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Estate Planning

4 Important Questions to Ask Before Making a Living Will

November 16, 2018/in Estate Planning, Resources

End of life care is very controversial, regardless of the fact that many people prefer to have the power to end their life however they choose. These are difficult and emotional conversations to have with the people you love, so it’s important to hash things out before they get difficult.

Making a living will is hard but necessary to do when you’re living with a potential illness or simply reaching an advanced age.

Here are four common questions that people have about living wills.

1. What Is an Advanced Healthcare Directive?

When you put together an advanced healthcare directive, you’re composing an outline and a contingency plan for what to do if your health fails. A living will describes what medical and treatment choices should be considered if you become very ill.

When you are too sick to make your own choices about your healthcare, it’s up to the executor of your estate, your spouse, or your next of kin to make choices. If you’ve put together a living will, you’re arming them with a document about what choices you would make. Rather than having to leave them guessing, you can guide them.

If you have ethical or personal preferences for end of life care, you can make that known now. If you’d prefer someone other than your spouse or partner make those decisions, you can appoint them. One of the reasons for a living will is the awareness that your loved ones might not be able to make those decisions.

For anyone who prefers not to be kept alive with an artificial breathing apparatus, that can be decided on a living will. A living will is important for determining who will be appointed with power of attorney in the event of illness.

2. When Does It Go Into Place?

If you appoint power of attorney to someone, you give them the ability to make your choices regarding healthcare. These documents will be written in language that physicians can understand clearly. They’ll outline which treatments you prefer and which you don’t.

If you’re incapacitated in such a way that you can’t consent to what you want or what treatment you prefer, you’ll need a document like this to communicate.

There are legal standards to determine when you’ll be considered able to communicate on your own. If you’re terminally ill or unconscious, doctors will use medical standards to determine your ability to consent. If you’re in a permanent coma, your living will can guide treatment.

Talk to the person who has your power of attorney and be sure they that understand what you’re requesting. Don’t leave anything up to question by being as clear as possible.

3. What If A Living Will Isn’t Created?

In the absence of a living will, every state has a plan in place. The person who will be appointed to make decisions for you will be described clearly by law.

For minors and children, the person with power of attorney is most likely going to be the parent or guardian. For married people, their spouse will be considered the “next of kin” by law.

When families are fractured or when members disagree about what should be done in response to medical care, this can cause problems. If you find that your family doesn’t agree with your decision to terminate life support under certain conditions, you need to appoint a third-party.

This can be a friend, an attorney, or a professional colleague depending on your relationship to them. You might prefer to choose someone who is able to make unemotional decisions based on a legal document. This is much easier for someone you have no familial relation to than someone you do.

Some people avoid a living will because of a misconception that it means no treatment will you’ll get. It means the exact opposite. With a living will, you’ll get all of the treatment that you require under the conditions of comfort and care that you hope for.

4. Can I Change My Mind?

Of course: you can change the person who is given the power of attorney whenever you’d like. So long as you’re clearly able to make decisions, you can change this person at any point.

As you get older or closer to the more dramatic symptoms of an illness, the ability of loved ones to make decisions will change. They might raise their doubts to you or bring up the fact that they could never “pull the plug”.

This is hard to hear if you’ve put your faith into them, but you should take them seriously. The people around you may need to have their name taken off these documents, as hard as that might be to take.

You’ll have to start by destroying old documents affording power of attorney to friends or family. You’ll then have to draw up new documents that get distributed to the new people with power of attorney.

New forms will then need to be quickly sent to relevant parties. Your healthcare provider, friends, family, and hospital will need the updated forms. This way you’ll be able to have changes made in time.

Your hospital or healthcare provider will be able to give you these documents. It’s smart to fill out these forms in advance. If you already have an attorney, they’ll be able to provide you with these forms in advance.

Making a Living Will Is a Struggle

Making a living will be the hardest part of your end of life care. Once it’s made, you can relax knowing that your care is administered the way that you demand it. Your living will is a way to reassure you that you’ll get everything you demand when it comes to getting the comfort you deserve.

If you need help putting together your living will, contact us for more tips.

5 Powerful Estate Planning Forms You Need Today

November 7, 2018/in Estate Planning, Resources

Thinking about death may be the last thing you want to do.

But maybe it’s the first thing you should do, going forward.

Research shows that over half of people in the United States do not have comprehensive estate plans in place. But that doesn’t mean you have to be a part of this statistic.

Estate planning forms protect you, your family, and all of your assets in the event of your death. And no matter how young you are, let’s face it — death can strike at any moment.

Here’s a rundown on five estate planning forms you shouldn’t go another day without.

Let’s get started!

1. Important Estate Planning Forms Include the Will

Last wills and testaments are legally binding documents that outline who will get certain assets of yours when you die.

Your will is one of the most essential parts of any estate plan. If you don’t have a will in place at the time of your passing, then your state will end up determining how your assets will be distributed.

In other words, the state gets the last say in what happens to the assets you’ve worked so hard to accumulate over the course of your life — not you.

This is a problem because you may, for instance, have certain individuals you’d like to exclude from the distribution of your assets. Or maybe you’d like to be extremely specific about which individuals should receive what.

In your will, it’s also critical that you appoint somebody to be your estate’s executor or your legal representative. This person will help with carrying out your wishes listed in your will.

Furthermore, if your children are minors, a will allows you to name a guardian for them when you pass away.

Keep in mind, though, that wills cover only probate property — property that must go through the court probate process. Other types of property — those with named beneficiaries — do not go through probates, such as life insurance, your 401(k) and your Individual Retirement Account.

2. Living Trust

Living trusts are also beneficial components of estate plans because a trust can help you with managing your estate not just after your death but also before it.

In addition, a trust can help your estate to avoid the probate process, which can be lengthy and costly.

With a trust, you’ll appoint somebody to serve as your trustee, who’ll manage the items you have in your trust. You’ll also name beneficiaries to receive the assets in your trust once you pass.

Setting up a trust can save your beneficiaries a great deal of money and time when you pass away. Some trusts also offer the advantage of coming with tax advantages for you and your beneficiaries. In addition, you can use a trust to protect your property from creditors so that you can qualify for Medicaid.

3. Financial Power of Attorney

Your financial power of attorney allows you to appoint somebody to handle your financial affairs in the event you become incapable of handling them yourself.

This is critical because if no power of attorney is set up, you’ll have no one to represent you. In this situation, a court could appoint a guardian or conservator to tackle your financial matters.

However, this court-appointed individual would constantly have to check with the court before making a move — an inconvenience that a power of attorney wouldn’t have to worry about. In addition, the person whom the court appoints may not necessarily be the type of person you’d like handling your affairs.

4. Advanced Health Care Directive

This document would be extremely important if you were ever to become incapable of making your own health care-related decisions.

An advanced health care directive establishes for you a living will, which documents which healthcare treatments you wish to receive or avoid when you near the end of your life.

For instance, let’s say you do not want to be resuscitated in certain circumstances. You can spell this out in your directive to make sure that your wishes are upheld.

