Tag Archive for: Estate Planning

10 Common Estate Planning Mistakes and How to Avoid Them

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Every year more than 3.3 million people die in the United States. The death of a loved one can be an incredibly difficult time for their friends and family.

However, a lot of people are surprised by the amount of practical admin involved when a loved one dies. Making a plan for your estate before your death can help to ease this burden for your loved ones. It will also ensure that you can provide them with financial stability after your death.

That said, common estate planning mistakes can make things much more complicated for your loved ones after you die. So it is important to avoid these when creating an estate plan.

Not sure which mistakes to look out for? Then you’re in the right place. Read on to find out ten common estate planning mistakes and how to avoid them.

1. Forgetting to Make an Estate Plan

Only 33% of people in America have a comprehensive estate plan in place for when they die. So if you haven’t put your plan together yet, you’re in good company! Now is a good time to change this.

An estate plan lets you control what happens to your belongings after you die. This might include:

  • Leaving the family home to your spouse
  • Creating financial trusts for your children
  • Making charitable donations
  • Outlining who will be in charge of your business after you die

If you do not have an estate plan in place, this leaves room for a lot of legal disputes after your death. While family (and particularly spouses) usually take legal priority, others can dispute this. This could make life very hard and uncertain for the loved ones that you leave behind.

Fortunately, you can stop this from happening – even a basic estate plan is better than no plan at all. Your loved ones will be able to use this as evidence of your wishes. So make sure you get this down in writing and have it witnessed by a legal professional.

2. Not Updating Your Estate Plans Regularly

A lot of people make their first will when they take out life insurance, start making money, or have their first child. However, life can change a lot so it is important to update your will regularly.

For example, you may:

  • Have acquired different types of assets, such as a business or life insurance policy, that you need to account for in your will
  • Have got divorced and want to adjust the role of your ex in your will
  • Want to add or change beneficiaries
  • Decide to include contingent beneficiaries as you get older

Reviewing and updating your will ensures that it reflects your most recent wishes and covers all of your assets.

Loved ones, such as your children or spouse, are allowed to dispute an estate plan after your death. This is easier to do if your estate plan is very out-of-date. The person disputing your will could, for example, say that it doesn’t reflect your most recent wishes.

Updating your estate plan will make it harder for people to do this. This can make the administration of your estate much easier for your loved ones.

3. Not Giving Someone Power of Attorney

When making an estate plan, a lot of people focus on what will happen to their assets after they die. However, this means that they overlook other important things, such as giving someone power of attorney.

Power of attorney legally authorizes a person (or several people) to act on your behalf if you become incapacitated. For example, this may happen if you have an accident that leaves you in a coma or unable to communicate.

You can give someone power of attorney in two areas: financial decisions and health care decisions.

Without power of attorney, your loved ones may struggle to act on your behalf. They may also not legally be allowed to make decisions about your finances and healthcare.

Giving one or more people the power of attorney makes it easier for them to manage your estate. This also allows you to pick who you want to represent your interests if you are incapacitated.

4. Forgetting to Factor in Retirement Costs

Most people will make an estate plan while they are working but your financial situation can change a lot after retirement. Failing to factor in your retirement costs could leave your loved ones with a lot less financial support after your death.

Fortunately, it is easy to avoid this common estate planning mistake with some basic planning. You will need to look at:

  • Nursing home costs
  • The cost of at-home care
  • How much you need to spend before you qualify for Medicare funding

This will help you make informed decisions about your spending during retirement. It can also help you figure out how much you need to save to qualify for Medicare without bankrupting your spouse.

5. Signing Over the Deed to Your Home

Good estate planning can save your loved ones money on inheritance taxes.

However, one of the biggest mistakes people make is signing over the deed to their home before they die. This might involve signing your home over to your spouse or your children, for example.

This is a bad idea for multiple reasons. Firstly, it means that you no longer have legal control of your own home while you are still alive. So if the new owner wants to kick you out and sell it, there is nothing you can do!

Giving your child or spouse the title of your home is also seen as a taxable gift. This means that you won’t save them any money by putting their name on the deed.

Instead, you should speak to your estate planning lawyer about tax-free ways to pass on your assets.

6. Choosing the Wrong Person to Handle Your Estate

When making an estate plan you will have to choose estate plan beneficiaries. These are the people who will inherit your assets.

