Estate Planning

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.

Where Can I Get a Living Will from in Greenville, SC?

A living will, officially known as a “Declaration of a Desire for a Natural Death” in South Carolina, is a cornerstone of thoughtful estate planning. It serves as a vital legal document, empowering individuals to articulate their preferences for medical treatment, especially regarding end-of-life care, in the unfortunate event they become unable to communicate these critical decisions themselves. 

For residents of Greenville, SC, understanding the available resources for establishing such a document is essential for securing peace of mind and ensuring one’s wishes are honored.

The South Carolina living will come into effect when an individual has a terminal condition or is in a persistent vegetative state, and life-sustaining measures would only prolong the dying process. 

It allows you to explicitly state whether you wish to receive interventions like artificial nutrition and hydration. South Carolina law has specific stipulations for a living will to be valid: the individual must be at least 18 years old and of sound mind, and the document must be in writing. Crucially, it must be signed in the presence of two witnesses and a notary public, with one witness potentially also serving as the notary. 

Strict rules govern who can be a witness, excluding relatives, medical personnel involved in your care, those financially responsible for your care, and beneficiaries of your estate or life insurance. If you are a patient in a hospital or nursing home, an ombudsman from the S.C. Ombudsman’s Office must also serve as a witness. It’s important to remember that a living will is not effective during pregnancy in South Carolina.

A living will is distinct from a last will and testament (which dictates asset distribution after death) and a healthcare power of attorney (which appoints an agent for broader medical decisions if you are incapacitated). While a living will can designate an agent to enforce or revoke it, this power is typically narrower than that granted by a healthcare power of attorney.

Here are the primary avenues for obtaining a living will in Greenville, SC:

Greenville, SC Estate Planning Attorneys

This is widely considered the most reliable and highly recommended approach. Experienced estate planning attorneys in Greenville offer invaluable, personalized guidance. They can meticulously draft your living will to ensure it precisely reflects your unique wishes, no matter how complex, and rigorously adheres to all intricacies of South Carolina law. Beyond the living will itself, these legal professionals can integrate it seamlessly into a comprehensive estate plan, which typically includes a healthcare power of attorney, a durable power of attorney for finances, and a last will and testament. This holistic approach ensures all aspects of your future care and asset management are coordinated and legally sound.

Greenville boasts numerous reputable law firms specializing in estate planning. Directories such as Justia and Super Lawyers can provide listings, with examples like Dobson Law Group and Moon Law being prominent. A consultation with an attorney offers the opportunity to delve into the nuances of these documents, clarify any uncertainties, and make informed decisions that will withstand legal scrutiny. The cost of legal services may vary, but the peace of mind and assurance of legal validity often outweigh the expense.

South Carolina Legal Services (SCLS)

For eligible low-income residents across South Carolina, including those in Greenville, South Carolina Legal Services (SCLS) provides a crucial lifeline. This non-profit organization offers free legal assistance for a broad spectrum of civil matters, which often encompasses the preparation of wills and other vital life planning documents like living wills. To inquire about eligibility and services, individuals can contact their Greenville office directly or utilize their statewide intake line. It’s important to note that SCLS typically has specific income and asset guidelines that applicants must meet to qualify for their pro bono services. Their assistance can be invaluable for those who might otherwise face barriers to accessing essential legal planning.

Healthcare Providers and Hospitals

Many healthcare institutions and systems, such as Prisma Health, a major provider in Greenville, offer resources related to advance directives, including living wills. They often provide general information, educational materials, and even standard forms, such as the official South Carolina “Declaration of a Desire for a Natural Death.” While these resources are beneficial for understanding the general scope and format of a living will, healthcare providers typically advise patients to consult with an attorney for personalized legal advice. The forms provided by hospitals are usually generic and may not fully capture specific, nuanced wishes or address complex family dynamics. Nevertheless, these resources serve as an excellent starting point for familiarizing yourself with the document and initiating discussions about advance care planning.

Online Legal Resources and Templates

The digital age offers a plethora of websites providing free or low-cost living will templates specifically tailored for South Carolina. These online platforms can be a convenient initial step for individuals seeking to draft their own documents. However, caution is paramount when using generic templates. While they may cover the basic legal requirements, they often lack the flexibility to accommodate unique circumstances or detailed personal preferences. South Carolina law specifies particular language and formatting for living wills, and even minor deviations or omissions in a self-prepared document could inadvertently render it invalid or ineffective when it truly matters.

If you choose to use an online template, it is highly advisable to have a South Carolina estate planning attorney review the completed document. This professional review can identify any potential flaws, ensure the document’s legal validity, and confirm that it accurately and comprehensively reflects your intentions. The relatively small cost of a legal review can prevent significant complications and distress for your loved ones during a difficult time.

Beyond Obtaining the Document: Crucial Steps

Simply obtaining a living will is only the first step. To ensure its effectiveness, several other crucial actions must be taken:

  • Open Communication: Have frank and open discussions about your wishes with your closest family members and, most importantly, your primary care physician. This ensures that everyone involved understands your desires and can advocate for them if you become incapacitated.
  • Strategic Distribution of Copies: Once your living will is properly executed, make multiple copies. The original should be given to a trusted individual, such as your appointed healthcare agent (if applicable), or kept in a secure, accessible location at home. Provide copies to your primary care physician, any specialists, and other close family members. Crucially, avoid storing the only copy in a safety deposit box, as it may not be readily accessible in an emergency.
  • Regular Review and Updates: Life circumstances, medical conditions, and personal preferences can change over time. It is highly recommended to review your living will periodically, ideally every few years or after significant life events such as a new medical diagnosis, marriage, divorce, or the birth of a child. South Carolina law allows you to revoke or amend your living will at any time as long as you are competent.

In essence, while various pathways exist for acquiring a living will in Greenville, SC, engaging with a knowledgeable estate planning attorney provides the most robust and personalized assurance that your end-of-life wishes will be clearly articulated and legally enforced. For those with financial constraints, South Carolina Legal Services offers invaluable support. Ultimately, the objective is to create a legally sound and comprehensive document that provides profound peace of mind, ensuring your medical preferences are honored and alleviating potential burdens on your loved ones during challenging times.

Important Considerations:

  • Discussion with Family and Physicians: Regardless of where you obtain your living will, it’s vital to discuss your wishes with your family members and your primary care physician. This ensures that everyone involved understands your desires and can advocate for them if needed.
  • Distribution of Copies: Once your living will is properly executed, make several copies. Provide the original to a trusted individual (like your appointed healthcare agent, if applicable), and give copies to your primary care physician, other healthcare providers, and close family members. Keep a copy in a safe, accessible place, but not in a safety deposit box where it might be difficult to retrieve quickly in an emergency.
  • Review and Update: Life circumstances change, and so might your medical preferences. It’s advisable to review your living will periodically (e.g., every few years or after significant life events like a new diagnosis, marriage, or divorce) and update it as necessary. You can revoke a living will at any time if you are competent.