5. Health Care Power of Attorney

This document allows you to designate somebody to serve as your representative if you cannot communicate decisions regarding your medical care.

Because this person essentially has your life in his or her hands, it’s paramount that you choose someone whom you trust to make decisions that are in your best interest.

Health care powers of attorney go farther than living wills in that they help people who are temporarily unconscious, for example. Meanwhile, living wills apply only to those who are permanently unconscious, terminally ill, or experiencing other types of end-stage conditions.

However, you could combine both of these types of documents into a single document.

Your health care power of attorney may be relatively broad or could explicitly limit the kinds of decisions that your chosen health care agent can make. It’s totally up to you.

How We Can Help

We are a leading law firm with extensive experience in helping clients to complete essential estate planning forms.

Many asset owners may be tempted to use do-it-yourself estate planning forms they find online. The problem with this is that you may fill out your forms incorrectly. On top of this, you may not effectuate your estate plan.

For instance, if you set up a trust, it’s not enough to simply draft a trust agreement. You also have to transfer your estate’s assets into your trust for it to work for you.

Because we understand the ins and outs of the estate planning process, you can rest assured that every “T” will be crossed and every “I” will be dotted with every document we create for you.

Get in touch with us to find out more about how we can help you to protect your property and loved ones’ best interests long term through well-thought-out estate planning.

Writing a Will? 10 Reasons You Need an Estate Attorney to Draft Your Estate Plan

September 10, 2018/in Estate Planning

Although there are many things you can DIY, a will is not one of them. Creating a will or estate plan is a complicated process. And even though you don’t have to hire a lawyer to create one, you’ll be glad if you do.

An estate attorney can help you navigate through the process and help you achieve your goals, so you can make sure your family is protected.

Here are 10 reasons why is a good idea to hire a lawyer.

1. They Know the Laws

Lawyers know the laws which why you need a lawyer when thinking about writing a will or estate planning.

Although it might seem like it’s easy to write down your wishes on your will or estate, there are very specific laws to what should be included in a will.

The last thing you want is for your family to have trouble with the will because a provision was missed.

Getting everything properly regulated on the will can save your family many problems in the long run.

2. It Gives You Control Over Your Properties

Some people might think a will is for rich individuals who own a lot of property, but this couldn’t be further from the truth.

Even if you only own one car or a house, you should protect it. If you don’t have an estate plan or a will, then you might leave your family fighting over what is yours.

What is worse, everything that once belonged to you will be in control of the state, who will determine who gets what.

Having a plan and a lawyer to help you with this is extremely important.

3. They Understand Complex Financial Issues

Having an estate plan or a will is not just about determining who gets your expensive jewelry, it’s also about determining many other financial responsibilities.

For example, who will pay your debts? Do you have a 401K or IRA account? Do you pay spousal support?

Those questions are one of the reasons why you need a lawyer when thinking about planning your will. They’re used to dealing with complex financial situations and can help you find a solution to those problems.

4. It Helps You Plan for The Unexpected

Although we all like to think we’ll make it to old age, life has other plans for us sometimes.

You never know when a tragedy might happen, so it’s important to get a lawyer who will help you think about the many possibilities.

A lawyer will help guide you through possible scenarios you never even thought about.

So you will be able to go day by day knowing you’re protected in case of the unexpected.

5. Avoid Paying Probate Costs

If you pass away without leaving a will, your estate is ceased by the state and has to go through the probate process.

This means, not only will your family has to deal with their grief, they will also have to spend some time in court.

If you get a lawyer to help you with your estate planning, you will be helping your family avoid probate court. Hiring lawyers and paying court fees will be financially taxing for them.

Consulting a lawyer to write your estate plan will give it more validity in front of a judge and save everyone time and money.

6. It Will Protect You In Case of an Incapacity

You have probably thought about who will get what in case of your death. But have you thought about who will make the decisions in case you’re incapacitated?

In the event of an accident or an illness that could lose your ability to make to make decisions for yourself, who would you designate?

A lawyer can present you with possible scenarios and you can figure out who you would give a power of attorney. If you wish to withdraw care in case you become paralyzed or need life support, you can talk about your wishes with your lawyer.

7. Your Family Will Be Protected

There’s nothing more scary to a spouse than thinking about their partner not being there for them.

When you create a will with your spouse and consult a lawyer, everyone will have peace of mind.

What if you’re the sole caregiver of your elderly parents? Thinking about you not being there for them is also a scary situation.

Fearing for the financial safety of your family is one of the reasons why you need a lawyer.

8. Your Family Is Growing

If you have started a family, you want to do everything in your power to make sure they’re protected.

The best way to do so if by leaving a plan behind in case anything happens to you. In case you’re no longer there for them, the last thing you want is for them to be and feel unprotected.

A lawyer can help you figure out who would get custody of your children and how to financially protect them in case of the unexpected.

9. What is The Size of the Estate?

Every estate is unique, and a one size fits all estate plan won’t do it justice. Lawyers have experience dealing with all kinds of estates and can offer you the best solutions to your problems.

Depending on the state where you live, you will have different taxes and expectations in the event you pass away. A lawyer can help you determine the best solution for your estate.

10. Someone to Help You Plan No Matter the Stage

Depending on your age and your assets, you will have more financial responsibilities. If you’re younger and don’t have a lot of assets, this doesn’t mean your estate is not important.

A lawyer can help you make an estate plan no matter the stage of your life. In fact, the sooner you start planning, the less work you will have to do at once.

Do You Need an Estate Attorney: The Bottom Line

If you’re thinking about creating a will, an estate attorney is essential to this process. They know and understand the law, they can help you no matter the size of your estate, and help you have peace of mind.

Are you in need of help with your estate planning? Visit us to learn more about our estate planning services.

How to Write a Living Will

September 4, 2018/in Estate Planning

Writing a living will isn’t exactly the most exciting thing in life to do, but it’s a necessary task to complete as you enter into old age. You never know which day will be your life, and you want to know when the day does come that your affairs are taken care of.

Part of this means leaving a clear set of wishes for your friends and loved ones to disperse your things. This is especially important if you have a large network of close people or if you have a lot of valuable assets. Maybe you have both, in which case, knowing how to write a living will is even more important.

Keep reading to find all the tips you need to get this done.

1. Write Your Wishes Down

Before you write the official document, make a rough draft. Write a simple list of all the things you have and the people you’d like to give them to once you pass.

Make sure you include everything no matter how big or small an object is. This includes your home, your car, your savings, furniture, collector’s items, and even your pets. You can break some assets up for a few people to share while others will have to go to one person.

Don’t forget your wishes can include details on how you’d like your funeral to be. You can also give some of your possessions to charitable organizations or large groups you’ve been involved in throughout your life – like alumni groups, community boards, or awareness communities.

2. Edit for Clarity

Once you have all your ideas laid out in front of you, you can start turning the list into something more formal. Make each bullet point you’ve written a line item in your living will. Don’t be afraid to include footnotes or comments wherever necessary.

