Tag Archive for: Estate Planning

What Is Estate Planning?

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Did you know that only 33% of Americans have a will or living trust? In fact, since the beginning of the pandemic, the number of 18 to 34-year-olds with estate plans increased by 50%.

Whether you’re 18 or 80, everyone needs an estate plan. No matter how many assets your own, estate planning protects your loved ones and is a powerful way to create a legacy.

But what is estate planning exactly? Keep reading to learn more about how an estate planning attorney can help you make plans for the future.

What Is Estate Planning?

Estate planning is simply the process of making a clear plan for your assets. A will or trust is a plan for the management or transfer of your estate after your death or incapacitation. This ensures that your affairs are handled the way you want.

A will is a legal document that provides instructions around an individual’s property. This also includes making a plan for all of your assets including:

  • House, land, or cars
  • Bank or retirement accounts
  • Stocks or investments
  • Jewelry or furniture
  • Digital assets (online and email accounts)
  • Digital property (virtual currency, reward points, domain names)

Estate planning is not just about your finances and property. It also encompasses decisions around guardianship, custody of minor children, and medical actions if you become incapacitated and can’t make your own decisions.

If you die without a will, state laws of descent and distribution will determine who receives your property. In South Carolina, this means that your estate is subject to the state’s inheritance laws or intestate succession laws. While this usually means that your property will go to your closest living relatives, it can also be a time-consuming and expensive process for your eventual heirs.

All in all, a will ensures that whatever happens next your interests are protected.

Key Steps for Creating a Will

Everyone over the age of 18 should invest in creating a plan. From social media accounts to land, everyone owns assets. An estate plan guarantees that everyone knows your wishes.

Planning a will also include naming an executor, choosing beneficiaries, and setting up funeral arrangements. This also encompasses planning for potential estate taxes. A properly prepared estate plan will lay out your wishes, prevent misunderstanding, and ensure everything is done in the most tax-advantaged manner.

While a lot of steps go into the planning process, there are a number of key steps in the process including:

  1. Taking an inventory of everything you own
  2. Determining what type of estate plan you need
  3. Choosing a guardian for yourself, children, or pets
  4. Establishing directives like Durable Power of Attorney and executor
  5. Naming beneficiaries for assets that don’t already have them designated
  6. Partnering with a highly reviewed estate planning lawyer
  7. Creating, signing, and storing your plan
  8. Updating your estate planning documents as needed over time

While estate planning can feel overwhelming, it can also be a straightforward process when working with the right partner. Consulting an estate planning attorney at the beginning of your planning journey can save you a lot of time in the long term.

Estate Planning Documents and Taxes

There are a number of documents that make up an estate plan. Each item works together to create a clear plan for your final wishes.

Common planning documents include:

  • Guardianship
  • Will
  • Living Trusts
  • Financial Power of Attorney
  • Durable Power of Attorney
  • Advance Healthcare Directive
  • HIPPA Authorization
  • Intestate Succession Plan

Taxes also play a significant role in the estate planning process. The goal is to leave as much as you can for your heirs. The estate planning process includes tools to pass assets while avoiding hefty taxes.

South Carolina does not have an inheritance, estate, or gift tax. At the same time, there are other state and federal laws a lawyer can help you navigate. For example, federal laws do apply to gifts over $16,000 in a single calendar year.

Strategies that protect assets like AB trusts, estate freezing, education funding strategies, and charitable contributions can considerably reduce state and federal taxes.

Appointing the Right Executor

An executor of a will is the person legally named to take responsibility for your wishes. The executor legally administers an estate. This includes following instructions in will documents, ensuring assets are distributed, and estimating the value of the estate as determined by the Internal Revenue Code.

The executor is also responsible for paying debts and taxes.

An executor can either be a family member, lawyer, or accountant over the age of 18. They also must have no prior felonies. Working closely with an estate planning attorney can help you avoid intricacies around co-executors, disputes with heirs, and personal liability exposure.

