down to future generations. Or they may have just been diagnosed with an illness and want to get their affairs in order. There are limitless factors that can contribute to someone becoming sick. For instance, someone who is diagnosed with an asbestos-related condition later in life because of working with asbestos material may be motivated to solidify their end of life wishes through establishing a legally-binding documentation, like an estate plan. 

The initial signs of asbestos exposure typically involve the lungs. This is because asbestos mainly causes lung-related disease, but it can cause illness in other areas of the body too, such as the stomach, throat, and colon. The most common signs of exposure to asbestos are chest pain, cough, and shortness of breath. Additionally, pleural plaques may be a sign that someone sustained enough exposure to be vulnerable to other diseases, which may have developed before a lung cancer or mesothelioma diagnosis. Other symptoms related to asbestos exposure include:

  • Crackling sound when breathing
  • Wheezing
  • Dry cough
  • Pleural plaques
  • Pleural effusion
  • Respiratory complications
  • Loss of appetite
  • Clubbed fingers
  • Difficulty swallowing
  • Hoarseness
  • Hernia 
  • Bowel obstruction
  • Pelvic pain
  • Abdominal pain
  • Abdominal distention and swelling

It is estimated that 20% of people who have worked with asbestos are going to develop an asbestos-related illness. Those who have been heavily exposed receive an asbestos disease diagnosis at an even higher rate. There are many factors that can contribute to someone having an asbestos-related disease, such as how long they worked with the material and the concentration of the asbestos fibers inhaled. But most people who get sick from asbestos exposure had worked with it for their career. Employers have a duty to provide workers with sufficient protection so that they do not develop serious illness down the road. An employer may be liable through a personal injury lawsuit for how a former employee had suffered later in life due to asbestos exposure in the workplace.

As a D.C. asbestos lawyer at Cohen & Cohen, P.C. explains, if you or someone you care about was diagnosed with an asbestos caused mesothelioma or other condition, you may want to discuss your situation with a lawyer so that you don’t endure financial hardship in addition to dealing with the illness itself. Depending on the cause or your mesothelioma, you may be able to file a personal injury lawsuit. Regardless of the cause, an estate planning lawyer can help you to get your affairs in order so that you can have at least that peace of mind. 

If you have found yourself in an awful situation of dealing with an asbestos-related diagnosis, it may be scary to imagine a time when you are not here with loved ones, but having your affairs in order can provide some relief while you continue to take care of yourself. Having an estate plan in place can give you that peace of mind that victims of serious illness do not expect.

10 Common Estate Planning Mistakes and How to Avoid Them

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Every year more than 3.3 million people die in the United States. The death of a loved one can be an incredibly difficult time for their friends and family.

However, a lot of people are surprised by the amount of practical admin involved when a loved one dies. Making a plan for your estate before your death can help to ease this burden for your loved ones. It will also ensure that you can provide them with financial stability after your death.

That said, common estate planning mistakes can make things much more complicated for your loved ones after you die. So it is important to avoid these when creating an estate plan.

Not sure which mistakes to look out for? Then you’re in the right place. Read on to find out ten common estate planning mistakes and how to avoid them.

1. Forgetting to Make an Estate Plan

Only 33% of people in America have a comprehensive estate plan in place for when they die. So if you haven’t put your plan together yet, you’re in good company! Now is a good time to change this.

An estate plan lets you control what happens to your belongings after you die. This might include:

  • Leaving the family home to your spouse
  • Creating financial trusts for your children
  • Making charitable donations
  • Outlining who will be in charge of your business after you die

If you do not have an estate plan in place, this leaves room for a lot of legal disputes after your death. While family (and particularly spouses) usually take legal priority, others can dispute this. This could make life very hard and uncertain for the loved ones that you leave behind.

Fortunately, you can stop this from happening – even a basic estate plan is better than no plan at all. Your loved ones will be able to use this as evidence of your wishes. So make sure you get this down in writing and have it witnessed by a legal professional.

2. Not Updating Your Estate Plans Regularly

A lot of people make their first will when they take out life insurance, start making money, or have their first child. However, life can change a lot so it is important to update your will regularly.