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 Complete Guide on What to Include in a Will

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No matter the size of your estate, it’s important to have a will. More often than not, there are things that every one of us would like to ensure get taken care of in our absence. Whether it’s children, pets, property, or money, ensuring that everything has a place is going to make it easier on your loved ones once you’re gone.

But what’s included? Where can you turn for help when it’s needed? Are there guidelines you can follow?

We’re here to help. Read on to learn what to include in a will.

Personal Assets

When it comes to wills, personal assets are defined as anything you own that isn’t considered “real property.” This can be anything from a car to clothing, or jewelry, furniture, or cash.

When you’re creating your will, you have to make sure your personal assets are specific. If they’re not, you leave space for your executor to be confused and have trouble determining your wishes.

This leads to the next thing you should have in your will.

Executor

An executor is a person you assign to carry out your last will and testament. This person is going to be responsible for paying off debts or taxes you may owe and then divvying up your estate.

The better the state your affairs are left in, the easier it’s going to be for your executor to carry out your wishes.

Real Property

The next thing that should be included in your will is real property. Real property is anything that falls under land, homes, physical buildings, and even mineral interests.

It’s a bit more complicated to divvy these assets out, but it’s still possible. Hiring a lawyer can be helpful in these cases.

Guardianship

After property, the next thing to consider is guardianship. If you have children or pets, they’re typically going to go to your spouse or next of kin unless you specify otherwise.

If you find that your spouse or next of kin wouldn’t be up for the task, it’s best to send them to someone who could better care for them in your absence. You want to make sure the person you’re choosing for this task knows ahead of time and has given you their approval before making the decision.

Whether or not the pet or child has expensive needs, you can leave money behind to care for them.

If you’re hesitant about letting someone know they’d be the one caring for your pet, it’s important to think about the fact that they might give them up if they think they can’t handle it. As for your child, you want to make sure they’re left with the proper care they would need.

Cancel Any Debts Others Owe You

If you’d like the debts that others owe you to be considered water under the bridge, then you’re going to have to state that in your will. It’s easy to think that your death would rid anyone of these debts, but that isn’t always the case.

In most cases, that debt is simply going to be passed to those who inherited your estate.

Instructions on How to Manage Property

One other thing to include in your will is instructions on how to care for any of your property. This may be particularly helpful to anyone you’re leaving property to.

If there are specific companies that can or do care for your home, then leaving a list of those could prove helpful. Think cleaning services, landscapers, pool cleaners, pest inspectors, and other things of that nature.

If you have plants or other living things, then it could be smart to include how often you water them, what type of fertilizer you use, and how often, or other specific care you perform for the plant.

You can also specify you want your assets sold, and then how you’d like the proceeds distributed.

Things to Not Place on Your Will

While there are plenty of things that are smart to include in your will, there are also things that don’t belong there.

Property in a living trust is one of these things. If you have a living will set up, then the property is going to automatically go to the beneficiary you’ve designated in your living trust and is managed by the state.

Life insurance proceeds fall under the same rule. Those are automatically going to fall to either the beneficiary, your partner, or your minor children. Retirement plan proceeds, like money from a pension, IRA, or 401(K) also should not be included in your will as they contain a section for you to set a beneficiary.

Plans For Your Funeral

More often than not, the settling of your estate won’t happen until after the funeral, so, likely, nobody will even notice that you’ve included your funeral wishes until after the fact.

Instead of leaving any wishes in your will, simply talk to your loved ones about what you’d like. You can also create a separate document outlining any wishes for your funeral. You can give this document to the executor of your estate.

You Know What to Include in a Will… Now What?

Now that you know what to include in a will, it’s time to take the next steps in preparing yours. If the process is confusing for you, or you have a complicated estate, it may be best to turn to a professional for help.

When you hire a lawyer to guide you through the process, you ensure that everything is taken care of and that nothing is done improperly.

De Bruin Law Firm can help with your estate planning. Contact us to get started today.

Living Will vs. Living Trust: What’s the Difference?

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Are you in South Carolina, wondering how to plan your estate?

You’ve probably at least thought about writing a traditional will or perhaps a living trust. Have you also considered writing a living will?

You may be unsure what a living will is, and that might be why so few US citizens have one. Only 25% of Americans create a living will. Without this important document, your loved ones may face heart-wrenching dilemmas at the worst possible time.

We’re going to explain what a living will is, its function, and how it differs from similar documents you might have heard of. Read on!

What Is a Living Will?

A living will is a legal document that’s also sometimes referred to as an “advance health care directive” or “advance directive.” We’ll cover the subtle differences later.

The living will is a document of your directions concerning medical decisions. These directions represent your intended actions that medical staff should follow. Simply put, it’s a blueprint for medical staff or other care providers during life-or-death scenarios.

Your living will is only in effect when you face a serious health crisis and will be unable to effectively guide treatment yourself. This could mean you are permanently unconscious, suffering a terminal illness, receive a serious mortal injury, or experience advanced dementia.

These decisions are of particular importance when it comes to life-prolonging treatments or procedures. The living will is designed to deal with situations where death is imminent unless there is medical intervention.

Also, it may record your preferences regarding how medical staff will manage your pain.

The Function of a Living Will

A living will can lift weighty-decisions off of the shoulders of your family and/or your care team.

This document makes your decisions a legal requirement because these choices can be hard for family or friends to make. This is sometimes still true, even when your wishes are already known to them.

It can prevent any fear, regret, or guilt from manifesting. Confusing thoughts and feelings like these might otherwise stem from uncertainty. This might compound with grief after your death, resulting in greater emotional pain.

This document removes the ambiguity that could lead to conflict over which course of action to take.

You shouldn’t delay writing a living will until your senior years. A medical emergency, or any other tragedy, could strike at a moment’s notice. If you’re 18 or older and not cognitively-impaired, you should consider creating one now.

Remember that a living will is only enacted if you lose your ability to indicate your choices. A medical and legal determination of this fact may be necessary, based on the criteria set out by federal and state laws. Your medical staff needs to be convinced that you cannot understand or communicate your decisions, even through non-verbal means.

Under these circumstances, a nominated person can make choices for you, other than those regarding life support.

e professionals and family members know how you want to be treated in specific medical scenarios, especially during terminal illness or after serious injury.

What a Living Will Typically Includes

A living will may include your instructions regarding:

  • Life-prolonging treatments (e.g., ventilators, dialysis machines)
  • Surgical interventions or invasive procedures
  • Artificial hydration and nutrition (feeding tubes, IV fluids)
  • Pain relief and palliative care options
  • Use of drugs and antibiotics
  • Orders regarding blood transfusions or diagnostic tests
  • Decisions about resuscitation and cardiopulmonary resuscitation (CPR)
  • Supportive breathing measures like mechanical ventilation

In short, a living will is your voice in the room when you’re unable to speak for yourself.

