Probate

Probate (6)

 

                 Clients ask me when they should start estate planning and I always answer that they cannot start too soon. Due to my many years in the military and various deployments to hostile areas, I was taught to always have my plans together in case something happened.  Part of the advice was for my family, but part was for my own peace of mind and the lack of distraction doing a dangerous job.  Having spent many years now handling estates, it never ceases to surprise me to learn of the number of people (much older than me when I deployed) who do not have some kind of planning for the event of their death or incapacity.  Though you may think your net worth, including property, to be modest, there are simple estate plans to care for your family in the event something happens.  This will ensure those loved ones left behind are about to process your estate.  Let me explain.

 

              Three documents every adult should have executed are a Will, Durable Power of Attorney, and Health Care Power of Attorney.  The Will can be simple, and solely name the personal representative (PR) who will administer the estate and the beneficiary or beneficiaries of the estate.  It doesn’t need to get specific, and I usually advise clients to consider less specificity.  The more specific, the more chance the Will becomes outdated in a short time.  Leaving it all to a spouse, or all to children in equal shares is quite acceptable.  You should consider identifying a Memorandum that will be left separately from the will to designate specific sentimental type pieces of property and can be done at a much later point than the Will.  The Will should probably have a provision allowing the PR to sell real property without receiving an order of the Court.  Otherwise, a two-page will can work fine for many people and save conflict and confusion for those left behind. 

 

             Associated with the Will, a Health Care Power of attorney gives peace of mind and can help the family.  This allows another to make end of life decisions in the event you cannot communicate and (to a reasonable degree of medical certainty) will not improve and will eventually succumb.  The person given this authority can make the decision to pull a respirator before the cost eats up all the estate that would go to the family.  It also allows for ending hydration/nutrition (forced feeding) in the same situation. Additionally, executing a Durable Power of Attorney will allow another to handle financial matters even when you are incapacitated and potentially facing end of life.

 

           Along with this planning is the consideration of ensuring as many non-probate transfers of the estate as are possible.  Ensure that bank accounts have “transfer (payment) on death” provisions.  Ensure that other forms of wealth allow for beneficiaries in the event of death.  If possible, consider transferring real estate during life, but keeping a life estate for yourself.  All this will help keep the probated estate minimal, avoiding potential probate taxes and the headaches that can go with probate.

 

           Lastly, it is important to work in to estate planning substantial wealth accumulation.  For example, if one has been involved in a vehicle wreck involving a substantial personal injury settlement or verdict, it is important to plan for the transfer at death in a way that makes the most sense for loved ones.  This can also come with other such substantial accumulations.  Plan for what happens if you are no longer around, and your loved ones will someday understand that bit of unselfishness for others.

 

 

         In South Carolina, a problem can arise in the event of loved ones passing away without their estates being probated for over ten years.  Up until the ten year point, the courts will allow the regular probating of wills or intestacy probate.  After ten years, the only process available to ensure a proper chain of title is with the process of designation of heirs. It doesn’t matter if the person had a will or not, and this process is distinct from the normal probate process.  It can be extremely difficult, particularly if the time goes well beyond the ten years.  It’s best to consider hiring counsel for this process, and this should be done if the estate involved real estate titled in the deceased person’s name.

 

        The process involves multiple steps, and some similar to the regular probate.  The person wishing the petition the court to determine heirs must file the Summons, Petition for Determination of Heirs, filing fee, and, if not already filed, a death certificate all with the Probate Court. The Petition should allege all who the heirs were at time of death by alleged facts, which probate law was in effect at time of the loved one’s death (Note that a copy of statute in effect at the time should be attached). The petition should also include allegations as to why probate administration was not done at the time, but being done now. ·

 

       After the filing of the above documents, the petitioner must then serve pleadings on all interested parties and file proof of service (note: interested parties would include all potential heirs by the law at the time of death). · Respondents/Defendants have 30 days after being served to file their response/answer back to the petitioner. · After the sooner of 30 days having passed, or when the Answers have been filed, a hearing will be set by the court (upon request) 120 days from the initial filing date. Note: If all parties are in agreement to set the hearing earlier, the hearing can be set, keeping in mind that a 20-day notice of the hearing is required. Also note that the hearing cannot be waived even upon agreement.