For example, you may:

  • Have acquired different types of assets, such as a business or life insurance policy, that you need to account for in your will
  • Have got divorced and want to adjust the role of your ex in your will
  • Want to add or change beneficiaries
  • Decide to include contingent beneficiaries as you get older

Reviewing and updating your will ensures that it reflects your most recent wishes and covers all of your assets.

Loved ones, such as your children or spouse, are allowed to dispute an estate plan after your death. This is easier to do if your estate plan is very out-of-date. The person disputing your will could, for example, say that it doesn’t reflect your most recent wishes.

Updating your estate plan will make it harder for people to do this. This can make the administration of your estate much easier for your loved ones.

3. Not Giving Someone Power of Attorney

When making an estate plan, a lot of people focus on what will happen to their assets after they die. However, this means that they overlook other important things, such as giving someone power of attorney.

Power of attorney legally authorizes a person (or several people) to act on your behalf if you become incapacitated. For example, this may happen if you have an accident that leaves you in a coma or unable to communicate.

You can give someone power of attorney in two areas: financial decisions and health care decisions.

Without power of attorney, your loved ones may struggle to act on your behalf. They may also not legally be allowed to make decisions about your finances and healthcare.

Giving one or more people the power of attorney makes it easier for them to manage your estate. This also allows you to pick who you want to represent your interests if you are incapacitated.

4. Forgetting to Factor in Retirement Costs

Most people will make an estate plan while they are working but your financial situation can change a lot after retirement. Failing to factor in your retirement costs could leave your loved ones with a lot less financial support after your death.

Fortunately, it is easy to avoid this common estate planning mistake with some basic planning. You will need to look at:

  • Nursing home costs
  • The cost of at-home care
  • How much you need to spend before you qualify for Medicare funding

This will help you make informed decisions about your spending during retirement. It can also help you figure out how much you need to save to qualify for Medicare without bankrupting your spouse.

5. Signing Over the Deed to Your Home

Good estate planning can save your loved ones money on inheritance taxes.

However, one of the biggest mistakes people make is signing over the deed to their home before they die. This might involve signing your home over to your spouse or your children, for example.

This is a bad idea for multiple reasons. Firstly, it means that you no longer have legal control of your own home while you are still alive. So if the new owner wants to kick you out and sell it, there is nothing you can do!

Giving your child or spouse the title of your home is also seen as a taxable gift. This means that you won’t save them any money by putting their name on the deed.

Instead, you should speak to your estate planning lawyer about tax-free ways to pass on your assets.

6. Choosing the Wrong Person to Handle Your Estate

When making an estate plan you will have to choose estate plan beneficiaries. These are the people who will inherit your assets.

However, you also need to appoint someone to be the executor of your estate. They will oversee the probate process.

A lot of people choose their spouse or a close relative to be the executor of their estate. This can be a big responsibility for someone who is also grieving. They will have to handle complex financial, legal, and tax proceedings.

An experienced estate lawyer will be able to help you choose the right executor for your estate. So it is a good idea to discuss this with them while you are creating an estate plan.

7. Not Making Non-Taxable Gifts Before Your Death

If you have a lot of assets to pass on to your loved ones this can become very expensive for them. They will have to pay inheritance tax on the majority of your assets.

You can save them money by gifting certain assets before your death. For example, you make an estate tax-free gift of up to $15,000 per year to your spouse. This can significantly ease the burden of inheritance tax for your loved ones when you do die.

8. Forgetting to Transfer Your Insurance Policy to a Life Insurance Trust

Speaking of inheritance tax, you can save your loved ones money by putting certain assets into trusts and retirement plans. Your life insurance policy is a significant asset and will be included in your estate taxes after your death.

However, you can transfer this to a life insurance trust. This makes the proceeds of your policy tax-free as they are not directly owned by you.

The trust will then pay out your policy to your loved ones. So they will still see the financial benefits of your life insurance policy.

9. Thinking That You Do Not Need to Make an Estate Plan

If you don’t have a lot of money in the bank you might think an estate plan is unnecessary. However, an estate plan isn’t just about your finances.