Advanced Directives: More Than Just a Living Will

A living will is just one type of advanced directive. An advanced directive is a more comprehensive set of instructions for your medical care in the event of incapacitation.

One common inclusion in an advanced directive is a Do Not Resuscitate (DNR) order. A DNR is a specific instruction that tells medical staff not to perform CPR or other life-saving procedures if your heart stops or if you stop breathing. Implementing a DNR typically requires consultation with a doctor and a formal signed document, sometimes also involving a physician’s signature.

Another key element of an advanced directive is the medical power of attorney (MPOA), also known as a healthcare proxy. This legal tool allows you to appoint someone you trust to make healthcare decisions on your behalf. This person—called your healthcare agent—will step in only when you are unable to make decisions for yourself due to illness or injury.

A medical power of attorney ensures that someone who understands your values and wishes is making those decisions instead of leaving them in the hands of the court or medical providers who may not know you personally.

Living Trust in South Carolina vs. Living Will

There’s often confusion between a living will and a living trust, but they serve entirely different purposes.

A living trust, often referred to as a revocable living trust, is more similar to a last will in that it deals with asset management and distribution—but with some critical differences.

A living trust is created during your lifetime and can be revised or revoked at any time before your death. It allows you to transfer ownership of your property and assets into the trust, which is then managed by a trustee (which can be you, a co-trustee, or someone you appoint). After your death, the trustee distributes your assets according to your instructions—without going through probate.

Benefits of a Living Trust in South Carolina

  • Avoids Probate: Probate is the court-supervised process of validating a will. It can be lengthy and costly. A living trust helps your heirs bypass this process.
  • Privacy: Unlike a last will, which becomes a matter of public record, a living trust remains private.
  • Faster Distribution: Since it doesn’t go through probate, assets in a living trust can be distributed more quickly to beneficiaries.
  • Continuity in Incapacitation: If you become incapacitated, your co-trustee or successor trustee can manage your affairs without court intervention.

People with complex estates, blended families, or significant assets often prefer living trusts because of these advantages.

Key Differences at a Glance

Feature Last Will Living Will / Advanced Directive Living Trust in South Carolina
Applies When? After death During life, if incapacitated During life and after death
Purpose Distribute assets; guardianship Dictate medical preferences Manage and distribute assets
Requires Probate? Yes No No
Becomes Public? Yes No No
Names Healthcare Agent? No Yes (via medical power of attorney) No
Controls Medical Treatment? No Yes No

Why Last Wills and Living Trusts in South Carolina Are Both Important

Having both a last will and advanced directives is essential to ensure complete coverage of your wishes—both during life and after death. Without a living will or medical power of attorney, you risk receiving treatments you would not have wanted, or you may place your family in a painful position of having to guess your desires.

Similarly, without a last will or living trust, the fate of your assets and your loved ones’ future may be left in the hands of the court.

Common Misconceptions

  • “I don’t need a will; I don’t have many assets.”
     Even if you don’t own property, a will ensures personal belongings, family heirlooms, and dependents are cared for according to your wishes.
  • “I’m too young for a living will.”
     Health emergencies can happen at any age. Having advanced directives in place ensures you’re prepared, no matter what the future holds.
  • “A living trust is only for the rich.”
     While especially beneficial for larger estates, anyone with property or specific wishes about inheritance can benefit from a trust.

Planning for Peace of Mind

Creating a comprehensive estate plan that includes a last will, advanced directives, and possibly a living trust provides peace of mind for you and your loved ones. It helps avoid unnecessary legal complications, ensures that your healthcare preferences are honored, and gives your family clear guidance during difficult times.

These legal documents are not just paperwork—they are a way to express your values, protect your legacy, and minimize conflict. Whether you’re starting a family, managing chronic health conditions, or entering retirement, it’s never too early to begin planning.

Consulting with a qualified estate planning attorney or legal advisor can help ensure that your documents are valid, up to date, and compliant with your state’s laws.

Living Trust or Living Will?

A “revocable living trust,” or simply “living trust” is like a last will. Writing a trust regards decisions relating to the distribution of assets after death.

The word “revocable” is there because revisions can be made during your lifetime since the document is not in effect until after death.

Within the document, an individual trustee is appointed to oversee the division of assets. A co-grantor or co-trustees are also appointed, to fund and manage the living trust together. The reason for two is in case of incapacitation.

A living trust is used by individuals with complex estates, to avoid probate.

A last will becomes public property after death, but a living trust does not. A living trust allows assets to be redistributed more quickly and with less expense.

The focus of a living will helps to clarify:

  • Surgeries or procedures you opt to forgo
  • Your decisions for various life-extension scenarios
  • Your choices regarding any active health conditions
  • Whether you would opt for kidney dialysis
  • Any end-of-life/palliative decisions
  • Pain management considerations
  • Use of artificial hydration
  • Whether to perform tests or blood transfusions
  • Your wishes regarding the use of drugs
  • Instructions about supported breathing
  • If an intravenous feeding tube should be used

Your living will might also dictate your choice of a natural death versus extending your life or prolonging the dying process. It might also specify whether you stay in the hospital or receive comfort care in a home environment.

Importantly, this document supersedes the medical decisions that would otherwise be made, due to legal requirements. Having an attorney create a living will is an important part of your estate planning.

Living Will vs. Living Trust in South Carolina

There’s a common misconception that a living will and a living trust are interchangeable terms, or that they serve similar functions in the realm of estate planning. However, this couldn’t be further from the truth. While both are vital components of a comprehensive estate plan, they address entirely different aspects of your future, particularly concerning healthcare decisions versus asset management and distribution. Understanding these distinctions is important for anyone in South Carolina looking to establish a robust plan for their end-of-life wishes and the legacy they leave behind.

At its core, a living will (also known as an advance directive for healthcare) is a legal document that dictates your medical treatment preferences should you become incapacitated and unable to communicate them yourself. This document comes into play during a health crisis, such as a terminal illness, a persistent vegetative state, or an irreversible coma. 

In South Carolina, a living will allows you to specify whether you want life-sustaining treatments (like artificial hydration and nutrition, mechanical ventilation, or CPR) to be withheld or withdrawn. It empowers you to make critical decisions about your medical care in advance, ensuring your wishes are respected and alleviating the burden of difficult choices from your loved ones during an emotionally challenging time. 

Without a living will, medical decisions for an incapacitated individual often fall to family members, who may disagree or be unsure of your desires, potentially leading to familial conflict and prolonged suffering. A living will ensures your autonomy in medical matters, even when you can no longer voice your preferences.

In stark contrast, a living trust (often referred to as a revocable living trust) is a sophisticated estate planning tool primarily concerned with the management and distribution of your assets both during your lifetime and after your death. While it shares some similarities with a traditional last will and testament in its focus on asset disposition, a living trust offers several critical advantages that a will simply cannot.

