Estate Planning

The only thing that we all know will happen to us is death.  South Carolina, like most states, has a separate court system to handle the laws and claims related to death – the Probate Court.  At Kehl Culbertson Andrighetti, we can help you throughout the process, whether it is drafting a will or administering the estate of someone who has died.  Some important FAQ’s, terms, and considerations, are contained here for your information.

 
 
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FREQUENTLY ASKED QUESTIONS

 

+ I DON'T OWN ANYTHING. WHY DO I NEED A WILL?

You own more than you think. And you will acquire more things and property as you get older and progress through life. By executing a Last Will and Testament, you can control where your assets and property will go after you die, rather than leaving it up to the laws of the State of South Carolina. A Will is a legal document containing instructions to be carried out after you die, including your choice of guardian for your children, the beneficiaries of your assets, and who will serve as your estate’s Personal Representative.

If you do not have a Will, when you die, your assets will be distributed according to law: one-half to your surviving spouse, one-half to your surviving children – or, if you have none, to your parents, sisters, brothers, nieces, nephews, or other relatives. Friends, boyfriends, girlfriends, domestic partners, and favorite charities will receive nothing. If you die with no living relatives, the State of South Carolina will be the beneficiary of your estate.

+ DOES A WILL COVER EVERYTHING I OWN?

No. Generally speaking, your Will affects only those assets titled in your name at the time of your death. Excluded assets can include life insurance policies, cars, bank accounts, and property in trust – all of which can either have contractual beneficiaries or joint ownership. In South Carolina, for example, your car title may be held as “You AND/OR Your Spouse,” which means that either or both of you own the car. Real estate cannot be titled in this way, as we will discuss in more detail later.

Also, because your list of personal property will invariably change between the time you execute your Will and the time of your death, most Wills provide for the distribution of your personal property by means of a Personal Property Memorandum, which is a simple, non-legal document that you can change from time to time without having to amend your Will. For example, if you want your antique radar detector to go to your Cousin Purvis, you can jot that down in your Personal Property Memorandum, and Purvis will get it.

+ HOW DO I MAKE A WILL?

There are Will forms available at office supply stores and on the internet. These are never a good idea. You should consult an attorney to prepare your Will. When you call us, the first thing we will do is provide you with an Estate Planning Questionnaire. Based upon your instruction, we will draft your Will, review it with you carefully, and make sure that it is executed properly. If a Will is not executed properly according to the requirements of South Carolina Probate Law, it is not considered valid and will not be legally binding.

+ I HAVE A WILL FROM ANOTHER STATE. IS THAT GOOD ENOUGH?

Maybe. However, because South Carolina has specific requirements regarding execution, it is vitally important that you have a South Carolina review your out-of-state Will to ensure enforceability and validity.

+ CAN I CHANGE OR REVOKE MY WILL?

Yes, and it’s a good idea to review it periodically to make sure your Cousin Purvis is still deserving of that radar detector. Even if we didn’t draft your original Will, we can assist you with amending your Will (amendments are referred to as “Codicils”) or revoking it. If you get married or divorced, or if you have any other major changes in your family, such as births or deaths, you should review your Will.

+ WHAT HAPPENS WHEN SOMEONE DIES?

We’re not here to help with the existential stuff, but we can certainly help with the legal ramifications. When someone dies, their estate must be administered through the Probate Court. If they died with a Will, their estate will be administered according to their Will. Depending on the size of the estate, it will either be a Regular Estate (any real property, or personal property worth more than $25,000) or a Small Estate (no real property and personal property worth less than $25,000). Even if the person died with no belongings, an estate might be necessary for legal actions (i.e., a wrongful death case).

The Will should be filed with the Probate Court within thirty (30) days of death. A Regular Estate will generally take about a year to complete, if all the paperwork is submitted on time. South Carolina requires that estates remain open at least eight (8) months to allow creditors to submit claims. A Small Estate can be handled much more quickly, but cannot be opened until thirty (30) days after death.

+ WHAT OTHER ESTATE PLANNING DOCUMENTS DO I NEED?

We generally recommend and provide to our clients three important documents: (1) a Last Will and Testament, (2) a Durable Power of Attorney, and (3) a Living Will. The Durable Power of Attorney will allow someone else to make legal, financial, business, and health care decisions for you while you are alive if you are unable to do so (whether it’s because you’re out of the country or unconscious). A Living Will (also called a Declaration of a Desire For a Natural Death) is an important health care directive that provides instructions as to whether you want to receive artificial nutrition and hydration if you are in a coma or unconscious for an extended period.

We will also discuss all your property with you. In South Carolina, there are multiple ways to hold title to real property, and we might recommend a change to your real estate holding(s). For example, a married couple will frequently own property as Joint Tenants With a Right of Survivorship, which means that when one member of the couple dies, that person’s half-interest in the property passes immediately to the surviving spouse, without having to go through the probate process.

+ AM I SUBJECT TO “DEATH TAXES”?

First, let’s rephrase that question. “Is My Estate Taxable?” The answer is (no offense), probably not. If your estate is valued at $5,340,000 or less and you die in 2014, the estate will not owe any federal estate taxes. South Carolina does not have an estate tax.

 

COMMON DEFINITIONS

 

+ BENEFICIARY

a person or entity who has any present or future interest in an asset. Your beneficiaries are the people who will “benefit” under your Will, because they will receive assets from your Estate.

+ CONSERVATOR

a person appointed by the Probate Court to manage the estate and assets of a Protected Person.

+ Decedent

a deceased person.