In fact, this is encouraged. It provides a clear sense of direction, which is crucial to ensure that the ideas you have for your will are followed through. Remember, you won’t be around to offer insight when friends and family have to use your will.

As such, you have to get it right the first time. Imagine that a complete stranger read the document. If they did, would they be able to fully understand your wishes without any doubt?

3. Have a Witness

Another important part of writing a living will is to have a witness. This person also needs to sign off on your final draft. A witness can verify that you did indeed write your will and that no one else is making these decisions for you.

They cannot, however, interpret the will once you’re gone, which is why clarity is so important. If you like the thought of having someone offer guidance and direction when the matters of the will are being discussed, you have to officially authorize that individual.

4. Ask Someone Before You Authorize Them

Although authorizing someone to make decisions for you is a simple process, it can be a complex matter.

Think about it: you’re asking this person to fulfill your life’s last wishes. It’s a big task, especially if you give them little direction and just completely hand the reigns over. How are they supposed to know which decisions would please you the most?

You need to consider this matter carefully, then discuss it in full before authorizing someone. Not everyone is comfortable taking on such a big task. Not to mention, you want to choose someone who will be fair and straightforward to all the people in your life.

The last thing you want is to authorize an individual who is going to use personal preferences and experiences to determine who gets what. The person you authorize needs to be acting with your best interest in mind. And yes, this does matter even when you’re gone.

5. Leave Nothing to Interpretation

Whether you’re having trouble deciding who to leave your jewelry collection to or you don’t know if you want to authorize someone or not, you can’t leave anything up for interpretation. This will only create trouble, and who knows who will step up to fix it.

It’s up to you to ensure the post-death process goes well for all of your precious belongings. This includes your personal assets as well as the people in your life. When you learn how to write a living will, you’re really doing an act of service for the people you love.

A living will means there’s not much for people to figure out once you’re gone. Instead, you’ve done all the hard thinking for them and left clear, concise instructions for them to move forward.

If you’re worried about being redundant, remember, there’s no such thing as being to clear. It’s better to repeat things once or twice than to leave certain matters up to fate.

How to Write a Living Will: Get Legal Counsel

The final thing to consider when figuring out how to write a living will is whether or not you need professional advice. Here’s a tip: you do!

You need a lawyer at the very least. This person can help you ensure your wishes will be followed as desired. They’re there to offer you counsel while writing the will and to make it official once you’re done explaining everything.

Some people even go as far as to consult accountants and business partners when writing their will, too. This is a smart move if you’re involved in any sort of legal partnership or if you have a lot of assets to give away.

To access the legal counsel you need for your living will click here.

A Guide to Understanding the Different Types of Power of Attorney (Updated for 2025)

July 31, 2018/in Estate Planning, Real Estate

Studies show that your ability to solve simple math problems and handle financial matters may be the first skills that get harder as you age.

Do any of these individuals need to sign some kind of power of attorney?

Adams has no close relatives, lives alone, and is due for a major operation in a couple of weeks
Thomas has Lou Gehrig’s disease
Mrs. Jones will be abroad for the next 8 months but need to sell their house
Collins runs a thriving business, is single, and has no economic or medical concerns

The answer is certainly yes. They all need to. A power of attorney refers to a document that authorizes you to appoint an organization or individual to run your affairs if you’re not able to do so.

Understanding Powers of Attorney in South Carolina

A Power of Attorney (POA) is a fundamental legal document that plays a crucial role in effective estate planning and personal financial management in South Carolina, much like it does elsewhere. It is a powerful tool that allows an individual, known as the “Principal,” to grant legal authority to another person, the “Agent” or “Attorney-in-Fact,” to act on their behalf. This authority can range from handling specific one-time transactions to managing all of the Principal’s affairs. Understanding the different types of POAs and the specific legal requirements in South Carolina is essential for creating a document that effectively serves your needs and provides peace of mind.

The core purpose of a Power of Attorney is to ensure that someone you trust can manage your affairs when you are unable to do so yourself.

This inability might arise from various circumstances, including physical or mental incapacity due to illness or injury, extended travel, military deployment, or simply a matter of convenience for managing distant assets or complex transactions. Integrating a well-drafted Power of Attorney into your overall estate plan is a cornerstone of preparedness, allowing for seamless management of your personal, financial, or even healthcare matters without the need for potentially cumbersome and expensive court intervention like guardianship or conservatorship.

Let’s delve deeper into the various types of Powers of Attorney and their implications, with a specific focus on the legal landscape in South Carolina.

The General Power of Attorney

As the name suggests, a General Power of Attorney typically grants broad authority to the Agent to handle a wide range of affairs on behalf of the Principal. The scope of power is comprehensive, empowering the Agent to step into the Principal’s shoes for most legal and financial matters. In South Carolina, the specific powers granted must be clearly enumerated in the document. Common powers typically included in a General Power of Attorney empower the Agent to:

Handle banking transactions: This includes depositing checks, withdrawing funds, managing accounts, and opening or closing accounts.
Sell and buy property: The Agent can buy or sell assets like vehicles, furniture, or other personal belongings.
Manage, sell, mortgage, or buy real estate: This is a significant power allowing the Agent to deal with real property interests, including signing deeds, mortgage documents, and leases.
File tax returns: The Agent can prepare, sign, and file state and federal income, gift, or other tax returns.
Manage government benefits: This involves handling matters related to Social Security, Medicare, Medicaid, veteran’s benefits, or other government programs.
Gain access to and manage safe deposit boxes: The Agent can access the Principal’s safe deposit box and manage its contents.
Enter into contracts: The Agent can sign contracts on behalf of the Principal for various purposes.
Settle claims: This includes the authority to negotiate and settle legal claims or disputes.
Purchase and manage life insurance: The Agent can buy or manage life insurance policies, including paying premiums or accessing policy values.
Exercise stock and bond rights: The Agent can manage investment accounts, buy or sell securities, and exercise associated rights.

Beyond these common powers, a Principal in South Carolina can choose to grant additional, often more sensitive, powers. These “optional” powers must typically be explicitly listed and sometimes even require the Principal’s initials next to each power to indicate they are specifically intended. These may include:

The power to make gifts: This power allows the Agent to transfer the Principal’s assets as gifts to individuals or charities. South Carolina law, particularly under the Uniform Power of Attorney Act (SCUPAOA), requires specific authorization for gifting, often limited to certain amounts or in accordance with the Principal’s past gifting patterns or estate plan. Without explicit authorization, an agent’s power to gift is generally limited.
Permission to maintain business interests: The Agent can operate, manage, or sell the Principal’s business holdings.
Permission to hire professional assistance: The Agent can hire attorneys, accountants, or other professionals to assist in managing the Principal’s affairs.
The power to transfer assets to or from revocable living trusts: This power is critical if the Principal uses a living trust as part of their estate plan. The ability to fund or amend the trust is often crucial if the Principal becomes incapacitated. South Carolina law requires specific authorization for powers related to trusts.
The power to change beneficiary designations: This is a very significant power, allowing the Agent to change beneficiaries on life insurance policies, retirement accounts, or other assets. SCUPAOA requires explicit authorization for this power.
The power to delegate authority: Allows the agent to appoint another person to act on the principal’s behalf for certain matters. This also requires specific authorization in South Carolina.
The power to waive the principal’s right to be a beneficiary: Allows the agent to decline an inheritance or gift on behalf of the principal. This power requires explicit authorization under SCUPAOA.
Access to digital assets: With increasing importance, granting the agent access to online accounts, social media, emails, and other digital assets is becoming common and requires specific language in South Carolina.