The fundamental difference lies in when and how it becomes effective. A living trust is created and becomes active during your lifetime. This means you transfer ownership of your property and assets (such as real estate, bank accounts, investments, and personal belongings) from your name into the name of the trust. 

As the creator of the trust, you typically serve as the initial trustee, allowing you to maintain complete control over your assets. You can manage them, buy and sell property, and make investment decisions just as you would before the trust was established. This arrangement provides flexibility; the trust is “revocable,” meaning you can modify it, add or remove assets, or even dissolve it entirely at any point before your death, provided you are of sound mind.

Upon your death, or if you become incapacitated and unable to manage your own affairs, the successor trustee you’ve appointed steps in. This successor trustee is responsible for managing the trust’s assets according to the instructions you’ve outlined in the trust document. 

This seamless transition is one of the most significant benefits of a living trust: it avoids probate. Probate is the legal process through which a will is validated by the court and assets are distributed. It can be a lengthy, public, and often expensive process, involving court fees, attorney fees, and executor fees. 

In South Carolina, as in many states, probate can tie up assets for months or even years, delaying their distribution to your beneficiaries. By transferring assets into a living trust, these assets are no longer considered part of your individual estate, and therefore, do not have to go through the probate court. This not only expedites the distribution of your assets to your beneficiaries but also maintains the privacy of your financial affairs, as probate records are public.

Beyond probate avoidance, a living trust offers several other advantages. It can provide for seamless management of your assets in the event of your incapacitation without the need for a court-appointed conservator or guardian. The successor trustee can immediately step in and manage your financial affairs according to your wishes, ensuring your bills are paid and your investments are handled. This is a crucial benefit that a simple will cannot provide, as a will only becomes effective upon your death.

Furthermore, a living trust can be a valuable tool for managing assets for beneficiaries who are minors, have special needs, or are simply not financially savvy. You can establish specific conditions for how and when assets are distributed, ensuring they are used wisely and for their intended purpose. For example, you can stipulate that a grandchild receives a portion of their inheritance at age 25, another at 30, and the remainder at 35, rather than a lump sum upon your death.

While both living wills and living trusts are essential for a comprehensive estate plan in South Carolina, their functions are distinct. A living will addresses your medical autonomy and end-of-life healthcare decisions, ensuring your wishes are honored even when you cannot speak for yourself. A living trust, on the other hand, provides for the efficient, private, and flexible management and distribution of your assets, both during your lifetime and after your passing, while effectively bypassing the often cumbersome probate process.

For South Carolina residents, understanding these differences is the first step toward creating an estate plan that truly reflects your desires and protects your legacy. Consulting with an experienced estate planning attorney is highly recommended to determine which of these tools, or a combination thereof, best suits your unique circumstances and goals. By proactively planning, you can gain peace of mind knowing that your healthcare wishes will be respected and your assets will be distributed efficiently and according to your specific instructions.

Write Your Living Will

We’ve shown that a living will is a vital document that can relieve the burden of difficult decisions from family and friends. Don’t let your loved ones struggle with carrying out your wishes when you can’t communicate them.

If you’re in South Carolina and need to plan your estate, we can help. We are a full-service law firm that specializes in last wills, trusts, living wills, and power of attorney. We proudly serve Greenville, SC, and the surrounding upstate area.

Contact us today to schedule a consultation.

Your Essential Estate Planning Checklist

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Estate planning is a process that many people often find stressful. This is true even for those who have dealt with this type of situation before.

We’ve put together a short estate planning checklist to help streamline your obligations. Let’s explore everything you should know.

A Comprehensive Will or Trust

As you may guess, one of your primary estate planning responsibilities is to develop a comprehensive will or trust. This is true even for those who do not have a substantial number of assets to distribute.

Without these documents in place, it can be notoriously difficult to ensure that the appropriate parties receive what they are entitled to. It’s not uncommon for the absence of a will or trust to result in legal complications for other individuals down the line.

Additionally, the wording of these documents is highly important. Individuals should be clearly defined, and there should be no question about what party is entitled to specific assets.

Wills that have ambiguous language can often lead to feuds over entitlement, legal battles, etc.

Power of Attorney

For those unfamiliar with this term, power of attorney refers to allowing a specific individual to act on your behalf.

To elaborate, it’s crucial to establish a strong power of attorney during your estate planning so that your assets are properly allocated. Otherwise, a court may be in charge of deciding how your assets or property are distributed.

More often than not, their decision will not align with your original intentions.

Power of attorney comes into play during scenarios where you are no longer fit to make decisions for yourself, such as if you are mentally incompetent or deceased. It’s highly recommended to choose someone who has your best interest in mind.

Designated Beneficiaries

As previously mentioned, you need to clearly designate what individuals are going to receive certain possessions or property. But, there’s an interesting component of estate planning that many people tend to overlook.

Certain types of possessions can be claimed by your heirs without being formally designated within your will or trust. For example, 401(k) plan assets fall into this category.

Declaring the beneficiary will ensure that this individual can handle your wishes appropriately. When choosing a beneficiary, it’s also worth considering their overall health.

If the individual that you designate is mentally incompetent or deceased, the court could take over instead. Additionally, the beneficiary that you name should be over the age of 21 in order to prevent complications from arising in the future.

Healthcare Power of Attorney (HPCA)

As the name suggests, a healthcare power of attorney allows another individual to make health-related decisions on your behalf.

This often comes into play when someone suffers from a debilitating mental condition, gets into an accident, etc. At this point, the HPCA (which is often a family member or spouse) can make decisions for the affected individual.

It’s best to choose someone you trust who has views that align with your own. Because this role is so important, you also need to designate a backup agent.

This individual will take over in the event that your designated HPCA is unable to act. Typically, a backup agent is someone who is not associated with the original HPCA.

A Letter of Intent

This document is as straightforward as it sounds — it declares exactly how your beneficiary should handle your assets. Common details include funeral arrangement requests or how to act during specific scenarios (such as giving money to a nephew after they graduate college).

In the event that your will is deemed invalid, a letter of intent could help the court gain insight into your original intentions. This is something essential to keep in mind, as your plans may otherwise fall through entirely.

Designated Guardians

For those who have children or are plan on having kids one day, it’s imperative that you clearly define designated guardians while planning your estate. Unfortunately, this obligation is often overlooked due to being preoccupied with the distribution of property or finances.

Additionally, individuals with children often do not foresee themselves becoming deceased or mentally incompetent before their children are grown.

The guardian you declare should be both mentally competent and enthusiastic about caring for your children. Additionally, they should be financially sound and capable of providing your children with a safe environment that is conducive to their development.

As you might expect, you should also name additional individuals as backups. Without these precautions in place, a court may rule that your children should be placed under the care of a family member you don’t trust.

In some circumstances, a court may even rule that your children are to be deemed wards of the state.

Create a List of Outstanding Debts

For those who are unaware, it’s possible that certain debts can pass to the beneficiary of your will. In some cases, the amount of debt that this individual experiences will outweigh the total value of the assets they receive.