 

    At the said hearing, the petitioner must present testimony from a witness who testifies he knew the decedent most of his life and can testify to there being no other heirs.  This is normally more of an issue for male decedents who might have had biological children outside the known family.  Following the hearing and the Probate Judge’s determination of heirs, the petitioner or his attorney will prepare an Order for the Probate Judge to sign. Note: If you don’t hire an attorney it is imperative to to record the Order at the Register of Deeds Office if real property was involved.  This requires necessary information about the real property, such as property description, derivation, complete.

 

      In the end, the determination of heirs ensures that titling of property, particularly real property is not tied up indefinitely, hurting everyone in the decedent’s family.  It allows for property to remain with the family or sold with good title. 

 

     It is always recommended to begin Estate Planning as early as possible. For some, the emotion of planning for one’s death can be a challenge to overcome.  In my personal case as an Army Infantry Officer, it was a natural and required part of our “business” of being ready to deploy to war.  The chance of death is ubiquitous, and so certain things had to be put in order to have piece of mind in deploying. One of the most important parts of Estate Planning is in executing a last Will and Testament.  The good thing is that it is something that can and should be kept as simple as possible for multiple reasons.

 

        When clients come to be to provide counsel for their Wills, they sometimes have every individual piece of real and personal property designated to a specific beneficiary. The problem with attempting to much specificity with a Will is that property and personal changes are certain to occur after executing the Will.  For example, property is sold or transferred in the normal course of life.  Each time that happens, it can generate the need for new Will.  A codicil (amendment to the will) is another solution, but this will actually republish the Will and multiple codicils can make the Will confusing and potentially open to attack in court. 

 

         The other natural change in life is with those who are beneficiaries.  A hard fact of life is that relatives, including even children, sometimes die first.  If the Will does not specify “my natural children alive at the time of my death”, then the heirs of a child will split as beneficiaries.  Additionally, relationships can change over time.  Beyond the one third elective share to a spouse (outside of a prenuptial agreement to the contrary, a spouse is legally entitled to at least 1/3 of their spouse’s estate), you are not legally required to devise or bequeath any part of an estate to a child or other relative. A child or other relative can become a “black sheep” over time, and this could generate the need for another Will.

 

         Keeping a Will simple means considering making your spouse the 100% beneficiary, and potentially your children as alternates.  In that event, you would likely consider the spouse acting as a primary personal representative (PR, the administrator of the estate) and one or more children as alternate PR.  Additionally, to ensure certain keepsakes or family heirlooms go to specific individuals, you can reference a “memorandum” you will leave separate from the Will, and what is written on the Memorandum becomes incorporated into the Will when the estate is probated.  On this memo, you can designate the a certain person receives a certain piece of property.  For example, a son receiving a specific rifle. With this provision, you would not need to get a new Will for personal property and can change your mind over the years on those items.

 

         Always have a Will, but keep it simple.  Your loved ones will appreciate it.

 

    

 
        Planning for end of life decision-making is something most want to avoid, and yet critical for the well-being of family.  Intellectually, all know they will face the end of life and associated decisions, yet planning can make it too much of a reality. I hope to explain the importance of some end of life decisions and the way to ensure the courts will recognize and respect the decisions.  I will also argue why these decisions should be put in place now, as well as the care of family involved with the decisions and associated document.
 
        In South Carolina, a Healthcare Power of Attorney (HPOA) is one of the best ways to make enforceable end of life decisions now which can protect families from potential financial ruin (and emotional turmoil).  With the HPOA, a person can give a loved one powers over decision-making in the event the person is in a medical state in which they cannot communicate and (to a reasonable degree of medical certainty) the person will not recover.  This medical situation can be the result of an accident, or some kind of terminal illness in advanced stages.  The key is that the person is being kept alive by artificial life sustainment (respirator, etc.) of forced hydration/nutrition (forced feeding).
 
        The HPOA allows the person giving authority different decisions relevant to the end of life.  First, the decision of whether or not they wish to donate organs after death.  Next, the HPOA offers three choices with artificial life sustaining efforts (generally, this deals with pulling the plug on a respirator):  1.  They can give the choice to the person they have given power of attorney.  2.  They can demand that life sustaining efforts will end.  3.  They can demand that life sustainment will continue indefinitely.  Next, the HPOA offers the same three choices in the event of forced hydration/nutrition (forced feeding).
 