Common Mistakes to Avoid

It can be easy to put off estate planning because it can seem complicated, costly, and confusing. Additionally, low-cost estate planning strategies can have long-term negative consequences for you and your loved ones.

Because a will captures your future plans, it’s essential to find the right partner. A cautious attorney will help you avoid future misunderstandings, delays, and inaccuracies.

Common mistakes to avoid include:

  • Not regularly updating a plan over time
  • Not planning for potential disability or long-term care
  • Not thinking through the full implication of taxes
  • Not having liquid assets that can be converted into cash
  • Not putting children’s names on deeds to property
  • Not making gifts during your lifetime

Find an Estate Planning Lawyer

If you’ve wondered “what is estate planning” in the last year, you are not alone. Americans across the country are investing in estate planning services because it’s the only legal tool to create a lasting legacy. Today is a great day to start thinking about how you can use a will to execute your future wishes.

If you are looking for a trusted local partner in Greenville, South Carolina, the De Bruin Law Firm is here to guide you throughout the estate planning process. We believe in delivering preeminent legal services based on sound and strategic legal counsel.

Contact us today to schedule a consultation and learn how we can put our years of local experience to work for you.

How Can an Estate Planning Lawyer Help You?

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As you get older, the importance of developing an estate plan increases dramatically. However, according to a recent survey, only 42% of Americans have a plan for their estate.

Looking ahead at end-of-life situations feels grim, but you need to have a plan for what you leave behind. Should you pass intestate, meaning without a will, the state will be in charge of distributing your assets.

This sort of planning involves a significant amount of legal paperwork, intimate knowledge of estate planning laws, and a sound strategy. For this, you need an estate planning lawyer to guide you through the complex process of preserving your legacy.

The Duties of an Estate Planning Lawyer

It should be obvious that estate planning lawyers are attorneys who specialize in estate planning. That means their chief responsibility is assisting you in your end-of-life preparations. They ensure that your loved ones receive the benefits you’ve decided to pass along.

Start your estate planning with an attorney as soon as you’re able. Your estate plan needs to account for so much more than the money you’re leaving to loved ones. It may include designating guardianship, determining what to do with a business you own, and making determinations on financial assets like stocks.

You need the help of an attorney to guide you through the plan-making process.

Develop a Will

Writing a will is a critical aspect of estate planning. While you can write one on your own, enlisting the help of a qualified estate planning attorney will make the process much easier.

An attorney builds a will that uses specific language, can help the will stand up to contestation, and ensures that your assets are distributed in the way that you desire.

Will writing can be complex, and it’s easy to make mistakes. Unfortunately, a minor oversight could put your entire estate in jeopardy.

Establish a Trust

While wills typically go into effect in the event of your passing, a trust can go into effect immediately. Another key difference is that a will must go through the probate process and become public record, while a trust remains private.

Your lawyer may determine that establishing a trust is a more appropriate measure.

With a trust, you’ll name a trustee who will be responsible for distributing the assets named in the trust according to its outlined terms.

Assistance with Taxes

Inheritance and estate taxes can quickly drain any funds you pass along to your family members. This may leave them without the financial support you planned to provide for them.

An estate planning lawyer will work with you and your loved ones to navigate these complicated tax laws and help you minimize the tax liabilities associated with estate planning.

Powers of Attorney

Should you become incapacitated and unable to make decisions on your own, a lawyer can help establish powers of attorney so a loved one can act on your behalf. This is especially important if you’re someone’s primary caregiver, as you need to ensure that they’re provided for.

Situations When You Need an Estate Planning Attorney

In addition to their most common duties, an estate planning lawyer can aid you and your family members in a number of complex situations.

Updating Your Plan

Family dynamics are ever-changing, so you may deem it necessary to make changes to your end-of-life plan. Fortunately, a lawyer makes the process simple.

You may want to leave assets to a specific family member, add a new beneficiary like a grandchild or step-child, or exclude someone from your will.

Some members of your family may prove themselves too irresponsible to manage their inheritance. You may also need help navigating laws that prohibit non-immediate family members from receiving benefits.