To elaborate, let’s assume that the combined value of the assets someone inherits is worth $50,000. But, they also become responsible for $250,000 in secured loan debt.

To help navigate this situation, it’s highly recommended to get in touch with a professional and inform them about your concerns.

This Estate Planning Checklist Can Be Game-Changing

It’s essential that you keep it in mind. From here, you can use the above estate planning checklist to ensure that the process goes as smoothly as possible.

Want to learn more about what we have to offer? Feel free to reach out to us today and see how we can help.

Probate Administration 101: What Is It? And What To Do?

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When a person dies, the distribution of assets happens according to their will or estate plan. Sometimes this distribution runs into conflicts and disagreements amongst family members and creditors.

When disagreements occur, a case is filed with a local court system to review the conflicts. At the start of 2021, the South Carolina State Court Administration office reported that there were over 50,000 probate cases in the statewide court system.

Probate administration means distributing these possessions consistent with an existing will. If you were recently appointed as a will’s executor, read more here on the process.

Probate Administration Defined

Probate administration means managing someone’s personal property after they die. When someone creates their will, the legal process will validate their last wishes after their death. This process also helps execute their instructions and distribute their assets.

When someone dies without a will in place, the local probate court decides on how to allocate the remaining property.

What Happens After a Letter of Administration in South Carolina?

Receiving a Letter of Administration in South Carolina marks a significant step in the probate process when someone passes away without a valid will. This document officially appoints an individual, known as the Administrator, to manage and settle the deceased person’s estate. While obtaining the letter is a crucial milestone, it is merely the beginning of a complex series of responsibilities. The Administrator is now tasked with a fiduciary duty to act in the best interests of the estate and its beneficiaries, ensuring all legal requirements are met before the estate can be formally closed.

Understanding the Letter of Administration

The Letter of Administration is a pivotal legal document within the probate process, particularly in the state of South Carolina. It is an official decree issued by the South Carolina Probate Court that formally appoints an individual, known as the Administrator, to manage the estate of a deceased person. 

This document is a cornerstone of the legal framework surrounding inheritance and asset distribution when a person dies without a valid will, a situation legally termed “dying intestate.” Its significance extends to other specific scenarios as well, such as when a will exists but fails to name an executor, or when the named executor is for various reasons, unable or unwilling to fulfill their duties. In essence, the Letter of Administration is the key that unlocks the door to managing a deceased individual’s financial and property affairs.

The primary function of the Letter of Administration is to grant the appointed Administrator the legal authority to act on behalf of the deceased individual’s estate. This authority is comprehensive and essential for navigating the complex and often sensitive process of estate settlement. 

Without this formal appointment, an individual, even a close family member, lacks the legal standing to access and manage the deceased’s assets. Banks and other financial institutions, for instance, are bound by strict legal protocols and will not release funds from a deceased person’s accounts to anyone who cannot provide a valid Letter of Administration. Similarly, real estate transactions, vehicle title transfers, and other significant asset management tasks cannot be legally performed without this document. The letter serves as an official, court-backed proof of the Administrator’s power, legitimizing their role to all parties involved.

The powers bestowed upon the Administrator by the Letter of Administration are extensive and critical for the proper winding up of the estate. The Administrator’s responsibilities typically include locating and inventorying all the deceased’s assets, which can range from bank accounts and investment portfolios to real estate, vehicles, and personal belongings. 

Once the assets are identified, the Administrator is responsible for managing them prudently. This may involve selling property, either real estate or personal effects, to generate funds to pay off the estate’s debts. 

The Administrator must also handle all of the deceased’s financial obligations, including paying outstanding bills, settling credit card debts, and filing and paying any necessary taxes, such as final income tax returns or estate taxes. The fiduciary duty of the Administrator is paramount; they must act in the best interests of the estate and its legal heirs at all times.

Once all debts and administrative expenses have been paid, the final and perhaps most important duty of the Administrator is the distribution of the remaining assets. In a case of intestacy in South Carolina, this distribution is not guided by the deceased’s wishes, as no will exists to articulate them. 

Instead, the Administrator must adhere strictly to South Carolina’s laws of intestate succession. These laws are a set of legal rules that dictate how an estate’s assets are to be divided among the surviving family members. The order of priority is clearly defined, with the spouse and children typically having the primary claim, followed by parents, siblings, and other relatives in a specific order. 

The Letter of Administration empowers the Administrator to carry out this legal distribution, ensuring that the deceased’s assets are passed on to the rightful heirs as mandated by state law. In essence, the Letter of Administration is not just a document; it is the legal instrument that initiates, guides, and validates the entire process of settling an intestate estate, providing clarity and legal authority where none previously existed.

Initial Steps After the Appointment

Once the Letter of Administration is issued, the Administrator must take several immediate actions. The first crucial step is to obtain an Estate Identification Number (EIN) from the Internal Revenue Service (IRS). This is like a Social Security number for the estate and is required for opening an estate bank account and filing tax returns.

Next, the Administrator should open a separate bank account in the name of the estate. All funds belonging to the deceased should be deposited into this account, and all estate-related expenses should be paid from it. This separation of funds is vital for maintaining clear financial records and avoiding commingling of assets, which can lead to legal issues.

Gathering and Valuing Assets

A primary responsibility of the Administrator is to identify, locate, and take control of all assets belonging to the deceased. This includes real estate, bank accounts, investment portfolios, vehicles, personal belongings, and any other valuables. Once identified, these assets must be properly valued.

Real estate may require a professional appraisal, while personal property might be valued through a combination of appraisals, online research, or estimates.

It’s important to differentiate between probate assets (those that pass through the estate) and non-probate assets (such as life insurance policies with named beneficiaries or jointly owned property with rights of survivorship), as non-probate assets do not fall under the Administrator’s direct control for distribution. An inventory of all assets and their values must be filed with the Probate Court within a specified timeframe, usually 90 days from the appointment date.

Notifying Creditors and Paying Debts

South Carolina law requires the Administrator to notify potential creditors of the deceased’s passing. This is typically done by publishing a notice in a local newspaper, informing creditors that they have a specific period (usually eight months from the first publication date) to file claims against the estate.

The Administrator must also send direct notice to any known creditors. All valid claims must be paid from the estate’s assets before any distributions can be made to heirs. If the estate’s assets are insufficient to cover all debts, South Carolina law provides a specific order of priority for paying creditors. The Administrator must carefully review all claims and challenge any that appear invalid or excessive.

Managing Estate Finances

Throughout the probate process, the Administrator is responsible for the prudent management of the estate’s finances. This includes paying ongoing expenses such as utility bills for real estate, mortgage payments, insurance premiums, and property taxes.

