Frequently asked questions
Why do I need a Will?
Wills are testamentary documents which allow you to determine who will receive your property after your death. Dying without a will is known as dying “intestate,” which means that the laws of South Carolina determine who will receive your property, regardless of what you may have wanted during your lifetime. For example, in a situation where a person dies leaving behind a spouse and two children, that spouse will receive only half of the estate while the two children will receive the other half and divide it equally. This process can become far more complicated in the situation of blended families.
Dying intestate can create a lot of heartache and stress for your family and loved ones. Planning in advance can help make the difficult time of your passing easier for those who loved you.
Is my out-of-state will valid in South Carolina?
Any will, which is properly executed in the state where it was written, is valid under South Carolina law. However, due to inconsistencies with the law from state to state, every out-of-state will has the potential to create unnecessary problems. Therefore, it is recommended that any new resident to South Carolina update his or her will to prevent these potential complications.
What is a Living Will?
A living will, also known as a Declaration of a Desire for Natural Death, instructs your physician to withhold or even withdraw life sustaining measures in the event that you are in a terminal condition or permanent unconsciousness.
When you decide to make a Living Will, you will meet with one of our attorneys to go over all of the options available. This document allows you to make specific choices about nutrition and life support in the event you are ever in the position to be unable to communicate your desires to your family or physician. This important estate planning tool is probably best known in the context of the Terri Schiavo case. Without a Living Will, her family was torn for years over how best to proceed without evidence of her wishes.
What is a Health Care Power of Attorney?
A health care power of attorney is a document that names an individual as your “agent” to make health care decisions for you if you are not able to do so. The document not only allows you to instruct your agent on what to do given certain, specific circumstances, but it also allows them to make critical decisions that you may not have anticipated, such as consenting to or withholding surgery.
In the absence of a health care power of attorney, the Adult Health Care Consent Act in South Carolina allows family members to speak for you. The Act, however, sets a priority of who can speak for you. This can lead to unnecessary disputes and disagreements if your family is faced with the terrifying decision of choosing what is in your best medical interests.
What is a General Durable Power of Attorney?
A general durable power of attorney appoints another person, to act as your “agent” in all of your personal matters, including financial, in the event that you are incapacitated, physically or mentally. Your agent will be able to step in if you should have a sudden illness. This can be very important as every day responsibilities, such as paying bills, persist – regardless of illness or incapacity.
Without a general durable power of attorney your family will have to move to be a court-approved conservator. Needless to say, the general durable power of attorney is preferable in many instances because there is no lag time as your family waits on court approval of your conservatorship.
What is a Trust?
There are any different kinds of trusts, but essentially, a trust is a legal document that appoints someone to manage assets for someone else. Trusts can be made during your life time, which is known as an inter vivos trust, or at your death, which is called a testamentary trust. The person making the trust is called the settlor and those who receive the assets are known as the beneficiaries. Trustees, who are appointed by the settlor to manage the trust’s assets, may be individuals, either alone or with others, or banks or corporations. An individual may be a settlor, trustee, and beneficiary to the same trust, but if at any time there is only one beneficiary, the trust fails.
Trusts are different than wills in many respects. For example, with a will, you do not have a say when an individual will be allowed to access the property you have left for them, or direct how you would like for them to use it. On the other hand, a trust allows you to say exactly how and when you would like a beneficiary to receive the inheritance, and for what purpose it should be used.