Interstate or International Assets

Dealing with your state’s estate laws is complicated enough, but the process becomes even more difficult if you have assets in another state or another country. You’ll have to abide by the laws in those states and countries as well as the ones where you currently reside.

Without professional legal help in this situation, it’s almost impossible to ensure that your assets are protected and distributed in the manner you desire.

Succession for Your Business

If you’re an entrepreneur and own a small business or a stake in one, you need to ensure that your business doesn’t fall into the wrong hands when you pass. An attorney will help you determine your business’s succession plan and ensure that an appropriate individual takes the reins.

Protecting Your Will

Since wills go through the probate process, certain situations allow interested parties to contest the validity of your will. The responsibility of defending the will then falls to your named executor.

An experienced attorney can help ensure that your will is able to stand up to contestation. They can include a powerful no-contest clause that renders anyone who contests a will unable to receive benefits.

Establishing an Irrevocable Trust

While many estate plans allow you to modify them, an irrevocable trust cannot be changed. Due to the permanence of such a trust, it’s advised you consult with an attorney.

Irrevocable trusts have a few unique advantages and can certainly benefit your loved ones. They may help someone who depends on you for primary care retain their medical benefits, help a beneficiary who needs financial aid minimize costly estate taxes, and can protect your assets from debtors who come to collect from your estate.

An Estate Planning Lawyer Keeps Your Assets in Order

Planning your estate is a difficult thing to do, and it’s advised you start the process early. Consult with an estate planning lawyer so your beneficiaries don’t have to worry about what happens to your assets after your passing.

The best estate planning lawyers will help you develop a plan for your financial assets. They’ll determine if you need a will or trust. Finally, they can help you through all of the complex legal situations surrounding estate law.

Looking to hire a lawyer to help with your estate planning? The De Bruin Law Firm is ready to help. Schedule a consultation today.

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

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

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

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

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

What Is a Living Will?

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

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

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

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

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

The Function of a Living Will

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

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

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

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

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

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

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

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

What a Living Will Typically Includes

A living will may include your instructions regarding:

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

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

Advanced Directives: More Than Just a Living Will

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

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

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

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

Living Trust in South Carolina vs. Living Will

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

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

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

Benefits of a Living Trust in South Carolina

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

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

Key Differences at a Glance

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

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

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

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

Common Misconceptions

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

Planning for Peace of Mind

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

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

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

Living Trust or Living Will?

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

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

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

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

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

The focus of a living will helps to clarify:

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

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

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

Living Will vs. Living Trust in South Carolina

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Write Your Living Will

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

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

Contact us today to schedule a consultation.

Your Essential Estate Planning Checklist

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

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

A Comprehensive Will or Trust

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

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

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

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

Power of Attorney

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

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

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

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

Designated Beneficiaries

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

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

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

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

Healthcare Power of Attorney (HPCA)

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

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

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

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

A Letter of Intent

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

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

Designated Guardians

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

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

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

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

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

Create a List of Outstanding Debts

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

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

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

This Estate Planning Checklist Can Be Game-Changing

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

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

Estate Planning Continues During a Pandemic

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Familial tragedies often spur people to reach out to my office to begin the estate planning process.  A common situation that prompts a new client to seek my services is the death of a family member who had not properly planned for asset distribution. The surviving family is left sorting through the probate process without a roadmap for asset distribution. In those situations, the State now dictates how assets are distributed.  The surviving family members, in an effort not to leave behind the same mess, are now motivated into action to ensure their own families avoid the same hassles.

 

With the world now dealing with COVID-19, I believe many people find themselves with more time on their hands and time to think about what their future will hold after the pandemic. I also expect many Americans and South Carolinians will think more about their own mortality, especially those suffering from medical conditions that make them more susceptible to serious symptoms of the virus.

 

The news constantly bombards us with infection levels, death tolls, quarantines and the extremely negative effect this outbreak is having on our economy. The lack of food and supplies at stores compounds anxiety in those of us who did not keep several weeks’ worth of supplies in our homes. During these uncertain times, we realize that so much is beyond our control; however even now, there are still plenty of things we can control.