The extent of authority granted in a General Power of Attorney is entirely at the discretion of the Principal, but it must be clearly and unambiguously stated within the document to be valid under South Carolina law.

The Durable Power of Attorney

This is arguably the most important type of financial Power of Attorney for incapacity planning in South Carolina. The term “Durable” signifies that the authority granted to the Agent remains effective even if the Principal becomes incapacitated (mentally or physically unable to manage their own affairs).

Under the South Carolina Uniform Power of Attorney Act (SCUPAOA), which governs financial powers of attorney in the state, a power of attorney is presumed to be durable unless the document explicitly states that it is terminated by the Principal’s incapacity. This is a significant point of law in South Carolina – if your financial POA does not specifically say it’s non-durable or terminates upon incapacity, it is automatically considered durable.

The critical importance of durability lies in the very scenario a POA is often intended to address: the Principal’s loss of capacity. Without the “durable” language (or the statutory presumption of durability in SC), a traditional General Power of Attorney terminates automatically upon the Principal’s incapacity because the Agent’s authority is tied to the Principal’s ability to act. If the Principal is legally unable to act (due to incapacity), the Agent also loses the authority to act on their behalf. This is where a non-durable POA falls short for incapacity planning.

A Durable Power of Attorney ensures that your chosen agent can continue to manage your finances, pay your bills, access your accounts, and make necessary transactions even if you are in a coma, suffer from advanced dementia, or are otherwise incapacitated.

Because a Durable Power of Attorney grants such significant authority that survives your potential incapacity, choosing an agent you trust implicitly is paramount. The Agent will have the legal power to act on your behalf without your direct oversight if you are incapacitated. While South Carolina law imposes fiduciary duties on the agent (requiring them to act in your best interest), the potential for misuse exists, highlighting the critical need for trust and careful selection of your agent.

As an added layer of precaution or planning, a Principal can choose to make their Durable Power of Attorney a “Springing” Power of Attorney, which we will discuss next.

The Non-Durable Power of Attorney

In contrast to a Durable Power of Attorney, a Non-Durable Power of Attorney automatically terminates if the Principal becomes incapacitated. Under South Carolina law, this would be the default only if the document explicitly states that it is not durable or terminates upon the Principal’s incapacity, contradicting the statutory presumption of durability under SCUPAOA.

A Non-Durable Power of Attorney is typically used for a specific, limited purpose or a defined period. For example, you might grant a Non-Durable Power of Attorney to allow someone to sell a specific piece of property for you while you are out of the country, or to manage your affairs for a few months while you are traveling. Once the transaction is complete, the specified period ends, or if you were to become incapacitated during that time, the authority granted by the Non-Durable POA terminates. It is not suitable for long-term planning for potential incapacity.

The Limited / Special Power of Attorney

A Limited, or Special, Power of Attorney grants the Agent authority to act only in specific, clearly defined circumstances or for a single transaction. Unlike a General POA, which is broad, a Limited POA is narrow in scope.

This type of POA is frequently used when the Principal needs someone to handle a particular matter because they are unable to do so themselves due to illness, absence, or scheduling conflicts. The Agent’s authority is strictly limited to the actions listed in the document. Once the specific task is completed or the defined event occurs, the power typically terminates.

Common uses for a Limited Power of Attorney in South Carolina might include granting authority to:

Sell a specific vehicle.
Close on the purchase or sale of a particular piece of real estate.
Access a single bank account to pay specific bills.
Manage business interests for a defined period.
Collect a specific debt owed to the Principal.
Make specific financial decisions related to an investment.

The advantage of a Limited Power of Attorney is that it restricts the Agent’s authority, offering greater control to the Principal. It can be made durable or non-durable, depending on the Principal’s needs and the specific language used, though for a single transaction, durability is often unnecessary.

The Springing Power of Attorney

A Springing Power of Attorney is a type of Power of Attorney that does not become effective immediately upon signing. Instead, it “springs” into effect only when a specific future event, known as the “triggering event,” occurs.

In South Carolina, a Springing Power of Attorney is permissible under SCUPAOA. However, the triggering event must be clearly defined and objectively ascertainable within the document. Common triggering events include:

A specific date occurring.
The Principal reaching a certain age.
Most commonly, the Principal’s incapacity, as certified by one or more licensed physicians.

The appeal of a Springing Power of Attorney is that it allows the Principal to retain full control over their affairs until and unless a specific event, often their incapacity, occurs. This can be reassuring for individuals who are hesitant to grant immediate broad authority to an agent.

However, Springing Powers of Attorney can present practical challenges in South Carolina. Proving that the triggering event has occurred can sometimes be difficult or involve delays. For instance, if the trigger is incapacity, financial institutions or healthcare providers may require specific documentation, such as a doctor’s letter or affidavit, confirming the Principal’s incapacity before they will honor the Agent’s authority. This requirement can sometimes hinder the Agent’s ability to act quickly in an emergency. For this reason, many estate planning attorneys in South Carolina recommend an immediately effective Durable Power of Attorney rather than a Springing one, provided the Principal has chosen an agent they deeply trust.

The Medical Power of Attorney (South Carolina Healthcare Power of Attorney)

Separate from financial powers of attorney, a Medical Power of Attorney, formally known as a Healthcare Power of Attorney in South Carolina, is a critical document for healthcare planning. This document allows you to designate an agent (sometimes called a healthcare agent or healthcare proxy) to make medical decisions on your behalf if you are unable to make or communicate those decisions yourself due to illness, injury, or incapacity.

In South Carolina, the requirements for a valid Healthcare Power of Attorney are distinct from those for a financial POA. While a financial POA primarily requires notarization under SCUPAOA, a Healthcare Power of Attorney in South Carolina requires:

Written document: It must be in writing.
Signed by the Principal: The Principal must sign and date the document (or have someone sign on their behalf in their presence and at their direction).
Witnessed: It must be signed by two witnesses. South Carolina law specifies criteria for these witnesses. Generally, at least one witness cannot be an agent, a relative by blood, marriage, or adoption, or an employee of the Principal’s healthcare provider. Witnesses typically attest that the Principal appeared to be of sound mind and signed voluntarily.

The Agent appointed under a South Carolina Healthcare Power of Attorney has the authority to make decisions about medical treatment, surgical procedures, medication, admission to healthcare facilities, and other healthcare matters, based on your known wishes, if any, or otherwise in your best interest.

It’s important to understand that in South Carolina, most healthcare providers directly involved in your care and employees of your healthcare facility are legally prohibited from serving as your Healthcare Power of Attorney agent unless they are related to you.