You can also use this to:

  • Appoint someone to make medical decisions on your behalf
  • Give a business partner power of attorney while you are out of the country
  • Name a guardian for your children

So, if you want to have control of who makes decisions on your behalf, it is a good idea to create an estate plan sooner rather than later.

10. Creating an Estate Plan Without Expert Help

Estate planning isn’t as simple as drawing up a will and naming beneficiaries. Probate is a complex legal process and having a thorough plan in place will make this smoother for your loved ones.

Because of this, it is a good idea to speak to an estate planning lawyer about your assets. They will teach you about:

  • Strategies for reducing inheritance tax
  • Different state inheritance laws
  • Proposed changes in tax law that could affect your will

They will also ensure that your estate plan is strong enough to counter legal challenges. So even if you already have a do-it-yourself plan in place, it is a good idea to review this with an experienced estate lawyer.

Get Help Avoiding These Common Estate Planning Mistakes Today

As you can see, drawing up an estate plan isn’t as simple as making a will. How you distribute your assets will have a big impact on how much tax your loved ones have to pay. So the more detailed your estate plan is, the easier life will be for your loved ones after your death.

Do you feel ready to put together your estate plan and want help avoiding common estate planning mistakes? Then get in touch with De Bruin today. Our experts in estate planning will be happy to help.

A Step-by-Step Guide on How to Make a Living Will

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What Is a Living Will?

Living wills are quite different from the typical wills you might think of. They have nothing to do with bequeathing assets or property. In fact, a living will is a medical document also known as an advance directive.

An advance directive allows a person to put their end-of-life wishes regarding medical care into a legally binding document. The purpose of a living will is to make sure a person gets the treatment they desire in the event they become incapacitated and cannot communicate their wishes.

How Do Living Wills Work?

Advance directives are common in every state. Individuals can fill out a form detailing their wishes, or they can work with a lawyer to draft their living will. It is up to the person how much detail they provide in the document.

Some of the more common directives include palliative care and extraordinary measures.

Palliative care refers to measures taken to decrease pain and suffering. Extraordinary measures can refer to something like resuscitation. Some people elect palliative care but reject extraordinary measures.

By putting these directives in their living will, a person can rest assured the doctors will have to follow these orders.

For a living will to be valid, it has to meet certain state requirements. It will likely need to be notarized, and often living wills require having a witness present.

You can revoke a living will at any time. It is yours to change and do with what you see fit.

As soon as you sign your living will, it can take effect. Or it can go into effect once the person can no longer communicate their wishes. Either way, medical caregivers3 will rely on your personal communication with them for as long as you are coherent.

Do I Need a Living Will?

Thinking about the end of our lives is awful. Still, every adult can benefit from having a living will. A living will is especially important for those living with a terminal illness.

If you are about to undergo major surgery, it’s also a good idea to have a living will in place.

If you become incapacitated and there is no living will, your doctors will ask your nearest living relatives (spouse, children, siblings, parents) to make medical decisions for you.

That’s a lot to ask of your family members while coping with the possibility of losing you. It can also cause rifts to develop between family members who disagree about the appropriate course of action.

If you haven’t talked to your family about your end-of-life wishes, they are in a trickier position because they don’t know what you would want.

Additionally, there are some states in which family members do not have complete authority to make decisions on your behalf without a living will.

In that case, your family may need to get a court order for certain medical actions. It’s also not uncommon in that situation for doctors to decide which family member to listen to. It can all get very complicated very quickly.

What Are the Benefits of a Living Will?

Now that you understand some of the risks involved in not having a living will let’s talk about the many benefits. We’ve narrowed it down to seven benefits for the sake of expediency, but rest assured, there are more.

Establish Power of Attorney

A medical power of attorney is a legally binding document that gives the responsibility and power of decision-making to whomever you decide to trust with your end-of-life health care decisions.

If you become incapacitated or too ill to advocate for yourself, your power of attorney will advocate on your behalf. Sometimes this person is called a healthcare agent or a healthcare proxy.

It’s essential that you choose a power of attorney you trust with your life since they will literally have your life in their hands.

Prevent Family Disputes

The reality is that family members don’t always agree. When you make a living will, you eliminate the chance of your relatives disagreeing over what kind of care you should receive.