However, you also need to appoint someone to be the executor of your estate. They will oversee the probate process.

A lot of people choose their spouse or a close relative to be the executor of their estate. This can be a big responsibility for someone who is also grieving. They will have to handle complex financial, legal, and tax proceedings.

An experienced estate lawyer will be able to help you choose the right executor for your estate. So it is a good idea to discuss this with them while you are creating an estate plan.

7. Not Making Non-Taxable Gifts Before Your Death

If you have a lot of assets to pass on to your loved ones this can become very expensive for them. They will have to pay inheritance tax on the majority of your assets.

You can save them money by gifting certain assets before your death. For example, you make an estate tax-free gift of up to $15,000 per year to your spouse. This can significantly ease the burden of inheritance tax for your loved ones when you do die.

8. Forgetting to Transfer Your Insurance Policy to a Life Insurance Trust

Speaking of inheritance tax, you can save your loved ones money by putting certain assets into trusts and retirement plans. Your life insurance policy is a significant asset and will be included in your estate taxes after your death.

However, you can transfer this to a life insurance trust. This makes the proceeds of your policy tax-free as they are not directly owned by you.

The trust will then pay out your policy to your loved ones. So they will still see the financial benefits of your life insurance policy.

9. Thinking That You Do Not Need to Make an Estate Plan

If you don’t have a lot of money in the bank you might think an estate plan is unnecessary. However, an estate plan isn’t just about your finances.

You can also use this to:

  • Appoint someone to make medical decisions on your behalf
  • Give a business partner power of attorney while you are out of the country
  • Name a guardian for your children

So, if you want to have control of who makes decisions on your behalf, it is a good idea to create an estate plan sooner rather than later.

10. Creating an Estate Plan Without Expert Help

Estate planning isn’t as simple as drawing up a will and naming beneficiaries. Probate is a complex legal process and having a thorough plan in place will make this smoother for your loved ones.

Because of this, it is a good idea to speak to an estate planning lawyer about your assets. They will teach you about:

  • Strategies for reducing inheritance tax
  • Different state inheritance laws
  • Proposed changes in tax law that could affect your will

They will also ensure that your estate plan is strong enough to counter legal challenges. So even if you already have a do-it-yourself plan in place, it is a good idea to review this with an experienced estate lawyer.

Get Help Avoiding These Common Estate Planning Mistakes Today

As you can see, drawing up an estate plan isn’t as simple as making a will. How you distribute your assets will have a big impact on how much tax your loved ones have to pay. So the more detailed your estate plan is, the easier life will be for your loved ones after your death.

Do you feel ready to put together your estate plan and want help avoiding common estate planning mistakes? Then get in touch with De Bruin today. Our experts in estate planning will be happy to help.

Estate Planning 101: The Different Types of Wills

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Let’s be honest; no one likes to talk about their last wishes when they pass away. Unfortunately, this is a conversation everyone should have with their family members to ensure their assets are transferred to their designated beneficiaries without any issues.

Several types of wills are available that work best for specific situations and others that may not fit your needs. To learn more about these different wills and how they can benefit you and your family, continue reading below. We will cover all you need to know about these different types of wills and who you can contact for more information.

Will Types in Greenville, South Carolina

The Simple Will: A Foundation for Estate Planning

Of all the different types of wills available to those living in Greenville, SC, the simple will is relatively straightforward and serves as a foundational document for many individuals. At its core, a simple will allows you to clearly outline your wishes regarding the distribution of your assets and the guardianship of your minor children in the event of your premature passing.

With this type of will, you can declare precisely how you wish to give away your assets, specifying who receives what kind of asset – whether it’s a piece of property, a financial account, or personal belongings. Furthermore, you designate an executor for your estate, the individual or entity responsible for carrying out the instructions laid out in your will and managing the probate process. The executor ensures that your debts are paid, assets are distributed as you’ve directed, and all legal formalities are observed.

While seemingly comprehensive, a simple will is best suited for estates that are not overly complex. If you own a business, have a substantial estate that might be subject to significant taxes, or possess intricate financial arrangements, a simple will may not be sufficient. In such cases, other, more specialized types of wills or estate planning tools might be more appropriate to address the nuances of your financial situation and minimize potential tax burdens.

There are also specific situations where relying solely on a simple will might not be the most effective strategy. For instance, if your intention is to leave land to your children or other family members, or if you have children from a previous marriage, a simple will might not adequately address the complexities of these arrangements. 