A Healthcare Power of Attorney works in conjunction with, but is separate from, other healthcare directives like a Living Will in South Carolina. A Living Will typically addresses your wishes regarding life-sustaining treatment in the event of a terminal condition or persistent vegetative state, while the Healthcare Power of Attorney gives broader authority for other medical decisions and situations of temporary or permanent incapacity.

The Financial Power of Attorney

While the term “Financial Power of Attorney” isn’t a distinct type in the same way “Durable” or “Limited” are, it’s often used to specifically refer to a Power of Attorney that grants authority solely over the Principal’s financial affairs, as opposed to healthcare matters. In South Carolina, a Financial Power of Attorney would be governed by the SC Uniform Power of Attorney Act (SCUPAOA) and would typically be made durable to be effective during incapacity.

This document would encompass the powers listed under the General Power of Attorney section, focusing exclusively on financial, business, and property matters. Its purpose is to ensure seamless management of monetary affairs should the Principal become disabled or unable to express their wishes.

The Agent for a Financial Power of Attorney in South Carolina can be a trusted family member, friend, attorney, accountant, or other individual with the integrity and capability to manage financial matters responsibly.

The Childcare Power of Attorney (South Carolina Delegation of Parental Authority)

In South Carolina, there is a legal mechanism that functions similarly to what might be called a “Childcare Power of Attorney” in other contexts. This allows a parent or legal guardian to temporarily delegate certain parental powers regarding the care, custody, and property of their minor child to another person.

This is particularly useful when a parent needs to leave their child in the care of a relative or trusted friend for a period due to travel, illness, military deployment, or other reasons. The delegated powers typically include making decisions related to the child’s:

Emergency medical treatment.
Education (enrolling in school, discussing academic matters).
General care and well-being.

South Carolina law has specific requirements and limitations for such delegations. Generally, a written and signed document is required, often needing notarization. There are also limitations on the duration of such temporary delegations, typically limited to a certain number of months (e.g., six months), though extensions may be possible under specific circumstances defined by statute. This mechanism provides the temporary caregiver with the legal authority needed to make necessary decisions for the child in the parent’s absence without requiring formal guardianship proceedings.

Wrapping Up Types of Power of Attorney

A power of attorney exists to protect those who can’t protect themselves, with their nearest and dearest by their side.

Understanding the various types of power of attorney discussed above can make most of your decision making easier and more comfortable in otherwise rough times.

For more information about power of attorneys, estate planning, and other legal matters, get in touch with De Bruin Law Firm today. Contact us today to learn more about our services.

10 Steps to Making a Will — And Why You Need a Lawyer to Help

June 13, 2018/in Estate Planning

Have you written your will yet? If the answer is no, this is something you should not ignore.

Every adult should have a written will to protect their assets and family from the unexpected

If you think making a will is complicated, we’re here to help. Keep reading to learn how.

1. Understand Why You Need a Will

There’s a common misconception you need to be rich in order to make a will. However, failure to do so will result in a difficult time for your loved ones in the event of your passing.

Maybe you don’t have millions of dollars or many properties, but you still need to designate who will keep your possessions.

A will dictates your last wishes. If you promised your younger brother your motorcycle but don’t leave a will, who is to say there won’t be many family disputes over it.

Having a will is important for any person, not just rich individuals.

2. Inventory Your Estate

Making an inventory of your material possessions is quite simple. If you have a living spouse, you could simply leave any properties, trusts, and insurance policies to your spouse.

Then if you want to leave other material possessions to other family members, you should specify it in the will. This part is simple, but it does get a bit tricky when you have more financial affairs.

You might not be aware of other aspects that should be included in the will. Consulting a lawyer is the best way to get some guidance on things like trust accounts, insurance policies, 401K or IRA accounts, and more.

A lawyer will ensure there are no loopholes left when you make the inventory of your estate.

3. Appoint an Executor

You will need to appoint an executor. An executor is not necessarily a beneficiary, it can be anyone you fully trust.

The job of an executor is to ensure your last wishes are fulfilled when you pass away. Your executor will distribute the property, pay the taxes, and perform other legal duties on your behalf.

If you don’t have a family member or friend to be the executor, you can leave it in the hands of your lawyer.

4. Decide Who Will Get Custody of Your Kids

If you have underage children, it’s even more important you have a will. In order to avoid your children ending up without a guardian, or with the wrong one, you should appoint on in your will.

Remember, the person you pick to be your guardian should be fully aware of the commitment.

Pick a relative or close friend who you trust and will match your parenting style and values.

5. Designate a Power of Attorney

If you decide to draft a will, you should also designate a power of attorney.

A power of attorney is someone who will act on your behalf should you become physically or mentally disabled and unable to make your own decisions.

Whoever you designate will have the financial responsibility of paying your bills, managing debts, and other critical financial decisions you’re unable to make for yourself.

Consult an attorney to get more information or what kind of power of attorney you would need.

6. List All Your Debts

In the event of your passing, your debts don’t go away. Since your executor will be the person responsible for paying all of your debts, you should leave them a list to guide them in the process.

Make a detailed list of all your financial obligations including car loans, mortgages, credit cards, medical bills and more.

7. Choose Your Beneficiaries

If you have a simple family dynamic, your estate will probably go to your spouse or children. At least that is how a judge would decide it if you don’t leave a will behind.

If this is your wish, you should leave a will to make sure is in writing an no one can try to take from your family what is rightfully theirs.

However, if you don’t have immediate family or are estranged, you should designate a beneficiary. In doing so, it will speed up the probate process.

8. Pick a Place for Your Will

Your will is an important legal document, therefore, you need to make sure store it in a safe place.

Leaving it in one of your drawers at home is not a good idea. In a will, you included your last wishes and should only be read in the event of your passing. No one should have access to this document.

It should be stored in a fireproof place away from prying eyes, like a bank safe deposit box. Just make sure someone you know knows the location.

9. Review and Update Your Will

Once a copy of your will is drafted, you have to make sure it says what you meant for it to say.

This is the time to make changes and be as specific as possible.

Even once your will is done, you’re not done with it. You should pull your will out of the safe place where you keep it to review and update it.

You should aim to pull your will out of hiding every four to five years just to verify those are still your wishes.

If you fell out of touch or someone you included in your will passed, then you want to make sure they’re removed from the will.

10. Don’t Forget the Importance of a Lawyer

Although there are some will DIY resources, hiring a lawyer to write your will is one of the safer choices.

Hiring a lawyer means there will be no confusion on your will because they know the law and know how to navigate complex cases and situations.

Making a Will Doesn’t Have to Be Difficult

Making a will is not only for rich people. If you have belongings, property, or children, is a smart move to leave a will behind.

A will is the record of your final wishes and it’s important you leave those instructions in the right hands. Are you in the South Carolina Area and would like help in your estate planning? Don’t hesitate to contact us.

Probate Litigation: How to Deal With Estate Disputes

February 13, 2018/in Estate Planning

It is a sad, but true reality. All too often when people die, the loved ones they leave behind don’t only mourn them. They also get into heated battles over the deceased’s estate.