The Administrator must also handle any income generated by the estate, such as rental income or dividends from investments. Accurate and meticulous record-keeping is paramount. Every transaction, including receipts and disbursements, must be documented. The Administrator is also responsible for filing the deceased’s final individual income tax return and any necessary estate income tax returns (Form 1041) with the IRS and the South Carolina Department of Revenue.

Distributing Assets to Heirs

Once all debts, taxes, and administrative expenses have been paid, the Administrator can proceed with distributing the remaining assets to the legal heirs. In South Carolina, if there is no will, the law of intestate succession dictates who inherits the property.

Generally, this means assets are distributed to the surviving spouse, children, parents, or other close relatives in a specific order. The Administrator must ensure that distributions are made correctly according to these laws. Before making final distributions, it’s often advisable to obtain a release from the heirs, acknowledging receipt of their share and releasing the Administrator from further liability.

Filing the Final Accounting

Before the estate can be officially closed, the Administrator must prepare and file a detailed Final Accounting with the South Carolina Probate Court. This document provides a comprehensive summary of all financial activities of the estate from the time of the Administrator’s appointment until the final distributions.

It includes a listing of all assets initially collected, all income received, all expenses paid, and all distributions made to heirs. The Final Accounting demonstrates that the Administrator has fulfilled their fiduciary duties and managed the estate’s assets appropriately. Interested parties, such as heirs or creditors, typically have an opportunity to review and object to the accounting if they find discrepancies.

Closing the Estate

After the Final Accounting has been approved by the Probate Court and all assets have been distributed, the Administrator can petition the court to formally close the estate. This involves filing a Petition for Discharge, requesting that the Administrator be relieved of their duties and liabilities.

Once the court grants the discharge, the estate is legally closed, and the Administrator’s responsibilities are concluded. This final step provides legal closure and protects the Administrator from future claims related to the estate, assuming all duties were performed diligently and lawfully.

Potential Challenges and Considerations

The administration of an estate can present various challenges. Disputes among heirs, unexpected debts, difficulties in valuing or selling assets, and complex tax issues are common. The Administrator may also face personal liability if they fail to properly fulfill their fiduciary duties, such as mismanaging funds or failing to pay legitimate debts.

It is highly recommended that an Administrator seek legal counsel from an experienced South Carolina probate attorney. An attorney can provide guidance on legal requirements, assist with court filings, mediate disputes, and help navigate any complexities that arise, ensuring the process is handled efficiently and in compliance with state law.

Probate Administration Terms

Probate administration involves terminology that can appear overwhelming when you’re already handling a great load of personal grief. Some probate terms you’ll need to learn include:

Decedent

Decedent is a legal term used in estate planning and probate matters. This term refers to the deceased person whose estate is subject to probate proceedings.

Personal Representative or Executor

This is the person responsible for executing the final instructions contained within the will. This role is also called a personal representative.

Letters of Testamentary

These documents come from the local probate court to authorize the executor to begin executing the will.

Notice to Creditors and Notice for Probate

These are written notices sent to any interested party in the estate in question.  Executors send these notices to creditors and identified heirs.

Informal Probate Procedures

Those states that adopt a Uniform Probate Code don’t conduct probate court hearings. This code applies whether the estate is small or large.

This system also applies if the deceased left no will. If someone contests a will, they can’t use this informal system.

Steps to Navigating the Probate System

Your case is determined by your own state’s laws. But most probate cases will go through this process.

Probate Opens

Executors will file a petition with the probate court where the deceased lived. Executors must “prove” a will. They can’t distribute any estate assets until they complete this step.

Send Notice

When the probate court approves the will and appoints the administrator, they should notify interested creditors or other parties. “Interested parties” refers to those specified in the will, as well as other relatives. Probate law refers to these people as the “next of kin.”

An administrator can post a notice in their newspaper if an interested party’s address can’t be found. Interested parties can include:

  • Relative(s) who might inherit an estate in the absence of a will
  • Creditors that the executor learns about after processing the decedent’s financial papers

Itemize Assets/Property

Probate administration also includes calculating the estate’s total value at the time of death. Executors calculate these assets themselves or consult a professional appraiser. Executors might also consult a broker to calculate the value of personal investments (i.e., stocks and bonds) at the time of death as well.

Executors send inventory lists to the estate’s heirs as well as the probate court. An itemized asset list can help demonstrate that the estate was evenly distributed amongst the heirs and creditors.

Distribute Assets

“Asset distribution” doesn’t only apply to making sure beneficiaries receive their inheritance. Distributing assets also include paying out the estate’s outstanding taxes or debts. Asset distribution also includes closing any of the decedent’s existing bank or retirement accounts.

Distributing assets also includes following the laws to leave money designated for minors. A minor can’t legally inherit funds directly. The executor creates a trust to hold the money until the minor is an adult and manages that trust until the minor grows up.

Close the Estate

The last step in probate administration is to close the estate. The executor files a petition to disband the estate and closes the case. This petition is filed once all the assets have been sold, discarded, or distributed and the executor’s and necessary court fees are paid.

What Is Probate Court?

Probate court is the legal forum when conflicts arise with probate administration. Probate judges can review a case if major disagreements come up. Here are some examples of when a probate judge can intervene.

When a will is uncontested that means all involved parties agree that it’s valid. If someone disagrees with a will or that it contains errors, the case is submitted to the court. That’s when a judge will decide if these concerns are accurate

Creditors to an estate must claim outstanding debt within certain deadlines. If an executor denies a creditor’s claim, a judge will rule on the matter

Sometimes executors need to sell estate assets, just to settle outstanding creditor debt claims. If they disagree with those creditor    claims, executors can ask a judge to rule on these matters as well

Beneficiaries may disagree with the way the executor is performing their duties. These beneficiaries can bring their concerns to a judge to review

What Is a Probate Lawyer?

One of the main players in probate administration is the probate lawyer. A probate lawyer can file petitions to appoint an executor and report to the court what the executor completed during his/her administration period. Probate attorneys receive creditor’s claims and send notices to heirs and beneficiaries that the case is opened or closed.

They also handle all required procedures in the courts. For example, they may file a will or contest who becomes the executor. They can handle creditors’ claims and gives notice to creditors, and heirs, beneficiaries, and other people who should receive notice of probate.

Next Steps in Probate Administration

If you are an estate’s executor your first step is to file a petition with the probate court where the deceased lived. You can’t distribute the estate’s assets until you finish this step. The local court will then decide if the will is valid.

Prepare your notices to beneficiaries. Review all creditors’ claims filed against the estate. Itemize the value of the estate and then distribute the assets according to your local court laws.

If you encounter problems along the way with probate administration, don’t hesitate to give us a call. The De Bruin Law Firm is ready to help you with your probate responsibilities.

Key Reasons to Use an Attorney for Estate Planning Services

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Key Reasons to Use an Attorney for Estate Planning Services

In recent months, many of us have gotten better about one essential need: estate planning.

