Estates & Probate

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Estates & Probate2019-12-08T20:15:44+00:00

At Klok Law, we offer simple estate planning packages for singles and couples. These documents are not just for the rich and famous, everyone needs a will regardless of much money you do, or do not, have. Ask yourself some questions:

  • Does it matter to you who gets your property when you die?
  • Does it matter to you who gets your money when you die?
  • Does it matter to you who is appointed as the guardian of your minor children if you die before they reach legal adulthood?

If you answered yes to any of these questions, you need a last will and testament. If you don’t have a will, the state decides who receives your property.

AVOIDING PROBATE2019-12-06T12:05:05+00:00

There are several ways to avoid probate. As part of your estate plan you should look into these options:

Revocable Living Trust. Upon your death, your trustee may distribute your trust property without probate.

Pay-on-Death Accounts and Registrations. You can convert your accounts to pay-on-date accounts where you list a beneficiary. Upon your death, the money goes directly to your beneficiary and does not go through probate.

Joint Tenants with Rights of Survivorship. When real property is titled as joint tenants with rights of survivorship, the property automatically transfers to the surviving owner when you die and does not go through probate.

Gifts. You can give away property while you are alive to reduce the amount of your estate and those gifts do not go through probate.

PROBATE2019-12-06T12:03:18+00:00

Many people, if not most, own some assets and/or debt at the time of their death. Upon death, assets and liabilities are transferred to the “estate” of the deceased.

If the deceased dies with a will, the will control how the estate is distributed. If the deceased dies without a will, they are considered having died intestate and the estate will be distributed according to state law. The process of closing an estate is done through the probate court system.

DURABLE POWER OF ATTORNEY FOR FINANCIAL MATTERS AND OTHER DIRECTIVES2019-12-06T12:02:37+00:00

A durable power of attorney allows you to appointment someone else to manage your finances in the even you become incapacitated or are unable to make financial decisions yourself.

The agent’s power under a durable power of attorney ends when you die. It is important that you pick someone you trust. It is also important that the person you choose to be your agent is capable of handling your financial matters and has the time and energy to do so.

DURABLE POWER OF ATTORNEY FOR HEALTHCARE2019-12-06T11:59:47+00:00

A durable power of attorney for healthcare is a legal document where you appoint someone to be your agent and in the event you are unable to make or communicate decisions about your health care, your agent can make the decisions for you.

You may appoint one person as well as alternates if your first agent has died, is unavailable or has refused to act. This Healthcare Power of Attorney are meant to cover situations when you are not mentally competent to make decisions. You can also decide in advance if you consent to the donation of all or any of your tissue or organs for transplantation.

If you have a living will, your agent will not have authority to make any decisions where the living will applies. This document can also contain your directives regarding life-sustaining treatment and tube feeding. You have three choices:

Grant Discretion to Your Agent. You do not want your life to be prolonged nor do you want life-sustaining treatment if your agent believes the burdens of the treatment outweigh the expected benefits. Your agent will consider the relief of suffering, your personal beliefs, the expense involved and the quality as well as possible extension of your life when making decisions.

Withhold or Withdraw Treatment. You do not want your life to be prolonged and do not want life-sustaining treatment.

Maximum Treatment. You want your life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to your condition, the chances you have for recovery, or the cost.

If life-sustaining treatment is withdrawn or withheld, you have a choice between the following three options:

Grant Discretion to Your Agent. You do not want your life to be prolonged by feeding if your agent believes the burdens of tube feeding outweigh the expected benefits. Your agent will consider the relief of suffering, your personal beliefs, the expense involved and the quality as well as possible extension of your life when making decisions.

Withhold or Withdraw Treatment. You do not want your life to be prolonged by tube feeding.

Maximum Treatment. You want tube feeding to the greatest extent possible, within the standards of accepted medical practice, without regard to your condition, the chances you have for recovery, or the cost.

LIVING WILL2019-12-06T11:59:08+00:00

In South Carolina, a living will is also known as a Declaration of Desire for a Natural Death. This legal document contains your advance directive, meaning your instructions regarding your medical care if you become incapacitated or seriously ill and cannot communicate your preferences.

A living will comes into action when you are terminal or in a state of permanent unconsciousness and do not want any life-sustaining procedures to be used to prolong your dying under certain conditions:

  1. When you have a condition certified to be a terminal condition by two physicians who have personally examined me, one of which is your attending physician, and the physicians determine that your death could occur within a reasonably short period of time without the use of life-sustaining procedures, or
  2. Both physicians certify that you are in a state of permanent unconsciousness and the application of life-sustaining procedures would only prolong your dying process.

In this limited circumstance, you direct that you be permitted to die naturally with only the administration of medication, or any medical procedure necessary to provide you with comfort care. In addition, you will spell out your instructions regarding artificial nutrition and hydration. You will direct that

  • Artificial nutrition or hydration BE PROVIDED through any medically indicated means, including medically or surgically implanted tubes, or
  • Artificial nutrition or hydration NOT BE PROVIDED through any medically indicated means, including medically or surgically implanted tube.

You also have the option of instructing that you do want treatment to ensure your comfort and to relieve pain and suffering and minimal intravenous fluids to avoid discomfort.

You can also appoint someone, an “agent”, to revoke, or enforce, your living will on your behalf. You can appoint one person for revocation and a different person for enforcement.

POUR-OVER WILL2019-12-06T11:39:46+00:00

With a pour-over will, all property passing through your will at death is poured into your trust. Then, your property is distributed according to the trust document.

It is important to title as much as possible into the trust before your death. Pour-over wills allow you to add property into the trust that you may have forgotten to do. While you will still need to probate the will, the distribution is to the trust, which simplifies the matter.

TRUSTS2019-12-06T11:39:25+00:00

Using trusts to avoid probate is a common estate planning tool. A trust allows you to keep your documents private after your death.

Many items can be transferred by including a list of property with the trust document. But, titled property, like cars, houses, bank accounts, investment accounts, must be titled in the name of the trust. Otherwise, those assets will end up in probate.

INTESTATE2019-12-06T11:38:56+00:00

If you die without a will, South Carolina sets out who will inherit your estate. If you are married and your spouse survives you and you have no “issue”, your spouse gets everything.

Surviving issue means lineal descendants, a person who is the direct line to an ancestor, naturally or by adoption. Examples include child, grandchild, great-grandchild and so forth. If you have children, then half goes to your spouse and the other half goes to your surviving issue.

If you are not married, generally your estate will be distributed as follows:

  1. To your issue
  2. If no surviving issue, then to your parents
  3. If no surviving issue, parents or issue of parents, then to grandparents or issue of grandparents
  4. If no surviving issue, parents or issue of parents, grandparents or issue of grandparents, then to great-grandparents or issue of great-grandparents
  5. If you have no family left at all, then to the State of South Carolina
DIVORCE LAST WILL AND TESTAMENT2019-12-06T08:49:59+00:00

A Last Will and Testament is a legal document that has your instructions on how you want your assets to be distributed after your death.

If you die without a will, you are considered to be “intestate,” meaning literally you died without a will. The “Testator” (man) or “Testatrix” (woman) is the person who creates the will. It is very important to have a will if you have minor children so that you can appoint a guardian, the person who will become your minor children’s substitute parent in the event of your death. In South Carolina, the Testator or Testatrix appoints a Personal Representative to carry out their will’s provisions through Probate Court. The Personal Representative is sometimes referred to as the Executor. The Personal Representative is responsible for administering the estate, such as paying outstanding debts and taxes, gathering property, keeping financial records, and distributing your property to your beneficiaries. Beneficiaries are individuals or legal entities that will receive property under the terms of your will.