Reduce Burden on Surviving Family Members

When you specify your desires, it makes it a lot easier for your surviving family members to cope with what’s happening. Knowing that you are getting the exact treatment you want will give them reassurance.

Without a living will, every choice your family members face will add to their grief and suffering. Additionally, medical treatments like long-term care can be incredibly costly. Making decisions ahead of time can minimize your cost of care and save your family from a financial burden.

Know Your Outcomes

There is no way to predict when you might become ill or incapacitated. Accidents happen, and diseases turn up without warning sometimes. When you have a living will, you don’t have to wonder what will happen.

Authorize Treatments

Lots of medical procedures require prior authorization from the person receiving the treatment. A living will gives you the opportunity to authorize treatments in advance just in case something happens.

Refuse Treatments

A living will also gives you the freedom to refuse treatments you don’t want. For example, if you aren’t comfortable with the idea of being on life support, you can refuse it in your living will.

Peace of Mind

Overall, having a living will gives you peace of mind. You and your family will feel better knowing everything is taken care of, and you will get the treatment you want when the time comes.

How To Make a Living Will: Step By Step

If the idea of writing a living will still sounds overwhelming, you can relax. We’ve broken it down into seven relatively simple steps for you to follow.

Decide Whether To Hire a Lawyer

An estate planning attorney who knows the laws in your state can help you create a thorough advance directive that covers all the bases.

Estate lawyers understand the living will format and requirements. They’ll make sure to ask the questions you might not think of on your own.

It’s also perfectly fine to make a living will on your own. There are several resources out there, including the National Hospice and Palliative Care Organization, which has a downloadable state-specific form you can fill out.

Know Your State’s Laws

Whether you hire a lawyer or write your living will on your own, it is crucial that you follow the requirements in your state. For residents of South Carolina, it is important to be familiar with the state’s Death With Dignity Act.

In most states, you must be at least 18 years old to create a living will. You also need to be of sound mind. Some states require witnesses and notarization.

Decide What You Want

It is your choice what to include in your living will. You can decide what kinds of treatment to authorize and what to refuse.

Most living wills express desires related to life-prolonging care, food and water, and palliative care.

It’s not easy to decide what kind of care you’ll want at the end of your life. It can be difficult to make decisions without taking into consideration the wishes of your surviving loved ones because it affects them too.

For more ideas, take a look at this complete guide on what to include in your living will.

Revise Your Living Will As Needed

What you put in your living will can change. You may have a different perspective as you grow older. It’s perfectly fine to change your advance directive if you choose.

Share Your Living Will

It’s a good idea to share your living will with select people. Your family, doctor, and health care proxy are good places to start.

Make Copies

Make a few copies of your living will, just to be safe. You should give a copy to your doctor and one to your health care proxy. Then store the original in a safe, secure place where your family can access it as needed.

What is a Simple Living Will in South Carolina?

Creating a simple living will in South Carolina is a thoughtful step to ensure your healthcare wishes are honored if you are unable to communicate them yourself. It’s a key part of what’s known as an advance directive, giving you control over future medical treatment decisions.

Understanding a Simple Living Will

A simple living will, often referred to in South Carolina as a “Declaration of a Desire for a Natural Death,” is a legal document. Its primary function is to state your preferences regarding medical treatment, particularly life-sustaining procedures, should you become terminally ill or be in a permanent vegetative state with no reasonable hope of recovery. It is distinct from a traditional will, which deals with the distribution of your property after death.

Purpose of a Simple Living Will

The main purpose of a living will is to provide clear guidance to your healthcare providers and loved ones about the medical care you wish to receive, or not receive, in end-of-life situations. This removes the burden of difficult decision-making from your family during an emotionally challenging time and ensures that your personal values and wishes about medical intervention are respected. It serves as your voice when you cannot speak for yourself.

