FAQs: South Carolina Wills and Trusts
The following is offered for informational and educational purposes only. It is not legal advice and should not be substituted for legal analysis of a particular situation.
1. Do I need a Will? You very probably do need a Will. A Will is your statement of what is to happen concerning your assets and arrangements after you're gone. If you don’t have a Will, you leave your final arrangements and property to chance. Chances are, things will not all be done as you would wish. To ensure that your wishes are honored, you need a Will.
2. What if I never make a Will? If there is no Will, then the laws of intestacy of the state of last residence control disposition of assets after someone is deceased. Those laws are typically found in the state’s probate code. Intestacy statutes vary by state. In South Carolina, the Probate Code states that if a decedent is married and had children, then assets are divided between children one the one hand and the surviving spouse on the other hand. The surviving spouse would have priority to serve as personal representative, but the Probate Court decides who to appoint. If there were no children, then all assets would go to the spouse. If there were children and no spouse, then assets are divided equally between children. Each child would have equal priority to serve as personal representative. If the children could not decide among themselves who would serve as Personal Representative, then the Probate Court would decide who to appoint as Personal Representative. If no one else applies to be appointed as personal representative, then a creditor can apply to be appointed as personal representative of the estate.
3. Do I need any documents in addition to a Will? Yes. I suggest that my clients consider a Health Care Power of Attorney and a Durable Power of Attorney for a more complete plan. A Health Care Power of Attorney allows the person to designate a health care agent to make decisions if the client is incapacitated. It avoids the type of situation that Teri Schiavo’s family endured some years ago that was widely reported. A Durable Power of Attorney designates someone to handle financial matters for the client if he or she becomes incapacitated. Having both documents can avoid much acrimony in a family, and can tremendously reduce or even avoid associated legal costs. Both Health Care Powers of Attorney and Durable Powers of Attorney have particular statutory requirements in South Carolina.
4. Is using a Will the best way to dispose of my assets? Perhaps, perhaps not. An estate planning attorney can assist you in determining your needs. After discussing their family situation and other circumstances, many clients conclude that a Will alone is not sufficient to fully address their needs. For example, clients with young children often decide that a trust is necessary to regulate access to the parents’ assets. A simple Will without a trust can’t accomplish that.
5. Can a Trust be included in a Will? Yes, a Trust can be included in a Will. But to implement such a trust (a “Testamentary Trust”), probate administration is necessary. To avoid probate administration (often simply called “probate”), many clients prefer to use a Revocable Trust, also sometimes called an Inter-vivos Trust. A Revocable Trust is implemented during the client’s lifetime and continues after the client is gone. Clients may use Revocable Trusts to handle and distribute their assets after they are gone instead of having their assets transferred using probate administration.
6. If I have a Revocable Trust, do I still need a Will? Yes. Most attorneys who help clients implement a Revocable Trust plan also suggest that a “Pour-over Will” should be used in tandem with the Trust. A Pour-over Will routes any remaining probate assets to the Revocable Trust. A Pour-over Will ensures that even if the client had probate assets remaining in his or her name, those assets will be handled as the client describes in his or her Revocable Trust. Also, parents of young children or incapacitated adult children usually want to nominate a Testamentary Guardian to care for their children if they are gone. South Carolina law allows this to be done, but only in a Will, not in a trust.
7. What does an estate plan cost? It depends upon the client’s wants and needs. The question is like asking what cars cost. It depends on what kind of car the buyer wants and needs, including the buyer’s budget. While attorneys can’t generally work for free, an appropriate plan can usually be created even with a modest budget.