Similarly, if you need to establish a special needs trust for a beneficiary with a disability to ensure they can receive financial support without jeopardizing their public assistance eligibility, a simple will won’t suffice. 

Lastly, if you have any reason to believe that your will might be challenged by an estranged family member or another party, a simple will may not offer the robust legal protections needed. In any of these situations, seeking the guidance of a reputable estate planning attorney is highly recommended to determine the best type of will and overall estate plan for your unique circumstances.

Testamentary Trust Will: Conditional Bequests and Beneficiary Protection

A testamentary will introduces an element of conditional giving through the creation of a trust. Unlike a simple will, which directly distributes assets, a testamentary will establishes a trust into which certain assets are placed for the benefit of named individuals. A designated trustee is then responsible for managing this trust on your behalf after your passing. This option is particularly valuable if you have beneficiaries who are minors or individuals you prefer not to have direct, immediate control over a large inheritance.

The power of a testamentary will lies in its ability to place conditions on how your beneficiaries receive their assets. For example, you can stipulate that a certain amount of money or a particular asset becomes available only when a child graduates from college, reaches a specific age, or gets married. This allows for a more controlled and responsible distribution of wealth, aligning the inheritance with specific life milestones or needs. It provides a layer of protection, ensuring that assets are used wisely and for their intended purpose, especially for younger or less financially experienced beneficiaries.

Living Will: Your Healthcare Directives

While often discussed alongside other types of wills, a living will isn’t a document that dictates the distribution of your assets. Instead, it serves as a crucial statement of your last wishes regarding your medical care and end-of-life decisions. This legally binding document outlines your preferences for medical treatment, including whether or not you wish for life-saving measures to be employed in specific circumstances. For instance, you can specify whether you would want to be kept alive via machines if you were to enter a vegetative state or if you would prefer to be taken off life support.

The primary benefit of having a living will in place is that it alleviates the immense burden of making difficult healthcare decisions from your family during an emotionally challenging time. It ensures that your medical wishes are honored, providing clarity and peace of mind to both you and your loved ones. To guarantee that your medical-related wishes are respected and followed, establishing a living will is an essential component of comprehensive estate planning.

Holographic Wills: The Handwritten Exception

Holographic wills are often misunderstood, conjuring images of futuristic, floating documents. In reality, a holographic will is a will that is entirely written in your own handwriting. What distinguishes them from other wills is that the typical requirements for witnesses and notarization are often less stringent or even waived in jurisdictions that recognize them.

However, the main drawback of holographic wills lies in their potential for ambiguity. Because they are often written without the guidance of legal professionals, the language used can be open to different interpretations. This can lead to significant problems and disputes among your beneficiaries, as one individual might interpret your wishes in one way, while another may have a completely different understanding. This lack of clarity can result in prolonged legal battles and family discord, making them a less desirable option for most people.

Joint Wills: The Shared Estate Plan

Joint wills are typically created by a husband and wife, outlining their shared wishes for the disposition of their assets. A common arrangement is for one spouse to agree to leave their entire estate to the other in the event of their passing. Historically, joint wills were a more common choice due to their perceived efficiency in saving time and money in the estate planning process.

However, times have changed, and the limitations of joint wills have become more apparent. A significant restriction of a joint will is that the surviving spouse generally cannot alter the will without the permission of the deceased spouse’s estate or, in some cases, without the consent of the beneficiaries named in the joint will. 

This inflexibility can create considerable challenges, particularly if the surviving spouse remarries. For example, assets held within a joint will cannot easily be transferred or bequeathed to stepchildren from a new relationship, limiting the surviving spouse’s ability to adapt their estate plan to new family dynamics. For these reasons, joint wills are far less common today, with most couples opting for individual wills or other estate planning strategies that offer greater flexibility.

Oral Wills: The Spoken Word

As the name implies, oral wills are wills that are spoken verbally to one or more witnesses. While they might seem convenient, most states do not legally recognize these types of wills. The primary reason for this lack of recognition is their inherent lack of concrete evidence and the difficulty in accurately deciphering and verifying the testator’s true intentions. Without a written record, there is significant room for misinterpretation, forgetfulness, or even fraudulent claims.