Key Decisions Covered By a Simple Living Will in SC

A simple living will in South Carolina typically addresses your desires concerning the use of life-sustaining procedures. These can include decisions about:

  • Cardiopulmonary Resuscitation (CPR): Whether you wish to be resuscitated if your heart or breathing stops.
  • Mechanical Ventilation: Whether you want to be placed on a breathing machine.
  • Artificial Nutrition and Hydration: Whether you wish to receive food and water through tubes.
  • Other Life-Sustaining Treatments: This can encompass other medical interventions that would only prolong the dying process without a reasonable expectation of recovery.
  • Pain Management and Comfort Care: While focused on withholding life-sustaining measures, a living will can also indicate your desire for comfort care to alleviate pain.

It’s important to note that a living will in South Carolina becomes effective only when your attending physician and one other physician certify that you have a terminal condition or are in a permanent vegetative state and your death would occur without life-sustaining procedures.

Eligibility and Requirements for a  Simple Living Will in SC

To create a valid simple living will in South Carolina, you must meet certain requirements:

  • Age: You must be at least 18 years old.
  • Sound Mind: You must be of sound mind, meaning you understand the nature and effect of the document you are creating.
  • In Writing: The living will must be a written document. Oral statements are not legally binding.
  • Signature and Witnesses: You must sign the living will in the presence of two witnesses. Specific rules apply to who can be a witness; generally, they should not be individuals who would inherit from you, your attending physician or their employee, or anyone financially responsible for your medical care. At least one witness cannot be an employee of the healthcare facility where you are a patient.
  • Notarization: While not always strictly required for validity, having the living will notarized can make it “self-proving,” which can simplify the process of it being accepted.

Creating Your Simple Living Will in South Carolina

Creating a simple living will involves careful consideration of your values and preferences regarding end-of-life care. You can obtain standard forms provided by the state or utilize resources from healthcare providers or legal aid. Many people choose to consult with an attorney to ensure the document accurately reflects their wishes and meets all legal requirements in South Carolina. Once completed and properly witnessed and/or notarized, it is crucial to share copies with your healthcare providers, your designated healthcare agent (if you have a healthcare power of attorney), and trusted family members. Keep the original in a safe, accessible place. Periodically reviewing and updating your living will is also advisable to ensure it still aligns with your healthcare desires and personal circumstances.

Do You Need a Living Will in SC?

Right now, writing a living will might feel uncomfortable to think about. In the long-term, you’ll be glad you learned how to make a living will and got it done before too late.

You and your loved ones can rest easy knowing the tough decisions are already made, and you will get exactly the care you desire. Contact De Bruin Law Firm today to schedule a free consultation to discuss your advance directive.

What Is Estate Planning?

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Did you know that only 33% of Americans have a will or living trust? In fact, since the beginning of the pandemic, the number of 18 to 34-year-olds with estate plans increased by 50%.

Whether you’re 18 or 80, everyone needs an estate plan. No matter how many assets your own, estate planning protects your loved ones and is a powerful way to create a legacy.

But what is estate planning exactly? Keep reading to learn more about how an estate planning attorney can help you make plans for the future.

What Is Estate Planning?

Estate planning is simply the process of making a clear plan for your assets. A will or trust is a plan for the management or transfer of your estate after your death or incapacitation. This ensures that your affairs are handled the way you want.

A will is a legal document that provides instructions around an individual’s property. This also includes making a plan for all of your assets including:

  • House, land, or cars
  • Bank or retirement accounts
  • Stocks or investments
  • Jewelry or furniture
  • Digital assets (online and email accounts)
  • Digital property (virtual currency, reward points, domain names)

Estate planning is not just about your finances and property. It also encompasses decisions around guardianship, custody of minor children, and medical actions if you become incapacitated and can’t make your own decisions.

If you die without a will, state laws of descent and distribution will determine who receives your property. In South Carolina, this means that your estate is subject to the state’s inheritance laws or intestate succession laws. While this usually means that your property will go to your closest living relatives, it can also be a time-consuming and expensive process for your eventual heirs.

All in all, a will ensures that whatever happens next your interests are protected.

Key Steps for Creating a Will

Everyone over the age of 18 should invest in creating a plan. From social media accounts to land, everyone owns assets. An estate plan guarantees that everyone knows your wishes.