+ Deed of Distribution

When an estate contains real property that has not been sold during administration, that property must be transferred from the decedent (i.e., out of the decedent’s name) to the heirs or beneficiaries who are inheriting it. This is accomplished with a special kind of deed called a Deed of Distribution. • Note: As the preparation of a deed is technical and complex, and even the tiniest mistake in wording can lead to major title issues and other headaches down the road, the Probate Court strongly recommends seeking the assistance of an attorney when preparing a Deed of Distribution (or any deed for that matter).

+ DEVISE

when used as a verb, to dispose of any real or personal property by Will.

+ DEVISEE

the legal term for the beneficiaries under your Will.

+ DURABLE POWER OF ATTORNEY

a legal document that authorizes someone else (called your “Agent” or “Power of Attorney,” or sometimes abbreviated “POA”) to act on your behalf in a legal or business matter. A Power of Attorney is only valid and effective while you are still alive, but a Durable Power of Attorney is valid and effective even if you become incompetent.

+ ESTATE

the property of a deceased person, including all types of property (real estate, personal property, interests in property).

+ HEALTH CARE POWER OF ATTORNEY

a legal document that authorizes someone else to act on your behalf to make health care decisions if you are not able to do so. The agent’s decisions do not trump yours and only apply if you are unable to make your own decisions (unconscious, incompetent).

+ HEIR

a person who is entitled to receive your property if you die without a Will.

+ INTESTATE

a person who dies without a Will. Your Estate is referred to as an Intestate Estate.

+ PERSONAL REPRESENTATIVE

formerly referred to as an “Executor,” this is the individual or individuals you designate to administer your Estate. In most cases, a husband will appoint his wife as Personal Representative, and vice versa, but your PR can be any person or entity you choose.

+ PROBATE

the name of the process by which assets are transferred from a decedent to his or her heirs or devisees. The Probate Court is the court with jurisdiction to handle Estate matters, and the South Carolina law governing such matters is known as the Probate Code.

+ PROTECTED PERSON

a minor or incapacitated person.

+ TESTATE

a person who dies with a Will. Your Estate is referred to as a Testate Estate.

+ TRUST

a legal arrangement that allows a third party, or trustee, to hold assets on behalf of beneficiaries. Trusts can be arranged and set up in many ways and can specify exactly how and when the assets be given to the beneficiaries. Trusts are an important estate planning tool, and can also be used to protect assets from liability during your lifetime.

+ WILL

the legal document that contains instructions for the distribution of your Estate and various other matters after your death.

 
 

 

 


Formal Probate Estate Administration & Litigation

 
 

 

The administration of estates and other probate proceedings in South Carolina are typically classified as either “formal” or “informal” depending on their complexity and/or the need to resolve certain underlying issues. Probating a relatively simple estate, for example, is typically an informal proceeding and, thus, largely administrative in nature. Matters that involve more complicated legal questions tend to be formal, which typically means that their resolution will require litigation and/or increased judicial involvement and oversight. While not an exhaustive list, the following issues almost always require “formal” probate: 

  • Testacy/Will Validity – Determining whether the decedent had a Will and whether it was validly executed;
  • Will construals – Resolving ambiguous terms or other inconsistencies in a Will; 
  • Will contests – Contesting the validity of a Will or seeking a deviation from terms contained in a valid Will;
  • Lost or destroyed wills – Probating a Will copy when the original cannot be located;
  • Formal appointment, removal or restraint of the Personal Representative;
  • Determination of heirs (when it has been more than ten years since the death of the decedent);
  • Cremation – Obtaining approval for cremation;
  • Omitted child or spouse – Inadvertent or unintentional omission of a spouse or child in a Will;
  • Common law marriage – Establishing a marital relationship with decedent for the purposes of inheritance;
  • Family agreements & court-approved settlements – Varying distribution of estate assets by agreement of interested parties.

Whether you are simply seeking general counsel and advice about the estate administration process, facing an incredibly complex, difficult, and stressful situation relating to the death of a friend or relative, or are generally overwhelmed and aren’t sure where to even begin, our experienced attorneys and staff can assist you in navigating all aspects of the probate process. 

 
 
 

Guardianships & Conservatorships

 

The Probate Court also oversees matters related to the protection of people and their property (commonly referred to as Protected Persons Proceedings). If you know a person who, because of a temporary or permanent disability, can no longer manage his/her money or make decisions about his/her personal or medical care, that person may need a court-appointed Guardian or Conservator. 

A Guardian or Conservator may also be necessary in situations where a minor child who is disabled reaches the age of majority. While parents generally have the authority to make decisions on behalf of a minor child (and be privy to health-related information that is otherwise protected by HIPAA), that authority terminates as soon as the child turns 18. Thus, in order for a parent to continue making decisions for an adult child, the parent must petition the Probate Court to be appointed as the child’s Guardian.

What is the role of a Guardian?  In South Carolina, a Guardian handles personal and custodial matters for an incapacitated adult (aka “protected person” or “ward”). The incapacity may be due to mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs or alcohol, or other causes, except minority. A Guardian must decide where the person will live and make provisions for his/her care, comfort and maintenance, including mental and health care decisions. 

What about a Conservator?  A Conservator manages financial affairs or property for an incapacitated adult or for a minor. The Conservator must manage and protect the property, and report periodically to the court about the assets, receipts and disbursements of the estate. No expenditures can occur without written Court order. If you are appointed conservator by the Court, it will be your responsibility to dutifully handle the financial situation of the protected person as stipulated by the Court. 

If you have a friend or family member for whom you feel additional protection is needed, or if you simply have questions about the guardianship or conservatorship appointment process, we are here to provide answers and help you determine the best course of action for your particular situation. 

HELPFUL LINKS:

 
 
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Our Probate and Estate Attorneys:

 
 
 
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