Generally, oral wills are only considered acceptable in very limited and extraordinary circumstances, such as when a person is on their deathbed and facing imminent demise, and there is no opportunity to create a written will. Even in these rare situations, strict legal requirements typically apply, and proving the validity of an oral will can be an arduous process, often leading to challenges and disputes among potential beneficiaries.

Wills vs. Trusts: Understanding the Differences

Both wills and trusts are invaluable tools in estate planning, designed to manage and distribute your assets. However, they operate under different principles and offer distinct advantages. The fundamental difference lies in their timing and how they function. Wills only become effective upon your passing. They are essentially a set of instructions for the probate court to follow in distributing your assets after your death.

Trusts, on the other hand, can be effective during your lifetime or become effective upon your passing, depending on the type of trust created. A trust involves transferring ownership of assets to a trustee, who then manages those assets for the benefit of designated beneficiaries according to the terms of the trust agreement. This allows for greater control over asset distribution, potential avoidance of probate, and can offer privacy that a will does not. While both are set up while you are alive, a will’s power only truly kicks in after your death, whereas a trust can provide ongoing management and protection of assets both during your life and beyond.

Different Types of Trusts: Beyond the Basics

Just as there are various types of wills, a diverse range of trusts exists to cater to specific estate planning needs. Each type of trust offers unique benefits and serves different purposes. For instance, an irrevocable trust is a powerful tool for protecting your assets from creditors and can also offer significant tax advantages. 

With an irrevocable trust, once you transfer assets into it, you generally give up your ownership rights to those assets. A named trustee manages these types of trusts, ensuring they are administered according to your instructions and for the benefit of your beneficiaries. This loss of direct control is often balanced by the asset protection and tax benefits it provides.

Special Needs Trust: Protecting Vulnerable Beneficiaries

As mentioned earlier, a simple will is not suitable if you need to establish a special needs trust. If you are concerned about the financial well-being of a beneficiary with a disability, a special needs trust is an indispensable legal arrangement. These trusts are specifically designed to enable your beneficiaries to receive financial support from the trust without jeopardizing their eligibility for state or federal public assistance programs, such as Supplemental Security Income (SSI) or Medicaid.

Without a properly structured special needs trust, an inheritance could be considered an asset by government agencies, making the beneficiary ineligible for crucial public benefits. This could leave your loved one without the essential financial assistance they rely on for medical care, housing, and other necessities. 

Therefore, if you have a beneficiary with special needs, it is absolutely critical to contact a reputable estate planning attorney to ensure the trust is meticulously drafted to comply with all relevant laws and regulations, safeguarding your loved one’s access to vital governmental support. The complexity of these trusts necessitates expert legal guidance to avoid inadvertently disqualifying a loved one from essential benefits.

Will vs. Trust

Trusts and wills are both excellent tools used for estate planning, but one only works during a significant life event, whereas you can use the other while alive. Wills and trusts are both set up while you are alive, but wills only kick into effect when you pass away. A trust can be used during your life or go into effect when you pass away.

Different Types of Trusts

Just like there are several different types of wills available for you to use, there are other trusts that you can use. For example, you can use an irrevocable trust to protect your assets from creditors. With an irrevocable trust, you give up your ownership rights to assets when you transfer them. A trustee manages these types of trusts.

Special Needs Trust

As mentioned earlier, if you need a special needs trust, you won’t be able to list your wishes in a simple will. If you are concerned about the financial need of a beneficiary with a disability, you can create a special needs trust.

These legal arrangements enable your beneficiaries to receive financial support from the trust without jeopardizing their state or federal public assistance program eligibility. You should contact a reputable estate planning attorney if you need a special needs trust. The last thing you need is for your loved one to lose access to supplemental security income or other federal benefits because the trust affects their income.

What Happens if You Die without a Will?

If you die without a will, the distribution of your assets and property must go through probate. The state handles this process. In general, the court must declare someone as the executor of your estate before they can handle sorting through your debts and assets.

In general, the court allows a portion of your estate to go to your surviving spouse, and they will divide the remaining assets amongst your children if you have any. The court does not take in any factors that may influence it to divide the assets unequally. For example, if you don’t want one child to receive something, the court won’t know that. They will treat all your heirs as equals.

So if you have specific assets that you wish to go to one particular person, you should create a will. This will lessen the burden that your family has to go through with probate court. Depending on the size of your estate, it could take months, if not years, for the probate process to complete.

