What is Estate Planning?

Why a Will is Needed

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.

Is My Out-of-State Will Good in South Carolina?

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.

All I Need Is a Simple Will

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.

What Is 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. Simple Estate Planning offers the client consultation in the following areas:

Life Insurance: Life insurance, of course, is not a substitute for a will. However, as counselors, we strongly recommend a proper life insurance program depending upon the particular facts and circumstances of the individual case.

By reviewing your life insurance program, we can give you our opinion as to whether or not you have too little insurance, too much insurance, or the wrong kind of insurance. Often a review of life insurance programs will indicate areas in which a client can actually save money without loosing the protection which is needed for his or her family.

Funeral Plans: People who wish to leave their personal and financial affairs in order when they die often do not realize that funeral planning is part of sound estate planning. While they otherwise provide carefully for the allocation of their resources and the protection of their families, many fail to prepare instructions concerning funeral arrangements. The consequences, especially if resources are limited, can cause needless anguish and expense for survivors.

Making funeral plans in advance is prudent because (a) individuals can obtain the type of services and arrangements they prefer; (b) decisions can be made after careful consideration of alternatives and cost; and (c) families are spared the difficulties of making decisions and reaching agreements on arrangements in a crisis.

The logical time to make the funeral arrangements is at the same time the will is prepared. In our Simple Estate Planning we discuss funeral arrangements with our clients and we will offer the appropriate information for those who indicate an interest in such planning.

Joint Ownership of Property: Another area which we cover in our Simple Estate Planning is that of the form of ownership of property. We are often asked as to whether or not it is wiser to own property jointly or just in the name of one individual. There is no simple "yes" or "no" to that question as it depends upon the particular facts and circumstances. We review this issue with you and discuss the benefits and/or drawbacks to joint ownership.

Gifts to Minors: Where appropriate, we will consult with you and discuss the possibility of making gifts to minor children. This is particularly important where the gift is an income property, savings account, in that considerable income tax savings may be realized by gift giving.

Property Tax: Often we are called upon to do Simple Estate Planning for individuals or couples who have recently moved to South Carolina, and older individuals or couples who wish to put their affairs in order. One of the more often asked questions from these individuals involves the system of taxation in the state of South Carolina and in Horry and Georgetown Counties in particular. In our Simple Estate Planning, we will further explain the benefits of the South Carolina homestead exemption laws if they are applicable.

Durable Power of Attorney

A will, of course, is only effective upon the death of the individual. However, often it is not death but a severe disability which causes both legal and personal problems with our clients.

For example, it is not uncommon for an individual to be rendered incapable of handling his own affairs because of either a physical or mental disability brought on by illness or an accident. If the individual has not made other arrangements, it may well be that a Guardian or Conservator will have to be appointed by the court in order to carry on the affairs of the disabled individual.

However, South Carolina now has a law which allows the individual to plan in advance for the possibility of such tragic circumstances. By properly drafting and executing a Durable Power of Attorney an individual can name another to act on his or her behalf. This power applies not only to business transactions but also to personal dealings such as hiring and firing medical personnel, making decisions about hospitals, treatment, etc.

The Durable Power of Attorney must be executed strictly according to law but once properly prepared, executed and filed in the Register of Deed's Office, this power of attorney is valid even if the individual later becomes completely physically or mentally disabled. The Durable Power of Attorney, where appropriate, is included in our Simple Estate Planning.

Legal Fees

The fees which we charge are based upon the work performed and the responsibility taken.

The above services will be done on an agreed fixed fee, which will be gladly quoted to you upon request. Our office will also render services in addition to the above at its usually hourly rates in the event that they are needed and requested by the client.

The above services will be done on an agreed fixed fee, which will be gladly quoted to you upon request. Our office will also render services in addition to the above at its usual hourly rates in the event that they are needed and requested by the client.

Due to the fact that it is difficult in estate planning to obtain sufficient information to give a meaningful estimate, we do provide a FREE estate planning consultation. At that time following the initial consultation, we will either agree on a legal fee for the work we recommend to you or you will not owe us anything for the initial consultation.

Resources

Books On Medical Decision-Making

Living Wills Made E-Z Includes Power of Attorney for Healthcare (Made Ez Products. 2001)
Kessler, David, The Needs of the Dying (Quill, 2000) Kuhl, David. Mu7t Dying People Want (Public Affairs, 2003)
Lieberson, Alan D., Advance Medical Directives (West, 2004)
Meisel, Alan and Cerminara, Kathy L., The Right To
Die (Aspen Publishers, 2003).
William Molloy, Let Me Decide: The Health and Personal Care Directive That Speak for You When You Can't (Biblio Distribution, 2003)

Websites On Aging And Critical Care Issues

www.critical-conditions.ora
www.abanet.ora/acing/toolkit/
www.ama-assn.ora/public/booklets/Livgwill.htm
www.help4srs.com
www.mag.org/content
www.nolo.com
www.Medicaldirective.org
www.caregiver.ora

Internet Resources For The Elderly

www.aoa.gov - Federal Government's Agency on Aging
www.eldercare.gov - website of the Agency on Aging
www.medicare.gov - national website for Medicare
www.cros.gov - The government's center for both Medicare and Medicaid
www.socialsecurity.gov - Social Security website
www.aarp.org - American Association of Retired Persons website
www.carema.nagen.org - helpful website on caregiver resources
www.nia.nih.gov - providing information on gerontology
Articles Discussing the Moral, Ethical and Religious Issues of Medical Directives
Rabbi Yitchok Breitowitz, The Right to Die:A Halachic Approach, found at www.us-israel.org/jsource/Judaism/righttodie.html
A Discussion of the topic and how different cultures deal with the issue can be found at www.ethics.acusd.edu/applied/euthanasia/