Though 62% of Americans still don’t have a will, the current health crisis has prompted many to draft or update theirs. Concerns about the pandemic have made many people, young and old, decide that the time has come to protect their assets and their loved ones.

But while these intentions are good, it’s worth noting that you’ll only reap the benefits if you do the estate planning process correctly on the front end. After all, it’s certainly true that you can draw up your own will and trust—but should you?

What benefits can an attorney offer that you can’t provide on your own? Should you partner with an expert, or should you assume your own efforts will protect your assets? Let’s take a look at a few key reasons to use an attorney for estate planning services.

Attorneys Know Local Estate Planning Laws

Even if you have a fair amount of legal background, it can be difficult to understand the nuances of your local estate planning laws. Though the overall picture of estate planning looks the same nationwide, each individual state will vary in the details.

Some states have special requirements about what can and can’t be in a will or trust. Others require certain formalities during the signing of any of these documents. Some even require personal representatives to be related to you by blood or marriage.

In addition, an attorney’s job is to stay on top of the ever-changing legal environment of estate planning. The federal and state governments and courts make small but constant changes to the details of the law, making it hard for a layperson to know the latest requirements.

This is why it’s critical to partner with a team of estate planning experts who understand the nuances of South Carolina’s estate planning laws.

Templates and Cheap Services Lead to Mistakes

It’s not difficult to find online services that offer help to anyone struggling with DIY estate planning. From free templates to cheap ebooks, you might hope to tackle this project on your own to save money.

However, the small amount that you save now can ultimately cost your family hundreds or thousands in the future. If part or all of your legal documents are found to be invalid, your loved ones may have to partner with an estate planning attorney to remedy your costly mistake.

Professional Estate Planners Save Money, Time, and Energy

As noted in the example above, you may find that estate planning services save your loved ones a great deal of money in the long run. After all, an invalid estate plan—or worse, no estate plan at all—can mean paying for professional fees, taxes, and court costs in the future.

In addition, however, experienced estate planning attorneys may even be able to save you more money. Because they understand the financial implications of your decisions and the nuances of the law, they may be able to find tax and financial benefits that work in your favor.

Beyond financial savings, an estate planner can save you time and energy as well.

Drafting an estate plan can be a complex and headache-inducing task if you aren’t familiar with the process. Even if you have a legal background or an estate planning organizer in hand, struggling through legal nuances can be hard on your own. In addition, researching the minute details of will planning or establishing power of attorney alone can take hours, days, or even weeks.

Worse, it’s difficult to tell if you’ve drafted the plan correctly in the end. The tiniest details of a phrase can undo an estate plan, and the law changes all the time. After all, this is why keeping track of the current legal requirements is a full-time job!

Save yourself time and energy by partnering with a professional who can do the job right in much less time than you’d manage on your own.

A Lawyer Can Plan for Complex Situations

If your current financial situation or family dynamic is complex, it may be even more difficult to draft an estate plan. Here are just a few common situations where a lawyer’s advice can help:

  • You recently went through a divorce or lost your spouse
  • You want to leave some of your estate to charity
  • You own a business
  • You own property in multiple states
  • You have minor children or no children at all
  • You have family members with special needs or specific medical conditions
  • You have a significant amount of money in retirement accounts

In cases like these, you’ll want to make sure an expert drafts a plan to carry out your final wishes. Otherwise, choices about dividing your assets may be left to the state instead.

An Objective Third Party Provides Unbiased Advice

The primary reasons why people seek out a lawyer are for their experience and expertise. However, an estate planning lawyer can be helpful in another significant way: they’re objective.

All of us have an emotional attachment to our property and finances. It’s part of being human. However, our subjective attachments can do us more harm than good in certain situations.

When it comes to estate planning, an attorney can be a great unbiased resource when you need it most. Whether you’re not sure which family member to leave your individual assets to or you struggle with the idea of setting up a medical directive, an attorney can offer helpful insights and advice.

Partner With Our Team of Experts

Ultimately, the decision about estate planning is clear: an attorney can be a great help. From updating your will to establishing a comprehensive estate plan, an expert can make sure your documents protect your property and your loved ones.

Our team has a wealth of experience serving clients throughout the Greenville area, and we’d love to help. Reach out to learn more about our estate planning services, or set up a no-obligation consultation to hear what we can do for you.

A Beginner’s Guide to Living Trusts: Everything to Know

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There are many reasons to consider living trusts as a beneficial estate planning device. Reducing estate taxes and having additional control over when and how assets are transferred to beneficiaries are just two of them.

People also use them to manage their assets while they are alive and take advantage of the other benefits. Living wills can help keep your estate out of probate. It can also help ensure you are taken care of during your lifetime in the event you become mentally or physically incapacitated.

Read on to discover why creating a living trust might be a good addition to your estate plan.

What Is a Living Trust?

A living trust is an estate planning document you create that will transfer assets to your trust which will be transferred to your beneficiaries after you pass on.

Unlike a will, which takes effect upon your death, a living trust takes effect once you have signed the document. Your trust becomes the owner of your property and the trustee you designate will disburse your assets to your beneficiaries at the time of your death.

Types of Living Trusts

Living trusts can be either revocable or irrevocable.

Revocable trusts can be changed or dissolved prior to your death. This is important since it allows you to change or add beneficiaries. You can also add or remove property from the trust and change the name of successor trustees.

Irrevocable trusts cannot easily be changed or dissolved. Changes often need all the beneficiaries to agree and this can sometimes be difficult to obtain. Irrevocable trusts are often used to protect assets against taxes and creditor claims.

Who Should Be Your Trustee?

If you create a revocable trust, it makes sense to name yourself as the trustee provided you don’t have a health concern that may make your incapacitated. However, you can also name yourself as trustee and name a successor trustee in the event you are no longer able to act as trustee.

If you create an irrevocable trust, it’s advisable to name someone other than yourself as the trustee. One of the benefits of living trusts that are irrevocable is that they can help protect your assets from creditors. Naming someone other than yourself as a trustee can provide weight to show that the trust wasn’t created for less than ethical purposes.

Finding a trustee to name should be well thought out. Picking someone with financial experience who can work well with your beneficiaries is essential.

The person you name doesn’t have to be a lawyer or financial adviser, but they need to be someone who knows how to get advice on issues that arise when they need help, such as with estate taxes and property transfers.

How Are Beneficiaries Affected?

Normally, when a person creates a will, the named beneficiaries inherit as soon as the estate gets disbursed. This is usually a short time after your death.

With a living trust that gets managed by a trustee, beneficiaries can benefit at whatever point your trust indicates. So, for instance, if you would like for a child or grandchild to inherit when they become a particular age or after they complete college, you can do that.

Or, a living trust can also be set up to disburse assets to beneficiaries over time, rather than as one lump sum.

Living trusts can live on for as long as there are trust assets. So you can set up beneficiaries, such as your children, to use assets during their lifetime, while the trust retains ownership. By doing so, you can ensure property and other assets remain available for use by future generations.