How to Create a Will or a Trust

If you wish to create a will or a trust, you can do so without the need of an attorney, but that is not recommended. There are specific tax considerations and laws that you must keep in mind when creating these types of documents.

The last thing you want is to create a will online that does not have the proper protection or clear intentions. When you pass away, if the will is not direct on your last wishes, your beneficiaries are left to try to interpret your wishes.

Estate Planning Attorney

If you want to ensure your last wishes are honored and well understood, it would be best if you reached out to an attorney to create the document on your behalf. You may be tempted to pay the small fee online to file your paperwork, but if there are any discrepancies or mistakes made, it will cause problems down the road. Partnering with an estate planning attorney will ensure you have honored all your last wishes.

Help with Different Types of Wills

Making sure that your last wishes are honored is a big deal to your family, so it is best that you get a will that clearly states what you want to happen you pass away.

Whether you need help creating your living will or a simple will, reputable attorneys can help you navigate the different types of wills. If you are ready to create your will or you have questions about what option is best for you and your situation, contact us.

A Step-by-Step Guide on How to Make a Living Will

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What Is a Living Will?

Living wills are quite different from the typical wills you might think of. They have nothing to do with bequeathing assets or property. In fact, a living will is a medical document also known as an advance directive.

An advance directive allows a person to put their end-of-life wishes regarding medical care into a legally binding document. The purpose of a living will is to make sure a person gets the treatment they desire in the event they become incapacitated and cannot communicate their wishes.

How Do Living Wills Work?

Advance directives are common in every state. Individuals can fill out a form detailing their wishes, or they can work with a lawyer to draft their living will. It is up to the person how much detail they provide in the document.

Some of the more common directives include palliative care and extraordinary measures.

Palliative care refers to measures taken to decrease pain and suffering. Extraordinary measures can refer to something like resuscitation. Some people elect palliative care but reject extraordinary measures.

By putting these directives in their living will, a person can rest assured the doctors will have to follow these orders.

For a living will to be valid, it has to meet certain state requirements. It will likely need to be notarized, and often living wills require having a witness present.

You can revoke a living will at any time. It is yours to change and do with what you see fit.

As soon as you sign your living will, it can take effect. Or it can go into effect once the person can no longer communicate their wishes. Either way, medical caregivers3 will rely on your personal communication with them for as long as you are coherent.

Do I Need a Living Will?

Thinking about the end of our lives is awful. Still, every adult can benefit from having a living will. A living will is especially important for those living with a terminal illness.

If you are about to undergo major surgery, it’s also a good idea to have a living will in place.

If you become incapacitated and there is no living will, your doctors will ask your nearest living relatives (spouse, children, siblings, parents) to make medical decisions for you.

That’s a lot to ask of your family members while coping with the possibility of losing you. It can also cause rifts to develop between family members who disagree about the appropriate course of action.

If you haven’t talked to your family about your end-of-life wishes, they are in a trickier position because they don’t know what you would want.

Additionally, there are some states in which family members do not have complete authority to make decisions on your behalf without a living will.

In that case, your family may need to get a court order for certain medical actions. It’s also not uncommon in that situation for doctors to decide which family member to listen to. It can all get very complicated very quickly.

What Are the Benefits of a Living Will?

Now that you understand some of the risks involved in not having a living will let’s talk about the many benefits. We’ve narrowed it down to seven benefits for the sake of expediency, but rest assured, there are more.

Establish Power of Attorney

A medical power of attorney is a legally binding document that gives the responsibility and power of decision-making to whomever you decide to trust with your end-of-life health care decisions.

If you become incapacitated or too ill to advocate for yourself, your power of attorney will advocate on your behalf. Sometimes this person is called a healthcare agent or a healthcare proxy.

It’s essential that you choose a power of attorney you trust with your life since they will literally have your life in their hands.

Prevent Family Disputes

The reality is that family members don’t always agree. When you make a living will, you eliminate the chance of your relatives disagreeing over what kind of care you should receive.

Reduce Burden on Surviving Family Members

When you specify your desires, it makes it a lot easier for your surviving family members to cope with what’s happening. Knowing that you are getting the exact treatment you want will give them reassurance.

Without a living will, every choice your family members face will add to their grief and suffering. Additionally, medical treatments like long-term care can be incredibly costly. Making decisions ahead of time can minimize your cost of care and save your family from a financial burden.