Probate litigation is one way of handling your loved one’s estate. The process can sometimes be lengthy and expensive. The right lawyer can speed things up and keep costs down.

Let’s look at what probate is, and how it can help.

What Is Probate Litigation?

Probate litigation is a legal process. This process determines what happens to an estate in the event of a death.

Some people never take the time to sit down and write up a will. In those cases, there is often little to direct what happens and who gets what. This leaves it wide open for squabbles to arise. Things can get heated very fast.

Even in cases where the decedent left behind a will, there can be disagreements. One or more parties may not be willing to accept the will as-is.

They may feel that the will treats them unfairly. Or they may think that someone tricked or coerced the decedent into making that draft of their will. Probate litigation is a process they can use to contest the will.

The problem with this is that all too often the lawyers are the only winners. Probate litigation can drag on for years. This eats up not only time but also resources.

That’s why you need a skilled lawyer. They can help to ensure that probate doesn’t drag out like this.

What Happens During Probate?

Now let’s take a look at the probate process step-by-step. Looking at it like this, it doesn’t seem too complicated.

The problem is that each step can take months to resolve. Some processes involve a lot of paperwork. Plus, many states have waiting periods that must be satisfied. This, of course, drags out the process.

Step 1: Take Inventory

The court will need a complete inventory of the decedent’s estate. The first step is making this inventory.

Everything that the decedent owned or owed needs to be in this inventory. Even items that the decedent co-owned with someone else needs to appear on this list. Someone trustworthy and meticulous will need to head up this step.

Step 2: Open the Probate Estate

The next step is to take everything to an attorney to open the probate estate with the probate court. The attorney will need to see all pertinent documents. Next, they will draft the paperwork to open the case.

The executor and all beneficiaries must review and sign the documents. Then the lawyer can file the paperwork to open the case. If there is not a will naming these individuals then this duty falls to the heirs at law.

Step 3: Find the Assets’ Values

The next step is to determine the value of all the assets. Bank accounts and whatnot are pretty easy. But for items like jewelry, art, and real estate you will need a professional appraiser.

All items must be listed at their value on the date of the decedent’s death. Thus you will need to provide financial institutions with the date of death. They can then issue a statement showing the value of the decedent’s accounts on that date.

Step 4: Pay Any Finals Bills or Other Expenses

The next step is to pay any final bills, taxes or other expenses of the decedent. There is always something to pay. Even if the decedent was current on everything else there will be death taxes to pay.

Sometimes there isn’t enough liquid cash available for this undertaking. In that case, the executor will need to choose an asset to sell to obtain the necessary cash.

Throughout this process, the executor must also keep the decedent’s ongoing bills current. Examples include mortgage payments, utilities, insurance, etc.

Step 5: Make Distributions

When all of this is finally done, it’s time for heirs to receive their parts. The court will have to decide who gets what. This can be a tricky process for obvious reasons.

At this point, there isn’t always a lot left. This is the reason why so many try to avoid probate. Every step of the way costs money.

But in cases where the heirs can’t agree this process can mitigate fights and bad feelings. Many a family has been torn apart by disputes after the death of a family member. Probate is expensive, but it can help alleviate those disputes.

Common Factors That Lead to Probate

Several factors increase the possibility that an estate will end up in probate court. Some of these are second marriages, sibling rivalry, and dysfunctional families. Bad blood has a nasty way of making it’s way to the surface at times like these.

It also occurs often when there is a non-standard will. You might think that having a will avoids all these familial problems at death. It helps a lot for sure, but it doesn’t always avoid probate.

Possible cases include where one child was cut out, or given less and wants to contest the will. Other instances might be leaving gifts to mistresses and ridiculously detailed trusts.

Even the wrong fiduciary can lead to probate. Fiduciaries need to be responsible, trustworthy, organized and have good people skills. Without these qualities, other family members may not readily accept their distribution decisions.

How Can Probate Litigation Help?

While probate litigation can drag on for months or even years, it will end at some point. Relentless squabbling only runs in circles and it takes a lot to agree and end the battle.

In probate litigation, the courts make the decisions for you. Often, all parties involved rest easier. Just knowing that the court has reviewed and distributed the case is enough for some people.

Do You Need Help?

Are you in a sticky situation with your relatives after the death of a loved one? Talking with a good estate attorney can help.

Contact us today to set up an appointment. Even if you don’t need to enter the probate process it’s good to know your options.

5 Estate Planning Myths Debunked

November 15, 2017/in Estate Planning

Common Estate Planning Myths

Developing an estate plan involves a process that people tend to postpone until their golden years, their kids enter college, retirement, or the birth of grandchildren. While these significant life-changes certainly merit reviewing and updating an estate plan, the important financial, health, and family planning goals at the heart of the process are too critical for procrastination. The notion that putting off decisions about these fundamental issues will not cause problems constitutes just one of many estate planning myths. We attempt to set the record straight about some of these common misconceptions below:

Estate Planning Myth #1: The only people that need an estate plan are those who are extremely wealthy.

While affluent individuals cannot afford to be without an estate plan, adults from all walks of life can benefit from some form of estate planning. Although the specific needs of people might differ depending on their assets, family relationships, financial circumstances, legacy succession objectives, and other relative considerations, individuals with modest estates can benefit from financial planning for retirement and college tuition for their children. New parents can have a will prepared to ensure that a court knows who they want to be their children’s guardian if something should happen to them. The point to understand is that the scope of estate planning issues involves much more than legacy succession.

Estate Planning Myth #2: Once you have had your estate plan prepared, you can lock the documents away until they are needed.

Although many people see estate planning as an objective to be accomplished, the documents and plan should be periodically reviewed and updated. In addition to having your estate planning lawyer revisit your situation every 3-5 years, major life events also merit a re-evaluation process. Life events that might justify an “estate planning checkup” include:

Birth or adoption of a child
Divorce
Remarriage
New grandchildren
Adoption
Retirement
Sudden changes in net worth
Family estrangement
Changes in charitable priorities
Blending of a family
Relocation to a new state
Inheritance of significant assets
Founding or development of a business
Changes in the law (e.g. changes in the Internal Revenue Code)

Myth #3: Estate planning is a task for people in their golden years.

An individual’s estate planning needs and priorities will change throughout their life, but all adults can benefit from at least a simple estate plan. Young adults can construct an estate plan to manage their financial affairs or to ensure medical treatment conforms to their priorities in the event of physical or mental incapacitation. Even teenagers going off to college might want to give their parent a power of attorney to access bank accounts or correspond with medical insurance carriers and physicians. As individuals age and develop larger and more diverse assets, their estate planning needs and objectives will change, which will necessitate a more sophisticated plan.

Myth #4: If I have a living trust, I do not need a will.

While a living trust can avoid the costs and delay associated with probating a will, a comprehensive estate plan should include other documents. A living trust provides benefits, such as privacy regarding financial affairs and prevention of the delays and costs associated with the probate process. However, a pour-over will still be needed to cover assets that are never transferred into the trust. A living trust also does not address medical or financial decisions if you become incapacitated.