Benefits of Living Trusts

There are benefits to both types of living trusts. The wording in the trust will dictate your right to use the property while you are alive. But you do lose management control when you create an irrevocable trust.

Your loss of control in an irrevocable trust comes with some benefits. Your estate taxes can be lowered and the assets can be protected against claims from creditors. It can even protect the assets from a spouse during a divorce.

Other Important Estate Planning Documents You May Need

It is common that people need more than just a will or a living trust to completely cover their estate planning needs. It is important to discuss your particular financial and medical situations with your attorney. This way you can be sure you are covered for events that may arise in your lifetime.

Durable powers of attorney give a person you designate the right to make decisions for you if you become unable to make those decisions for yourself. For these to be effective, you need to set these up while you are legally competent. Keep in mind that so long as you remain competent, you will keep control to make these decisions for yourself.

There are durable powers of attorney that are specifically for either financial or medical decisions. So you can create one or both of these. You can name different people to handle each type of matter for you or you can name the same person for both.

How To Do a Living Trust in South Carolina?

1. Define Your Estate Planning Goals

Before you begin drafting any documents, take time to consider your overall estate planning objectives. What do you want to achieve with your assets? Do you have specific beneficiaries in mind? Are there any minor children or individuals with special needs you need to provide for? Do you want to minimize taxes or protect assets from creditors? Clearly defining your goals will help you and your attorney determine if a living trust is the right tool for you and what type of trust best suits your situation.

2. Inventory Your Assets

Make a comprehensive list of all your assets. This includes tangible items like real estate (your home, vacation properties), vehicles, and valuable personal property (jewelry, art), as well as intangible assets like bank accounts, investment accounts (stocks, bonds, mutual funds), life insurance policies, and business interests. Knowing what you own is crucial for determining which assets should be placed into the trust.

  1. Choose the Right Type of Trust

While this guide focuses on living trusts, it’s important to be aware that there are different types of trusts, each with specific purposes. The most common type of living trust is a revocable living trust, which allows you to retain control and make changes during your lifetime. Irrevocable trusts, on the other hand, are generally unchangeable once established and are often used for specific tax planning or asset protection strategies. An estate planning attorney can help you determine which type of trust aligns with your goals.

4. Select a Trustee and Successor Trustee(s)

As the grantor, you will typically serve as the initial trustee of your revocable living trust. However, you must carefully select one or more successor trustees. This person or institution will manage and distribute your assets according to your instructions if you become incapacitated or after your death. Choose someone you trust implicitly, who is financially responsible, and who can communicate well with your beneficiaries. It’s often a good idea to name at least one alternate successor trustee.

5. Identify Your Beneficiaries

Clearly identify who will receive your assets from the trust. You can name primary beneficiaries and contingent beneficiaries (who will receive assets if the primary beneficiaries predecease you). Be precise in your descriptions to avoid any ambiguity or disputes.

6. Draft the Living Trust Document

This is the legal document that formally creates the trust. It will outline your wishes regarding asset management and distribution, name your trustee and successor trustees, and specify your beneficiaries. While online resources and templates exist, it’s generally recommended to have an attorney draft this document to ensure it complies with South Carolina law and accurately reflects your complex intentions. South Carolina law states that a trust must be in writing if it concerns real property. While oral trusts for personal property are permitted, they require clear and convincing evidence.

7. Sign and Notarize the Trust Document

Once the trust document is drafted, you, as the grantor, must sign it. While South Carolina law does not strictly require witness signatures or notarization for a valid revocable trust, it is standard practice and highly recommended to have the document notarized. If you appoint someone other than yourself as the initial trustee, they should also sign to indicate their acceptance of the role.

8. Fund the Trust

This is a critical step and often overlooked. For a living trust to be effective, you must transfer ownership of your assets into the name of the trust. This is called “funding” the trust. Simply creating the trust document is not enough. Assets that typically go into a living trust include:

  • Real estate (by changing the deed to reflect the trust as the owner)
  • Bank accounts
  • Investment accounts
  • Business interests
  • Valuable personal property

Assets like retirement accounts (e.g., 401ks, IRAs) and life insurance policies typically have designated beneficiaries and are often not placed directly into the trust, though the trust can be named as a contingent beneficiary. Your estate planning attorney can guide you through the process of re-titling assets to ensure they are properly funded into your trust.

9. Review and Update Periodically

Life circumstances change, and your living trust should evolve with them. It’s crucial to review your trust regularly, typically every three to five years, or whenever significant life events occur, such as:

  • Marriage, divorce, or remarriage
  • Birth or adoption of children
  • Death of a beneficiary or trustee
  • Significant changes in your assets or financial situation
  • Changes in state or federal tax laws

Regular reviews ensure your trust remains up-to-date and accurately reflects your current wishes. Revocable trusts can be amended or restated (meaning a new trust is created that supersedes the old one) to reflect these changes.

Discuss Your Estate Planning Options

Schedule an appointment to talk to your lawyer about living trusts and estate planning options that are available to you. No matter what the size of your estate is you should have an estate plan in place.

Contact us to set up a time to discuss your options. We can help you decide whether a living trust is right for you.

Asking for Emergency E-Witnessing and Notarizing in South Carolina

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Photo by Kelly Sikkema on Unsplash  

South Carolina currently prohibits remote witnessing of legal documents. In order to properly execute estate planning documents and other legal documents, the witnesses must be within a few feet of the person signing the documents. This rule makes sense and is in place for a variety of reasons.  In person, it is easier to determine the mental state of the person signing and to ensure there is no duress or coercion by a third party.

 

As this pandemic continues, many States are issuing stay at home orders for all residents and restricting people from leaving their homes except to purchase food and essentials. I expect, in an effort to reduce infections, South Carolina will soon join the States who already have a mandatory stay at home order.

 

Many of my clients cannot leave their homes because they suffer from a condition that makes them more vulnerable to dying from the COVID-19 virus. With clients with medical conditions that prevent them from coming to my office, I would normally go to their homes to discuss their estate plan and execute documents. Since they cannot leave their homes or have visitors, people who are self-isolating cannot execute legal documents.

 

For these clients, I feel extremely helpless. I want to help them but the circumstances we are currently in prevent it. I’m sure you have felt helpless at some point during this crisis too.  But there is something you can do. I, along with many other attorneys and legal professionals, have reached out to our Governor to ask him to temporarily relax the rules for witnessing legal documents and allow for remote witnessing. Many of us use Zoom and Skype to stay connected with teachers, friends, family and co-workers.  By allowing remote witnessing and notarizing, we can still provide these essential legal services and do our part to stop the spread of this virus. If you are interested in helping, please email Governor McMaster by clicking on this link, governor.sc.gov/contact-governors-office, and ask him to allow remote witnessing of legal documents.  Thank you so much for your help.

 

Additional Resources: From wills to home sales, SC lawyers are asking for emergency remote notary measures

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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