Know Your Outcomes

There is no way to predict when you might become ill or incapacitated. Accidents happen, and diseases turn up without warning sometimes. When you have a living will, you don’t have to wonder what will happen.

Authorize Treatments

Lots of medical procedures require prior authorization from the person receiving the treatment. A living will gives you the opportunity to authorize treatments in advance just in case something happens.

Refuse Treatments

A living will also gives you the freedom to refuse treatments you don’t want. For example, if you aren’t comfortable with the idea of being on life support, you can refuse it in your living will.

Peace of Mind

Overall, having a living will gives you peace of mind. You and your family will feel better knowing everything is taken care of, and you will get the treatment you want when the time comes.

How To Make a Living Will: Step By Step

If the idea of writing a living will still sounds overwhelming, you can relax. We’ve broken it down into seven relatively simple steps for you to follow.

Decide Whether To Hire a Lawyer

An estate planning attorney who knows the laws in your state can help you create a thorough advance directive that covers all the bases.

Estate lawyers understand the living will format and requirements. They’ll make sure to ask the questions you might not think of on your own.

It’s also perfectly fine to make a living will on your own. There are several resources out there, including the National Hospice and Palliative Care Organization, which has a downloadable state-specific form you can fill out.

Know Your State’s Laws

Whether you hire a lawyer or write your living will on your own, it is crucial that you follow the requirements in your state. For residents of South Carolina, it is important to be familiar with the state’s Death With Dignity Act.

In most states, you must be at least 18 years old to create a living will. You also need to be of sound mind. Some states require witnesses and notarization.

Decide What You Want

It is your choice what to include in your living will. You can decide what kinds of treatment to authorize and what to refuse.

Most living wills express desires related to life-prolonging care, food and water, and palliative care.

It’s not easy to decide what kind of care you’ll want at the end of your life. It can be difficult to make decisions without taking into consideration the wishes of your surviving loved ones because it affects them too.

For more ideas, take a look at this complete guide on what to include in your living will.

Revise Your Living Will As Needed

What you put in your living will can change. You may have a different perspective as you grow older. It’s perfectly fine to change your advance directive if you choose.

Share Your Living Will

It’s a good idea to share your living will with select people. Your family, doctor, and health care proxy are good places to start.

Make Copies

Make a few copies of your living will, just to be safe. You should give a copy to your doctor and one to your health care proxy. Then store the original in a safe, secure place where your family can access it as needed.

What is a Simple Living Will in South Carolina?

Creating a simple living will in South Carolina is a thoughtful step to ensure your healthcare wishes are honored if you are unable to communicate them yourself. It’s a key part of what’s known as an advance directive, giving you control over future medical treatment decisions.

Understanding a Simple Living Will

A simple living will, often referred to in South Carolina as a “Declaration of a Desire for a Natural Death,” is a legal document. Its primary function is to state your preferences regarding medical treatment, particularly life-sustaining procedures, should you become terminally ill or be in a permanent vegetative state with no reasonable hope of recovery. It is distinct from a traditional will, which deals with the distribution of your property after death.

Purpose of a Simple Living Will

The main purpose of a living will is to provide clear guidance to your healthcare providers and loved ones about the medical care you wish to receive, or not receive, in end-of-life situations. This removes the burden of difficult decision-making from your family during an emotionally challenging time and ensures that your personal values and wishes about medical intervention are respected. It serves as your voice when you cannot speak for yourself.

Key Decisions Covered By a Simple Living Will in SC

A simple living will in South Carolina typically addresses your desires concerning the use of life-sustaining procedures. These can include decisions about:

  • Cardiopulmonary Resuscitation (CPR): Whether you wish to be resuscitated if your heart or breathing stops.
  • Mechanical Ventilation: Whether you want to be placed on a breathing machine.
  • Artificial Nutrition and Hydration: Whether you wish to receive food and water through tubes.
  • Other Life-Sustaining Treatments: This can encompass other medical interventions that would only prolong the dying process without a reasonable expectation of recovery.
  • Pain Management and Comfort Care: While focused on withholding life-sustaining measures, a living will can also indicate your desire for comfort care to alleviate pain.

It’s important to note that a living will in South Carolina becomes effective only when your attending physician and one other physician certify that you have a terminal condition or are in a permanent vegetative state and your death would occur without life-sustaining procedures.