Myth #5: A spouse can be disinherited through a will in South Carolina.

When a spouse objects to the terms of a will, the husband or wife can choose to take a spousal elective share of one-third of the estate plan, which includes assets transferred to a trust. The surviving spouse can exercise this right by filing a petition for the elective share in the Probate Court and the executor of the will within 8 months of the death of the decedent or 6 months of the probate of the will, whichever date occurs later in time.

Common Estate Planning Questions:

The attorneys at the De Bruin Law Firm understand that estate matters are emotional and stressful. We are available to provide objective advice and guidance to our clients. To schedule a free consultation, call864-982-5930 or use the link below.

ESTATE PLANNING LAW SERVICES

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If you’d like to speak with one of our attorneys call us at (864) 982-5930 or use the button below.

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The attorneys at the De Bruin Law Firm understand that Estate Matters can be difficult to understand and plan for. We are available to provide our clients advice and guidance during the Estate Planning Process. To view common fees associated with an Estate Plan please call us at 864-982-5930 or use the link below to view some of our common Estate Planning Fees.

What is a special needs trust?

July 27, 2017/in Estate Planning

Trusts are one of the main tools used by estate planning attorneys. Setting up a trust can help ensure that your assets go to your loved ones as efficiently as possible, and in a way that makes sense given the specific situation of the grantor and the beneficiary. When you create a trust, you are taking assets and placing them under the control of one person or entity, but for the benefit of a separate person or persons. One general benefit to trusts is that they avoid probate. Probate is the court process used to determine if a will is legitimate and to distribute a person’s assets to the beneficiaries. Because probate can be expensive and take a lot of time to complete, many people opt to create trusts that allow their loved ones to avoid probate and have immediate access to the funds and assets in question.

What is particular to a special needs trust?

A special needs trust is a trust created for the benefit of a person who has a disability or mental illness that makes them incapable of handling their own finances. The money and assets left in the trust will be managed by someone other than the beneficiary, but are only permitted to be used for the beneficiary. It might be that the trust can only be used for certain specific things, such as proving housing, food, medical care, paying a caregiver, or other related needs.

How will leaving assets in the trust impact one’s eligibility for government benefits?

Many individuals with special needs benefit from government programs such as Social Security and Medicaid. If an individual using these programs were to receive a lump sum of money, their ability to collect these benefits could be impacted. Many times though, if the assets are in a trust, and the individual does not have free use of them, the eligibility for government assistance will not be negatively impacted. The trust itself might have to make it clear that the funds are supplemental to the government benefits that the individual receives.

Who gets to decide how the assets are used?

When creating a trust, the grantor can name a trustee who can manage the funds for the beneficiary. Oftentimes, the trustee will be a trusted family member or friend who is responsible with money and capable of making the necessary decisions and arrangements to ensure that the beneficiary is getting the support they require from the trust assets. In other situations, though, the trustee can be an entity such as a bank. If the selected trustee cannot perform the duties required of him or her, a court can appoint a trustee.

If you live in South Carolina and have questions regarding how to create a special needs trust, contact the experienced estate planning attorneys at the De Bruin Law Firm. There are many options for how to set up a trust, and your attorney will be able to explain the different possibilities to you so that you can make the best decisions for your family. Call us today at 864-982-5930 to learn more about your legal options.

South Carolina Probate Process Part 2

March 24, 2017/in Estate Planning

Locating the assets and debts of an estate is one of the largest undertakings in the probate process. It can be quite challenging to track down all of the assets a decedent possessed, and it can be even more challenging to figure out all of the debts that the deceased may have owed.

Within 90 days of the executor’s appointment, the inventory and appraisement form must be filed. This form provides a summary of the estate to the court. This form must also be filed with the South Carolina Department of Revenue and Taxation in some cases.

To complete the inventory and appraisal, it may be necessary to hire a professional appraiser to establish the fair market value of certain pieces of property. For example, assistance may be needed to properly value pieces of artwork. A real estate appraiser may be necessary to provide the value of the decedent’s home. The assets will be valued as of the date of death. Once the inventory and appraisal is completed, a copy is typically sent to the tax assessor’s office.

Creditors and Outstanding Debt

The debts that were identified must be paid. However, the executor should not pay claims that were not filed properly or that missed the filing deadline. Creditors have 60 days from the date they received notice of the deceased’s death or eight months from the date the notice was published in the newspaper to file their claims with the estate. If a creditor misses these deadlines, the creditor will lose the right to recover the debt from the estate.

Creditors respond to the notice or newspaper publication by filing a notice of claim with the probate court and with the executor. The executor will then review the claims and state whether the claims will be paid or disallowed. If disallowed, the executor must tell the debtor that the claim will be barred if the debtor does not act within 30 days.

Depending on the value of the estate, tax returns may need to be filed. These returns must be filed within nine months of the death of the decedent. If these tax returns are not filed properly, the estate may be penalized, with interest. In some cases, the executor may become liable for these amounts.

Closing the Estate

Once all creditors have been notified and the applicable waiting periods have passed, the executor may begin the process of closing the estate. To close the estate, the executor must complete a final accounting that shows how the assets were distributed. Additionally, a proposal for distribution form must be filed, which provides the names of the beneficiaries of the estate, as well as the amounts or assets that have been provided to each.

A petition for settlement will also be filed. The petition for settlement essentially seeks the probate court’s permission to approve the distribution of the estate and the accounting. The petition for settlement also asks the court to discharge the executor.

Clearly, the probate process in South Carolina may be a lengthy one. Disputes may arise at any point before the estate is closed, which may become expensive court battles. A strong probate attorney is a valuable asset in these claims.

The SC Probate Process

The administration of an estate following a death is a complex undertaking, often involving numerous legal and financial steps. In South Carolina, the SC probate process is overseen by the probate court and is designed to ensure that the decedent’s assets are collected, debts and taxes are paid, and the remaining property is distributed according to their will or state law.

While the entire SC probate process requires careful attention to detail and adherence to strict timelines, one of the most significant and often challenging phases is the initial identification and valuation of the deceased’s assets and the discovery and management of their outstanding debts.

The Critical Task of Locating Assets and Debts

The foundation of any successful SC probate process lies in a complete and accurate understanding of everything the decedent owned and owed at the time of their death. This is far from a simple task.

Decedents may have held assets in various forms and locations, some of which may not be immediately obvious. Similarly, debts can range from clearly documented loans to less apparent obligations. Thoroughly tracking down all assets and liabilities is a monumental undertaking and forms the basis for all subsequent steps in the probate process.

Assets can include a wide array of possessions: real estate (homes, land), tangible personal property (vehicles, furniture, jewelry, art, collectibles), intangible personal property (bank accounts, investment accounts, stocks, bonds, retirement funds like IRAs and 401(k)s, life insurance policies, business interests), and even digital assets (online accounts, cryptocurrency, digital media).