 

After everything settles down, my office will see an increase in people seeking estate planning services. They will not want the added anxiety of going through life without a plan for the next time a tragedy occurs. My question to you is why wait until after the crisis has passed to take the steps necessary to shore up your personal life? We all know the value of a Will and accompanying documents. We all know how important it is to appoint someone to make financial and medical decisions for us when we can no longer make them ourselves.

 

Do not wait until the COVID-19 pandemic is over to start your estate plan.  We are here to help and are offering creative solutions to get estate planning documents started, signed and in place. We can connect with new clients via phone or internet to ensure safety and social responsibility. Once we have completed a draft of your documents, we will e-mail those documents to you for review.  Completing your estate plan does not mean you are dwelling on your death.  It means that you can check this crucial task off your list, ensure your family is prepared for when that time comes so you can get back to living life. Getting your estate plan started will help you feel at ease, even when the world feels a bit chaotic.

 

Contact our office today to schedule your estate planning consultation, 864.982.5930.

What Is an Estate Plan? What Does It Consist of?

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Estate planning is not limited to people with a large amount of assets. It is not in any way, shape, or form exclusive to wealthy individuals or wealthy families. Estate planning is a means of creating a strategy to distribute your assets after your death to ensure that those assets go to the people that you want them to go to. It is more than just a will. Although it is possible to get only a will, there are a number of other documents that, together, help create a clear plan should a number of situations occur. A good estate plan prevents situations where your family does not know what you want during times of physical or mental incapacitation, or even after your death.

An estate plan also aims to answer questions about your children, such as who’s going to take care of those children and how are they going to be taken care of. Providing for children is the number one concern for parents and a good estate plan will help ensure the children are well cared for and provided for in the event of your passing.

What happens if someone dies without a will or an estate plan?

Unfortunately, it is very common for someone to die without a will or an estate plan. Almost half of people over age fifty are without an estate plan which leaves their family to make all the decisions. In South Carolina, assets of the deceased spouse are divided between the surviving spouse and any children of the spouses. Now, you have a situation where the spouse owns assets with her children, and they must come to an agreement before selling those assets. For families with minor children, an accident that leaves both parents incapacitated or dead can lead to contested Court hearings between other family members regarding the children. Without an estate plan that appoints a guardian for the children, the parents may not get to choose who cares for their children. Without the plan, the Court is left with the obligation of deciding for you, without the benefit of your desires, best wishes, or intentions.

How often should someone review their estate plan?

Typically, we suggest a person review their estate plan once a year to ensure they still agree with the provisions. However, we suggest an immediate review if some life changing event occurs. For instance, if the guardian you named in the Will is separating or going through a divorce with their spouse, you may want to consider another guardian to ensure the children go to a stable home. We at the De Bruin Law Firm will review your documents every three years or immediately if the law changes that may affect you. It’s no different than going to a doctor for a routine checkup. After 3 years, we would like to sit down for a conversation and see if anything significant has changed. We might want to relook at how your estate plan has been handled thus far.

We want you to contact us if you even suspect that a situation may impact your current estate plan. We have seen situations where a beneficiary that stood to receive a large inheritance is addicted to drugs. We can change the plan to ensure the inheritance would instead be used for drug treatment or withheld until the beneficiary is off drugs and clean for at least a year. Without that provision, the beneficiary would have received the inheritance and most likely would have used it quickly on their addiction.

Other changes are necessary when a beneficiary becomes disabled and in need of government assistance. In these situations, we would need to change the estate plan to prevent money or assets going directly to the disabled person since that distribution may disqualify the beneficiary from receiving government assistance such as Medicaid. Instead of going directly to the beneficiary, we can ensure the assets go into a trust and used for the beneficiary’s wellbeing and support. That change of control over the asset, will prevent the beneficiary from disqualification of needed government assistance.

What are the basic items entailed in an estate plan?