Eligibility and Requirements for a  Simple Living Will in SC

To create a valid simple living will in South Carolina, you must meet certain requirements:

  • Age: You must be at least 18 years old.
  • Sound Mind: You must be of sound mind, meaning you understand the nature and effect of the document you are creating.
  • In Writing: The living will must be a written document. Oral statements are not legally binding.
  • Signature and Witnesses: You must sign the living will in the presence of two witnesses. Specific rules apply to who can be a witness; generally, they should not be individuals who would inherit from you, your attending physician or their employee, or anyone financially responsible for your medical care. At least one witness cannot be an employee of the healthcare facility where you are a patient.
  • Notarization: While not always strictly required for validity, having the living will notarized can make it “self-proving,” which can simplify the process of it being accepted.

Creating Your Simple Living Will in South Carolina

Creating a simple living will involves careful consideration of your values and preferences regarding end-of-life care. You can obtain standard forms provided by the state or utilize resources from healthcare providers or legal aid. Many people choose to consult with an attorney to ensure the document accurately reflects their wishes and meets all legal requirements in South Carolina. Once completed and properly witnessed and/or notarized, it is crucial to share copies with your healthcare providers, your designated healthcare agent (if you have a healthcare power of attorney), and trusted family members. Keep the original in a safe, accessible place. Periodically reviewing and updating your living will is also advisable to ensure it still aligns with your healthcare desires and personal circumstances.

Where Can I Get a Living Will from in Greenville, SC?

A living will, officially known as a “Declaration of a Desire for a Natural Death” in South Carolina, is a cornerstone of thoughtful estate planning. It serves as a vital legal document, empowering individuals to articulate their preferences for medical treatment, especially regarding end-of-life care, in the unfortunate event they become unable to communicate these critical decisions themselves. 

For residents of Greenville, SC, understanding the available resources for establishing such a document is essential for securing peace of mind and ensuring one’s wishes are honored.

The South Carolina living will come into effect when an individual has a terminal condition or is in a persistent vegetative state, and life-sustaining measures would only prolong the dying process. 

It allows you to explicitly state whether you wish to receive interventions like artificial nutrition and hydration. South Carolina law has specific stipulations for a living will to be valid: the individual must be at least 18 years old and of sound mind, and the document must be in writing. Crucially, it must be signed in the presence of two witnesses and a notary public, with one witness potentially also serving as the notary. 

Strict rules govern who can be a witness, excluding relatives, medical personnel involved in your care, those financially responsible for your care, and beneficiaries of your estate or life insurance. If you are a patient in a hospital or nursing home, an ombudsman from the S.C. Ombudsman’s Office must also serve as a witness. It’s important to remember that a living will is not effective during pregnancy in South Carolina.

A living will is distinct from a last will and testament (which dictates asset distribution after death) and a healthcare power of attorney (which appoints an agent for broader medical decisions if you are incapacitated). While a living will can designate an agent to enforce or revoke it, this power is typically narrower than that granted by a healthcare power of attorney.

Here are the primary avenues for obtaining a living will in Greenville, SC:

Greenville, SC Estate Planning Attorneys

This is widely considered the most reliable and highly recommended approach. Experienced estate planning attorneys in Greenville offer invaluable, personalized guidance. They can meticulously draft your living will to ensure it precisely reflects your unique wishes, no matter how complex, and rigorously adheres to all intricacies of South Carolina law. Beyond the living will itself, these legal professionals can integrate it seamlessly into a comprehensive estate plan, which typically includes a healthcare power of attorney, a durable power of attorney for finances, and a last will and testament. This holistic approach ensures all aspects of your future care and asset management are coordinated and legally sound.

Greenville boasts numerous reputable law firms specializing in estate planning. Directories such as Justia and Super Lawyers can provide listings, with examples like Dobson Law Group and Moon Law being prominent. A consultation with an attorney offers the opportunity to delve into the nuances of these documents, clarify any uncertainties, and make informed decisions that will withstand legal scrutiny. The cost of legal services may vary, but the peace of mind and assurance of legal validity often outweigh the expense.

South Carolina Legal Services (SCLS)

For eligible low-income residents across South Carolina, including those in Greenville, South Carolina Legal Services (SCLS) provides a crucial lifeline. This non-profit organization offers free legal assistance for a broad spectrum of civil matters, which often encompasses the preparation of wills and other vital life planning documents like living wills. To inquire about eligibility and services, individuals can contact their Greenville office directly or utilize their statewide intake line. It’s important to note that SCLS typically has specific income and asset guidelines that applicants must meet to qualify for their pro bono services. Their assistance can be invaluable for those who might otherwise face barriers to accessing essential legal planning.