Discovering these can involve sifting through personal papers, reviewing mail, checking safe deposit boxes, contacting financial institutions, and even exploring online presence. It requires a meticulous approach, as overlooked assets can lead to incomplete distribution, and undiscovered debts can create significant problems later in the process.

Identifying debts is equally important and potentially more sensitive. Common debts include mortgages, car loans, credit card balances, personal loans, medical bills, utility bills, and potentially even outstanding taxes.

Executors must be proactive in seeking out potential creditors. This can involve reviewing recent bills, checking credit reports (with proper authorization), and responding to claims filed after formal notification procedures are initiated. Failing to identify and properly address valid debts can expose the estate, and potentially the executor, to liability.

The Inventory and Appraisement

Within ninety days of the executor’s formal appointment by the probate court, a critical document known as the Inventory and Appraisement form must be filed. This document serves as the official list of all assets owned by the decedent at the time of their death, along with their estimated fair market value.

It provides the court, beneficiaries, and creditors with a clear snapshot of the estate’s composition and value. In some instances, depending on the size and nature of the estate, a copy of this form may also need to be filed with the South Carolina Department of Revenue and Taxation.

Completing the Inventory and Appraisement accurately often necessitates professional assistance, particularly when dealing with assets that do not have a readily ascertainable market value. For example, valuing unique or valuable pieces of artwork, rare collectibles, or complex business interests typically requires the expertise of a qualified appraiser specializing in those specific areas.

Similarly, real estate, often the most significant asset in an estate, will require a formal appraisal by a licensed real estate appraiser to determine its fair market value as of the decedent’s date of death. The valuation date is crucial; assets are valued based on their worth on the day the individual passed away, not at the time of the appraisal or filing. Once the inventory and appraisal process is finalized and the form is filed with the court, a copy is typically also sent to the local tax assessor’s office for their records.

Managing Creditors and Outstanding Debt

Once the executor has a clearer picture of the estate’s assets and potential liabilities, the process of addressing outstanding debts begins. It is imperative that the executor follows the legally prescribed procedures for notifying creditors and handling claims. While the executor has a duty to pay valid debts, they must not pay claims that were not filed correctly or that missed the statutory deadlines.

The SC probate process provides specific timeframes within which creditors must file their claims against the estate. Creditors who receive actual notice of the deceased’s death have sixty days from the date they received that notice to file their claim with the probate court and the executor. For creditors who do not receive direct notice, a general notice is typically published in a local newspaper. These creditors have eight months from the date this notice was first published to file their claims. If a creditor fails to file their claim within the applicable deadline, they generally lose the legal right to recover that debt from the estate.

Creditors respond to the notice (either direct or published) by filing a formal notice of claim with both the probate court overseeing the estate and directly with the executor. The executor is then responsible for reviewing each claim received. This review involves verifying the validity of the debt and ensuring the claim was filed correctly and on time. Based on this review, the executor will either allow the claim (indicating it will be paid) or disallow it. If a claim is disallowed, the executor must formally notify the creditor of this decision. Importantly, the executor must also inform the creditor that their claim will be legally barred (meaning they cannot pursue payment from the estate) if they do not take further legal action (such as filing a lawsuit) within thirty days of receiving the notice of disallowance. This strict timeline protects the estate from stale or improperly filed claims.

Addressing Tax Obligations

Estate administration also involves navigating potential tax obligations. Depending on the size and complexity of the estate, various tax returns may need to be filed. This can include the decedent’s final personal income tax return (covering the period from the beginning of the tax year to the date of death) and potentially a federal estate tax return (Form 706) if the gross value of the estate exceeds a certain threshold, which is adjusted annually. State inheritance or estate taxes may also apply, though South Carolina currently does not have a state-level estate or inheritance tax.

These tax returns have specific filing deadlines, most notably the federal estate tax return, which must be filed within nine months of the decedent’s date of death, unless an extension is requested. Accurate and timely filing is critical. If these tax returns are not prepared and filed correctly, the estate can face significant penalties and interest charges.

In some circumstances, particularly if the executor acts negligently or improperly distributes assets before satisfying tax liabilities, the executor may become personally liable for these unpaid amounts. Seeking guidance from a tax professional or an attorney with expertise in estate taxation is highly recommended to ensure compliance.

Final Accounting and Distribution

Once the periods for creditors to file claims have expired and all valid debts, taxes, and administrative expenses have been paid, the executor can begin the process of formally closing the estate. This final phase involves demonstrating to the court that the executor has properly managed the estate and is ready to distribute the remaining assets to the rightful beneficiaries.

A key step in closing the estate is the completion of a final accounting. This detailed document provides a comprehensive summary of all financial transactions that occurred during the estate administration. It lists all assets that came into the estate, all income received, all expenses paid (including administrative costs, debts, and taxes), and ultimately shows the remaining balance available for distribution. This accounting must be clear and accurate, providing a transparent record of the executor’s management.

Alongside the final accounting, the executor typically files a proposal for distribution form. This document outlines exactly how the remaining assets will be distributed to the beneficiaries. It lists the names of all individuals or entities who are to receive property from the estate, specifying the particular assets or monetary amounts each beneficiary is entitled to receive according to the will or the laws of intestacy if there was no will.

Finally, the executor files a petition for settlement with the probate court. This petition formally requests the court’s approval of the final accounting and the proposed distribution plan. By filing this petition, the executor is essentially asking the court to review and bless their administration of the estate. The petition for settlement also typically includes a request for the court to formally discharge the executor from their duties, releasing them from further responsibility for the estate once the distribution is complete and approved.

Challenges, Disputes, and the Value of Legal Counsel

It is important to recognize that the probate process in South Carolina, while following a defined legal framework, can be lengthy and fraught with potential complications. Disputes can arise at almost any stage before the estate is officially closed. Common sources of conflict include challenges to the validity of the will (will contests), disagreements over the identification or valuation of assets, disputes with creditors over the validity or amount of a debt, or conflicts among beneficiaries regarding the interpretation of the will or the proposed distribution of assets.

When disputes arise, they can escalate into expensive and time-consuming court battles, significantly delaying the final resolution of the estate. Navigating these legal challenges requires a thorough understanding of probate law and court procedures.

Given the complexities involved in the SC probate process, like managing creditor claims, fulfilling tax obligations, and navigating potential disputes, having a strong and experienced probate attorney is an invaluable asset throughout the entire process.

An SC probate attorney can provide guidance on the proper legal procedures, assist in the meticulous task of asset and debt discovery, advise on handling creditor claims, ensure compliance with tax laws, prepare and file all necessary court documents, and represent the estate’s interests if disputes arise. Their in-depth knowledge (of the probate process) can help streamline this process, minimize potential liabilities, and ultimately ensure that the decedent’s final wishes are carried out efficiently and effectively.

Do You Need a Probate Attorney in South Carolina?

If you have been appointed as executor of an estate, or if you have concerns about the handling of a loved one’s estate, contact the De Bruin Law Firm today for a free case review. Our attorneys are experienced in probate law an have handled estates of all sizes.