The most common of all items in an estate plan is the last will and testament. The will directs where your assets will go after your death, who will care for minor children if both parents are deceased, the deceased’s desired for funeral arrangements, and who is appointed to carry out the distribution of assets.

In situations where you can no longer make medical decisions for yourself, a Medical Power of Attorney executed prior to the incapacitation, directs an agent you appoint to make those medical decisions on your behalf. The Medical Power of Attorney is for permanent and temporary incapacitation.

The Advance Directive or Living Will makes known your desires regarding the end of your life. It may inform the doctors that you want to die naturally and prevent life sustaining measures if you are in a permanent vegetative state or terminally ill. Again, these two medical documents are only used when you cannot make medical decisions for yourself due to incapacitation.

Another common document in estate plans is a trust. The most common and basic type of trust is a revocable trust. This trust allows you to put assets in the name of the trust to be passed outside probate. We commonly refer to these trusts as Probate Avoidance Trusts. Instead of your assets going through the probate process and incurring probate fees, a revocable trust can distribute the assets in trust to the beneficiaries immediately or in accordance to your plan. There are many types of trusts that achieve different goals.

What qualities should someone look for when retaining an estate planning attorney?

In any professional relationship, the first thing you should look for is trust. You want to be able to know that they are going to handle your situation in a professional manner. Our firm is made up of three family members dedicated to helping our community and clients. That dedication is the keystone to everything we do and in every aspect of our daily functions. Our clients know that what we suggest is in their best interests and that we have a desire to see them succeed or protected.

When searching for an estate planning attorney, it is also important to select someone who is experienced in estate planning. When you go in for your consultation, it is important to ask if the attorney has handled cases or estates like yours before. At the De Bruin Law Firm, our estate planning attorneys are experienced and have handled estate planning issues for decades.

For more information on Estate Planning in South Carolina, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (864) 982-5930 today.

What Are The Components That Make Up An Effective Trust?

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A Trust has three major components. The first is the detailed instruction about the administration of the Trust itself. This answers questions such as, what do you want to happen? Who do you want the beneficiaries to be? How do you want it to be serviced? These detailed instructions are the first component of the Trust.

An effective Trust is used as a long-term planning device and is made up of long-term, mid-term, and short-term plans and their contingencies.

What do you say to people who are hesitant about losing control of their assets in a trust?

A Trust can be named a revocable Trust, meaning that any time the person who made the Trust is living, they can revoke the Trust and move everything back to their individual name. In this type of Trust, you can always regain title and direct ownership of all your property. This is because in a revocable Trust, you can serve as the Trustee and as the beneficiary, giving you power to either leave the assets in a Trust or close the Trust and make it inactive.

How does a revocable living trust avoid probate?

A Trust continues the entity after the death of the person who made the Trust. Probate is where all the assets of the person who passes away are handled. At the death of the maker of a Trust, the Trust owns all the assets. Those assets pass to a beneficiary. Once the Trust is established by placing the assets in the name of a Trust, the Trust becomes a legal entity. When the maker of that Trust passes away, that legal entity does not end; it continues with the assets being allocated according to the Trust to the beneficiaries. The Trust avoids probate because it has a life after the maker’s death.

What is involved in trust administration?

The administration of a Trust really boils down to the Trustee managing the assets according to the terms of the Trust. When the maker passes away, the Trustee must notify the beneficiaries and the heirs if they are listed in that Trust. The Trustee takes care of all the Trust’s assets, strictly for the benefit of the beneficiaries. The administrator can be a person or an organization (such as a bank or law firm), or it could be multiple Trustees. Regardless, the administrator has a legal responsibility to act in good faith always and in the interest of the beneficiaries.

For more information on Components Of An Effective Trust, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (864) 982-5930 today.

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

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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:

  1. Written document: It must be in writing.
  2. 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).
  3. 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

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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

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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.

The De Bruin Law firm offers a wide range of legal services to clients in Greenville, SC and the surrounding upstate. Our experienced attorneys can help you with legal matters in the areas of business law, criminal law, estate planning, and real estate law.

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