Healthcare Providers and Hospitals

Many healthcare institutions and systems, such as Prisma Health, a major provider in Greenville, offer resources related to advance directives, including living wills. They often provide general information, educational materials, and even standard forms, such as the official South Carolina “Declaration of a Desire for a Natural Death.” While these resources are beneficial for understanding the general scope and format of a living will, healthcare providers typically advise patients to consult with an attorney for personalized legal advice. The forms provided by hospitals are usually generic and may not fully capture specific, nuanced wishes or address complex family dynamics. Nevertheless, these resources serve as an excellent starting point for familiarizing yourself with the document and initiating discussions about advance care planning.

Online Legal Resources and Templates

The digital age offers a plethora of websites providing free or low-cost living will templates specifically tailored for South Carolina. These online platforms can be a convenient initial step for individuals seeking to draft their own documents. However, caution is paramount when using generic templates. While they may cover the basic legal requirements, they often lack the flexibility to accommodate unique circumstances or detailed personal preferences. South Carolina law specifies particular language and formatting for living wills, and even minor deviations or omissions in a self-prepared document could inadvertently render it invalid or ineffective when it truly matters.

If you choose to use an online template, it is highly advisable to have a South Carolina estate planning attorney review the completed document. This professional review can identify any potential flaws, ensure the document’s legal validity, and confirm that it accurately and comprehensively reflects your intentions. The relatively small cost of a legal review can prevent significant complications and distress for your loved ones during a difficult time.

Beyond Obtaining the Document: Crucial Steps

Simply obtaining a living will is only the first step. To ensure its effectiveness, several other crucial actions must be taken:

  • Open Communication: Have frank and open discussions about your wishes with your closest family members and, most importantly, your primary care physician. This ensures that everyone involved understands your desires and can advocate for them if you become incapacitated.
  • Strategic Distribution of Copies: Once your living will is properly executed, make multiple copies. The original should be given to a trusted individual, such as your appointed healthcare agent (if applicable), or kept in a secure, accessible location at home. Provide copies to your primary care physician, any specialists, and other close family members. Crucially, avoid storing the only copy in a safety deposit box, as it may not be readily accessible in an emergency.
  • Regular Review and Updates: Life circumstances, medical conditions, and personal preferences can change over time. It is highly recommended to review your living will periodically, ideally every few years or after significant life events such as a new medical diagnosis, marriage, divorce, or the birth of a child. South Carolina law allows you to revoke or amend your living will at any time as long as you are competent.

In essence, while various pathways exist for acquiring a living will in Greenville, SC, engaging with a knowledgeable estate planning attorney provides the most robust and personalized assurance that your end-of-life wishes will be clearly articulated and legally enforced. For those with financial constraints, South Carolina Legal Services offers invaluable support. Ultimately, the objective is to create a legally sound and comprehensive document that provides profound peace of mind, ensuring your medical preferences are honored and alleviating potential burdens on your loved ones during challenging times.

Important Considerations:

  • Discussion with Family and Physicians: Regardless of where you obtain your living will, it’s vital to discuss your wishes with your family members and your primary care physician. This ensures that everyone involved understands your desires and can advocate for them if needed.
  • Distribution of Copies: Once your living will is properly executed, make several copies. Provide the original to a trusted individual (like your appointed healthcare agent, if applicable), and give copies to your primary care physician, other healthcare providers, and close family members. Keep a copy in a safe, accessible place, but not in a safety deposit box where it might be difficult to retrieve quickly in an emergency.
  • Review and Update: Life circumstances change, and so might your medical preferences. It’s advisable to review your living will periodically (e.g., every few years or after significant life events like a new diagnosis, marriage, or divorce) and update it as necessary. You can revoke a living will at any time if you are competent.

Do You Need a Living Will in SC?

Right now, writing a living will might feel uncomfortable to think about. In the long-term, you’ll be glad you learned how to make a living will and got it done before too late.

You and your loved ones can rest easy knowing the tough decisions are already made, and you will get exactly the care you desire. Contact De Bruin Law Firm today to schedule a free consultation to discuss your advance directive.

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.

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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