Wills and Estates
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.
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.
Common Estate Planning Questions:
- What Actually Is A Trust?
- What Are The Components That Make Up An Effective Trust?
- What Are The Advantages Of Avoiding Probate?
- Can I Add An Asset To My Trust At Any Time?
- Do I Need To Have An Attorney Involved In Funding A Trust?
- What Does It Mean To Actually Fund A Trust?
- What Is an Estate Plan? What Does It Consist of?
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