Planning a will also include naming an executor, choosing beneficiaries, and setting up funeral arrangements. This also encompasses planning for potential estate taxes. A properly prepared estate plan will lay out your wishes, prevent misunderstanding, and ensure everything is done in the most tax-advantaged manner.

While a lot of steps go into the planning process, there are a number of key steps in the process including:

  1. Taking an inventory of everything you own
  2. Determining what type of estate plan you need
  3. Choosing a guardian for yourself, children, or pets
  4. Establishing directives like Durable Power of Attorney and executor
  5. Naming beneficiaries for assets that don’t already have them designated
  6. Partnering with a highly reviewed estate planning lawyer
  7. Creating, signing, and storing your plan
  8. Updating your estate planning documents as needed over time

While estate planning can feel overwhelming, it can also be a straightforward process when working with the right partner. Consulting an estate planning attorney at the beginning of your planning journey can save you a lot of time in the long term.

Estate Planning Documents and Taxes

There are a number of documents that make up an estate plan. Each item works together to create a clear plan for your final wishes.

Common planning documents include:

  • Guardianship
  • Will
  • Living Trusts
  • Financial Power of Attorney
  • Durable Power of Attorney
  • Advance Healthcare Directive
  • HIPPA Authorization
  • Intestate Succession Plan

Taxes also play a significant role in the estate planning process. The goal is to leave as much as you can for your heirs. The estate planning process includes tools to pass assets while avoiding hefty taxes.

South Carolina does not have an inheritance, estate, or gift tax. At the same time, there are other state and federal laws a lawyer can help you navigate. For example, federal laws do apply to gifts over $16,000 in a single calendar year.

Strategies that protect assets like AB trusts, estate freezing, education funding strategies, and charitable contributions can considerably reduce state and federal taxes.

Appointing the Right Executor

An executor of a will is the person legally named to take responsibility for your wishes. The executor legally administers an estate. This includes following instructions in will documents, ensuring assets are distributed, and estimating the value of the estate as determined by the Internal Revenue Code.

The executor is also responsible for paying debts and taxes.

An executor can either be a family member, lawyer, or accountant over the age of 18. They also must have no prior felonies. Working closely with an estate planning attorney can help you avoid intricacies around co-executors, disputes with heirs, and personal liability exposure.

Common Mistakes to Avoid

It can be easy to put off estate planning because it can seem complicated, costly, and confusing. Additionally, low-cost estate planning strategies can have long-term negative consequences for you and your loved ones.

Because a will captures your future plans, it’s essential to find the right partner. A cautious attorney will help you avoid future misunderstandings, delays, and inaccuracies.

Common mistakes to avoid include:

  • Not regularly updating a plan over time
  • Not planning for potential disability or long-term care
  • Not thinking through the full implication of taxes
  • Not having liquid assets that can be converted into cash
  • Not putting children’s names on deeds to property
  • Not making gifts during your lifetime

Find an Estate Planning Lawyer

If you’ve wondered “what is estate planning” in the last year, you are not alone. Americans across the country are investing in estate planning services because it’s the only legal tool to create a lasting legacy. Today is a great day to start thinking about how you can use a will to execute your future wishes.

If you are looking for a trusted local partner in Greenville, South Carolina, the De Bruin Law Firm is here to guide you throughout the estate planning process. We believe in delivering preeminent legal services based on sound and strategic legal counsel.

Contact us today to schedule a consultation and learn how we can put our years of local experience to work for you.

How Can an Estate Planning Lawyer Help You?

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As you get older, the importance of developing an estate plan increases dramatically. However, according to a recent survey, only 42% of Americans have a plan for their estate.

Looking ahead at end-of-life situations feels grim, but you need to have a plan for what you leave behind. Should you pass intestate, meaning without a will, the state will be in charge of distributing your assets.

This sort of planning involves a significant amount of legal paperwork, intimate knowledge of estate planning laws, and a sound strategy. For this, you need an estate planning lawyer to guide you through the complex process of preserving your legacy.

The Duties of an Estate Planning Lawyer

It should be obvious that estate planning lawyers are attorneys who specialize in estate planning. That means their chief responsibility is assisting you in your end-of-life preparations. They ensure that your loved ones receive the benefits you’ve decided to pass along.

