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.
