Estate Planning, Wills & Trusts

When a person dies without a Will, he is said to die “intestate” and his property will be distributed according to a formula fixed by statute. In other words, if you don’t have a valid Will at the time of your death, you will not have any control as to how your property is distributed.

For example, if a South Carolina resident dies without a Will, leaving children, the surviving spouse would receive only one half of the estate where there is one – or more than one – child. If the children are under 18, the property cannot be delivered to them and a guardian must be appointed for them. If later the property is to be sold, a guardian must also be appointed for that purpose. Obviously the problems with passing property to minor children, even if that is where the property is desired to go, will create legal problems that might well involve considerable expense. These problems can be avoided with a Will.

Also of great importance to parents with minor children is the care and custody of those children upon the death of both parents. Grandparents, other family members, and godparents do not automatically receive custody of children who do not have a surviving parent. Your Will can specify the individual, as well as a guardian of your minor children. Although such a provision in a Will is not controlling, it will be of great assistance to the court in determining who will receive custody.

Everyone has different objectives when starting the estate planning process. For many, though, some common objectives often include:

• Providing for lifetime financial security
• Providing for the management of assets
• Creating the liquidity to fund tax, debt and administrative needs
• Minimizing estate and gift taxes
• Minimizing assets being transferred to children or others
• Providing for family members and protecting those with special situations
• Gaining peace of mind that all these items area in place before any sort of disability or other issues make it too late to act

Proper estate planning also includes financial planning. Financial planners, accountants, and insurance agents can help identify additional estate planning issues.

TIP: There is no single estate planning “checklist” that will work for everyone! Each person is unique – and requires a personalized approach to create an effective estate plan.

Remember, if you don’t take control of your estate plan, someone else will and default rules will apply – whether or not they make good sense for your particular situation.

Without proper estate planning:

• You lose the ability to name a trusted individual to act on your behalf if you become disabled or unable to manage your own affairs during your lifetime.
• Your assets may not go where you want them to go.
• You forfeit your right to name a personal representative, trustee and guardian.
• You lose the opportunity to protect assets.
• You may pay more in estate taxes.

TIP: Your estate plan need not be overly complicated, but it should be well thought out and it should be your plan based on your decisions and your goals. Estate planning allows you to control the outcome of your life’s efforts.

South Carolina presently has a statute that provides if your Will was properly executed in another state, it will be considered valid in the state of South Carolina.

However, it is usually desirable for a resident to execute a new Will in South Carolina for several reasons. Since your out-of-state Will was drawn with the laws of the other state in mind, it may well be that your Will now needs to be changed in light of South Carolina law.

Additionally, if you should die while a resident of South Carolina, your Will would have to be probated in the South Carolina courts.

The “providing of a Will” requires that a witness to the Will swear that he saw the decedent sign the Will. Since your out-of-state Will would have out-of-state witnesses, the extra time and cost of providing your out-of-state Will could be considerable.

The above line is one of the most often quoted statements we hear from our clients. Once a client realizes that it is in his or her best interest to have a new Will executed, a client will often tell us, “All I need is a simple Will.”

Generally, what that statement means is that the client feels that his or her estate is small enough that it will not be affected by state or federal estate taxes.

Determining whether or not there are any tax liabilities that you should be aware of is one of the responsibilities placed upon us as your attorneys. However, even in those estates where there is no state or federal estate tax liability, we have found that our “Will clients” generally require more than just the drafting of a death document. For that reason, we offer a service which we refer to as Simple Estate Planning.

Estate Planning is often thought of in respect to large estates which are subject to estate tax liability. However, it has been our experience that regardless of the size of the estate, a certain amount of planning is necessary in order to preserve and maintain the estate.

A Trust Agreement is nothing more than your written instruction directing someone (the “trustee”) on how to manage your property (the “corpus”) for the benefit of your heirs (the “beneficiaries”).

There are four components to a trust: (1) the settlor (the person who creates the trust), (2) the trustee (the manager of the trust), (3) the beneficiary (the entities or individuals receiving benefits from the trust), and (4) the corpus (the trust property/assets).

TIP: Each component is necessary to create a valid trust. For example, a trust without a corpus may not be valid. It is for this reason that most are funded with something at the time it is created, even if it is only $1.00.

A Trust is often an integral component of an estate plan. Deciding upon the type of trust best suited for your particular estate plan should be based on consideration relating to your particular goals and objectives.

Types of Trusts