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Frequently Asked Estate Planning Questions
Do I need a Will?
In almost every case, the answer is yes. Let’s discuss what a will is to understand why. A will is a legal document that contains a person’s wishes for how his or her assets will be distributed after his or her death. A will allows someone to guarantee that their property goes to the right people in the right proportion, rather than allowing someone else to make that decision for you. This can be especially important in cases where your chosen distribution differs from the legal default. For example, someone with a special needs child may wish to allocate a larger share of assets than would otherwise be allowed to ensure that child’s continued care. In other cases, a person may wish to support an important charitable organization, a friend, extended family members, etc., all of whom would receive nothing without a will expressly requiring it.
What happens if I die without a Will?
Dying without a will in South Carolina means your assets will pass according to the state’s laws regarding intestate succession. This is just a fancy legal word for death without a will. The law in South Carolina says that if a person dies with children, but no spouse, the children will inherit everything. If the person dies with a spouse, but no direct descendants, then the spouse inherits everything. If there is a spouse and direct descendants, the spouse receives ½ of the intestate property while the descendants jointly inherit everything else. In cases where there is no spouse or children, parents inherit everything if they are still living; if not, siblings are next in line.
Will the government take my property if I don't have a Will?
The last stop in the intestate succession process is the State of South Carolina. When a person dies without a will and does not have any family to inherit, property will “escheat” to the state, meaning the state effectively becomes your heir. This happens only rarely and only when there are no spouses, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins. To avoid this possibility, all you need to do is write out a legally enforceable will.
What should I put in my Will?
As we’ve already discussed, wills are excellent ways to deal with and distribute financial assets. Beyond handing out money, wills can also be used to do other things. For example, wills can set aside amounts of money for specific purposes, not just as inheritance. A person can set aside a bank account to pay for funeral expenses, final debts ,or to care for a beloved pet. Wills can be used to choose an executor and to forgive debts. Perhaps most importantly, for those with minor children, wills allow you to name guardians for the children and provide for their financial future.
Are out of state Wills still valid?
Some people are under the impression that a will drafted in South Carolina is valid only so long as the person remains in South Carolina. Thankfully, this is not true. If a Greenville estate planning lawyer draws up a legally enforceable will that has been validly executed, it will be recognized as legally valid in every other state. That being said, the court and probate systems work differently in every state and there are certain provisions that may be needed or not needed, depending on your location. Though you shouldn’t fear that a move requires reinventing your entire estate plan, it does make sense to sit down with an attorney and ensure that your existing documents are sufficient given your new state’s legal requirements.
What is a Trust?
A trust is a legal entity that exists to hold assets on behalf of one or more beneficiaries. The trust is created by a grantor and is filled with assets of almost any kind. These assets are then managed by a trustee during the term of the trust. Trusts can last for a person’s lifetime, for a set number of years or until the beneficiary reaches a certain age.
Beyond this broad description, trusts take on many different forms. Trusts can be either revocable or irrevocable, meaning they can be created and undone at will. Some trusts begin during the grantor’s lifetime, while others exist only after a person’s death. Trusts are incredibly versatile tools that can be used to accomplish many things. A knowledgeable South Carolina estate planning attorney can construct a trust designed to fit your needs.
What is the difference between a Trust and a Will?
Many people try to make overgeneralizations when it comes to the powers of trusts or the ease of wills. The truth is that one is not necessarily better or worse than the other, they are just different. Both are incredibly useful and can have a place in an effective estate plan. Where a trust may be a huge benefit to some families, it may not make sense to others. Where a will is a great vehicle for distributing some assets, it may make less sense for passing along others. Consult an experienced South Carolina estate planning for help crafting the right plan for you.
What is Probate?
Probate is technically the legal mechanism by which title to property of a recently deceased person is transferred to his or her heirs. The goal of probate is to ensure that every possible claim against the estate and those owing to the estate has been settled and that title has been given to the rightful heirs. This can be a lengthy process in some especially complicated cases, and the goal is to ensure that when all’s said and done, an estate can be wrapped up without lingering disputes.
Does everything go through Probate?
The short answer is no, not everything a person owns goes through probate. These assets pass through other avenues, such as payable-on-death accounts or beneficiary designations. Examples of assets that do not pass through the probate system include property that has been transferred into a trust, life insurance proceeds, retirement funds, money in payable-on-death bank accounts, and property that is owned with someone else as a joint tenant.
What are the advantages of avoiding Probate?
There are several important advantages that come from avoiding the probate process. First, time. If you are the owner of a small business that you intend to pass along to a family member, this can be especially important. Probate puts everything in a state of limbo, sometimes leading to long delays before important business decisions can be made. Uncertainty and a lack of legal authority can make it difficult, if not impossible, to keep a business running, which is why many business owners take steps to ensure their business passes outside the probate system.
Another advantage to avoiding probate is saving money. Probate is a court process and court costs needs to be paid. Usually the amount of money is relatively small, but complicated cases can become quite costly, especially if experts or other third parties become involved.
A final advantage of avoiding probate is the lack of public disclosure. The probate process takes place in the court system and, as such, is open to the public. That means that the person’s will, the final property allocation, and anything else related to the administration of the estate will become matters of public record, available for anyone to read. These deeply personal and financial matters are obviously sensitive and many people would prefer to keep things private.
How often should I update my Will?
Too often people view creating an estate plan as a one time ordeal, believing that once it’s done, you can put your papers in a filing cabinet and never think about them again. A better approach is to view estate planning as an ongoing process, rather than one with a finite beginning and end. Estate plans should be updated whenever there is a significant change in your life. This change can be personal, such as a divorce, a new marriage, birth of children, grandchildren, etc., or it can be financial, such as a new business, purchase of new assets, sales of previously accounted for assets, etc. The safe approach is to plan on reviewing your existing estate plan every few years to be sure that something hasn’t happened that would make you consider changes.
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