Start your estate planning with an attorney as soon as you’re able. Your estate plan needs to account for so much more than the money you’re leaving to loved ones. It may include designating guardianship, determining what to do with a business you own, and making determinations on financial assets like stocks.

You need the help of an attorney to guide you through the plan-making process.

Develop a Will

Writing a will is a critical aspect of estate planning. While you can write one on your own, enlisting the help of a qualified estate planning attorney will make the process much easier.

An attorney builds a will that uses specific language, can help the will stand up to contestation, and ensures that your assets are distributed in the way that you desire.

Will writing can be complex, and it’s easy to make mistakes. Unfortunately, a minor oversight could put your entire estate in jeopardy.

Establish a Trust

While wills typically go into effect in the event of your passing, a trust can go into effect immediately. Another key difference is that a will must go through the probate process and become public record, while a trust remains private.

Your lawyer may determine that establishing a trust is a more appropriate measure.

With a trust, you’ll name a trustee who will be responsible for distributing the assets named in the trust according to its outlined terms.

Assistance with Taxes

Inheritance and estate taxes can quickly drain any funds you pass along to your family members. This may leave them without the financial support you planned to provide for them.

An estate planning lawyer will work with you and your loved ones to navigate these complicated tax laws and help you minimize the tax liabilities associated with estate planning.

Powers of Attorney

Should you become incapacitated and unable to make decisions on your own, a lawyer can help establish powers of attorney so a loved one can act on your behalf. This is especially important if you’re someone’s primary caregiver, as you need to ensure that they’re provided for.

Situations When You Need an Estate Planning Attorney

In addition to their most common duties, an estate planning lawyer can aid you and your family members in a number of complex situations.

Updating Your Plan

Family dynamics are ever-changing, so you may deem it necessary to make changes to your end-of-life plan. Fortunately, a lawyer makes the process simple.

You may want to leave assets to a specific family member, add a new beneficiary like a grandchild or step-child, or exclude someone from your will.

Some members of your family may prove themselves too irresponsible to manage their inheritance. You may also need help navigating laws that prohibit non-immediate family members from receiving benefits.

Interstate or International Assets

Dealing with your state’s estate laws is complicated enough, but the process becomes even more difficult if you have assets in another state or another country. You’ll have to abide by the laws in those states and countries as well as the ones where you currently reside.

Without professional legal help in this situation, it’s almost impossible to ensure that your assets are protected and distributed in the manner you desire.

Succession for Your Business

If you’re an entrepreneur and own a small business or a stake in one, you need to ensure that your business doesn’t fall into the wrong hands when you pass. An attorney will help you determine your business’s succession plan and ensure that an appropriate individual takes the reins.

Protecting Your Will

Since wills go through the probate process, certain situations allow interested parties to contest the validity of your will. The responsibility of defending the will then falls to your named executor.

An experienced attorney can help ensure that your will is able to stand up to contestation. They can include a powerful no-contest clause that renders anyone who contests a will unable to receive benefits.

Establishing an Irrevocable Trust

While many estate plans allow you to modify them, an irrevocable trust cannot be changed. Due to the permanence of such a trust, it’s advised you consult with an attorney.

Irrevocable trusts have a few unique advantages and can certainly benefit your loved ones. They may help someone who depends on you for primary care retain their medical benefits, help a beneficiary who needs financial aid minimize costly estate taxes, and can protect your assets from debtors who come to collect from your estate.

An Estate Planning Lawyer Keeps Your Assets in Order

Planning your estate is a difficult thing to do, and it’s advised you start the process early. Consult with an estate planning lawyer so your beneficiaries don’t have to worry about what happens to your assets after your passing.

The best estate planning lawyers will help you develop a plan for your financial assets. They’ll determine if you need a will or trust. Finally, they can help you through all of the complex legal situations surrounding estate law.

Looking to hire a lawyer to help with your estate planning? The De Bruin Law Firm is ready to help. Schedule a consultation today.

The De Bruin Law firm offers a wide range of legal services to clients in Greenville, SC and the surrounding upstate. Our experienced attorneys can help you with legal matters in the areas of business law, criminal law, estate planning, and real estate law.

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