Wills and Trusts
Many people think about making a Will when they go through big, exciting life changes like getting married or having their first child. Others decide to “put their affairs in order” before undergoing medical care or facing illness. Whatever your motivation, estate planning not only puts your mind at ease but also is a future gift to your family and loved ones.
The basic building block of an estate plan is a Will, which sometimes contains one or more Trusts. A valid Will provides legal direction for your loved ones to dispose of your property and settle your affairs after your death. A Trust allows you to set aside funds to benefit your children, pets, charity, or other organization.
Why Make a Will?
A Will is a legal document that allows you to express your wishes about how you want your property distributed after your death. You can make specific bequests, such as giving items directly to certain people. You also may make charitable donations, arrange for the care and guardianship of minor children or other dependents, and provide for your animal companions.
If you die without a Will (“intestate”), everything you own will be distributed according to South Carolina intestacy laws. These provisions may not be how you would choose to leave your property, and the probate courts will decide any ambiguous or contested issues between your heirs. If you have minor children or other dependents, your failure to provide guidance for their care and custody could mean they are placed in the foster care system until the courts evaluate and approve a guardian. If you have no natural heirs or no one can be located, everything you own will become the property of the State of South Carolina!
Even if you do not have a lot of property or assets, a Will can make things much easier for your loved ones after your death. Without a Will, it can be difficult and time-consuming for someone else to access and close your financial accounts, turn off your utilities, sell your home or end your lease, and conduct other business matters related to your death. When you make a Will, you give someone the legal authority to act on your behalf. This Personal Representative can take care of necessary tasks without unnecessary delays, stress, or hassle.
What Is a Trust and Why Would I Need One?
Establishing a Trust is a way to designate money to be paid to a person or spent on their behalf over a set period. For example, a Trust for a minor child might direct that their guardian receives a certain amount of the Trust proceeds each month for the child’s care until they turn eighteen or twenty-one. A Trust might also continue to pay regular income distributions to the adult child but not allow them to spend the entire inheritance.
Creating a Trust is as simple as writing down its terms (what amounts to distribute, how frequent, and to whom), funding the Trust with money or other valuable property, and designating someone to oversee its administration and management (the trustee). The Trust document should also be signed and notarized to be legally binding.
A Trust can disburse income to an individual directly, an entity like a university or scholarship fund, or an individual as guardian for a minor, dependent adult, or pet. You can establish a Trust in your Will to begin when it is entered with the court after your death, or you can create a “Living Trust” during your lifetime. There are a lot of benefits to creating and having a Living Trust. If you are interested in creating a Trust, you should discuss your options with an estate planning attorney.
How Do I Make a Legally Binding Will in South Carolina?
There are only a few requirements to make a Will legally binding in South Carolina. Any adult (eighteen years or older) can make a Will. It must be in writing (i.e., not oral or videotaped), signed by the person making the will (the “testator”), and signed by two other people as witnesses. It is best if the two witnesses are not named recipients of property in the Will because doing so may void their gifts. Although some states recognize a person’s handwritten wishes as a “holographic” will, South Carolina does not unless the writing is signed by the testator and witnessed appropriately.
Although it is not required, preparing a self-proving affidavit along with a Will can save time and streamline the process for entering a Will after the testator dies (“probate”). This document makes it unnecessary for the witnesses to personally appear in proceedings to authenticate the Will.
Are There Alternatives to a Will?
A comprehensive estate plan package often includes a variety of ways to distribute your property after your death. Some assets, like the proceeds from life insurance policies, pass directly to your designated policy beneficiaries; these are not part of the probate process. Property you own in joint tenancy or tenancy by the entirety, like a family home, becomes the property of its co-owner(s) automatically. If you establish a Living Trust, it continues after your death and is not included in your probated estate.
Arranging the disposition of some of your property using tools like these can reduce the complexity of distributing your estate and the tax consequences for your survivors. However, they do not replace a Will. A Will ensures your estate is fully transferred and resolved, allows you to bequeath sentimental items directly, and, most importantly, designates a personal representative to coordinate everything and tie up any loose ends.
Can My Relatives Challenge a Will?
After your death, your personal representative will file your Will with the probate court, compile all the estate assets, and pay any outstanding debts and expenses. Once the debts are paid, they will divide and transfer your property per your instructions.
In general, you may leave your property to whomever you wish, but there are some exceptions. Notably:
- Your personal representative must pay your debts before giving away any property, which may cause specific bequests to fail (e.g., if your vintage motorcycle must be sold to pay your outstanding bills).
- You cannot leave someone property that is not transferable on death, like a lifetime annuity or your interest in a joint tenancy (which automatically passes to the other joint tenants).
- You cannot make bequests that are illegal or violate public policy.
You do not have to leave a single penny to your children. However, if you are married at the time of your death, your surviving spouse can be entitled to a share of your estate. If you leave them less than 1/3 of your total estate assets, they may appeal to the probate court to make up the difference.
Spouses can waive their rights to this “spousal share,” but it must be done in writing before the death of either spouse (in a prenuptial or postnuptial agreement, for example).
If you marry or have children after making a Will and your Will does not provide for a spouse or children, the probate court may assume this was an unintentional omission. If it does not seem intentional, your spouse or child may be able to collect the share of your estate they would be entitled to if you die without a Will. You can avoid this kind of confusion by updating your Will when you marry; once you do, a well-drafted Will should provide for any future-born children.
Your Will could also be challenged if someone believes you were not legally capable or of sound mind when you made it, that someone forced or tricked you, or that you were the victim of some other fraud or compulsion. Using an estate planning attorney dramatically reduces the chances of these kinds of challenges.
How Do I Change or Revoke a Will?
You can change or revoke your Will at any time. To revoke your Will, you can
- Destroy or damage it with the intent to revoke it.
- Direct someone else to destroy it in your presence.
- Create a new will that revokes the old either explicitly or by changing the terms of the original.
You can also make a new Will that supplements an existing Will without revoking it. For example, if you purchase real property or acquire an interest in a business, you can make a new Will directing the disposition of only that specific property. This would not necessarily overwrite or revoke an existing Will.
If you wish to change a Will, you must do so with the same formality as the original will (i.e., you can’t just cross out a provision you no longer want or pencil in additional language). You should consult with an attorney to change or supplement your Will.
Do I Need an Attorney to Write My Will?
Although South Carolina law does not require you to have an attorney write your Will, there are many reasons to do so. Consulting with an estate planning attorney can help you understand your options to protect your assets, minimize your tax burden, and reduce the costs of administering your estate. They will review your entire financial and familial situation with you and help you prepare a comprehensive estate plan that best provides for your beneficiaries.
An estate planning attorney can also help support your family after your passing, providing them with the information and documentation to begin the probate process. Using an estate planning attorney also ensures that your will is drafted and executed to be valid, enforceable, and self-authenticating, which helps reduce challenges or administrative issues after your death.
The attorneys at Indigo Family Law have extensive experience in all aspects of legacy and estate planning. We will help you identify your priorities and create an estate portfolio that meets your present goals and adapts to future changes.
Estate planning is about caring for your family, both now and in the long term. Contact us today to set up a consultation with one of our knowledgeable and compassionate estate planning attorneys.