         If clients ask for my thoughts, I generally recommend clients consider the option of giving the decisions for life sustainment and forced feeding to their power of attorney. The person with power of attorney will know all the surrounding factors to make that decision, including discussions with the person who gave power of attorney before losing the ability to communicate.  That aside, this is a personal decision the person must make about the end of their life.  The good of the HPOA is it prevents the person from being kept on life support against what would be their will, and potentially destroying the family's financial security in the process.
 
       The HPOA is something people should consider when in the process of estate planning with documents like wills and Durable Power of Attorney (look to my previous articles about this Power of Attorney).  These documents will display love toward family if and when they must be used.  Not spending the time and effort to create the documents, and putting family in a much worse position in the event they are needed but not available, can be telling. Catastrophic personal injury accidents can occur at any time, so waiting for old age is not wise. Most general practice lawyers or Estate lawyers can draft and execute a HPOA at a relatively low cost. The time is now to get it done.
 
 

Call The Bill Connor Law Firm at: 803 937 9571

   Planning for end of life decision-making is something most want to avoid, and yet critical for the well-being of family.  Intellectually, all know they will face the end of life and associated decisions, yet planning can make it too much of a reality. I hope to explain the importance of some end of life decisions and the way to ensure the courts will recognize and respect the decisions.  I will also argue why these decisions should be put in place now, as well as the care of family involved with the decisions and associated document.
 
        In South Carolina, a Healthcare Power of Attorney (HPOA) is one of the best ways to make enforceable end of life decisions now which can protect families from potential financial ruin (and emotional turmoil).  With the HPOA, a person can give a loved one powers over decision-making in the event the person is in a medical state in which they cannot communicate and (to a reasonable degree of medical certainty) the person will not recover.  This medical situation can be the result of an accident, or some kind of terminal illness in advanced stages.  The key is that the person is being kept alive by artificial life sustainment (respirator, etc.) of forced hydration/nutrition (forced feeding).
 
        The HPOA allows the person giving authority different decisions relevant to the end of life.  First, the decision of whether or not they wish to donate organs after death.  Next, the HPOA offers three choices with artificial life sustaining efforts (generally, this deals with pulling the plug on a respirator):  1.  They can give the choice to the person they have given power of attorney.  2.  They can demand that life sustaining efforts will end.  3.  They can demand that life sustainment will continue indefinitely.  Next, the HPOA offers the same three choices in the event of forced hydration/nutrition (forced feeding).
 
         If clients ask for my thoughts, I generally recommend clients consider option of giving the decisions for life sustainment and forced feeding to their power of attorney. The person with power of attorney will know all the surrounding factors to make that decision, including discussions with the person who gave power of attorney before losing the ability to communicate.  That aside, this is a personal decision the person must make about the end of their life.  The good of the HPOA is it prevents the person from being kept on life support against what would be their will, and potentially destroying the family's financial security in the process.
 
       The HPOA is something people should consider when in the process of estate planning with documents like wills and Durable Power of Attorney (look to my previous articles about this Power of Attorney).  These documents will display love toward family if and when they must be used.  Not spending the time and effort to create the documents, and putting family in a much worse position in the event they are needed but not available, can be telling. Catastrophic personal injury accidents can occur any time, so waiting for old age is not wise. Most general practice lawyers or Estate lawyers can draft and execute a HPOA at a relatively low cost. The time is now to get it done.
 
 

The legal ability to give power of attorney to another can be extremely helpful in many cases, but also dangerous if the wrong person is given that power.  There are nuances to different types and levels of power of attorney, and those nuances help prevent a catastrophic mistake.  Power of attorney can be limited to a specific act or scope of acts, or it can deliver all financial powers.  A health care power of attorney can provide health care powers for the situation in which one is not able to communicate health care decisions.  Let's go over the considerations for each.
 
        First, A general power of attorney allows another person complete power to make all financial and administrative decisions and actions.  For example, someone with general power of attorney can go to a bank and withdraw all money from one's account.  The law allows for powers of attorney to be "durable", and therefore a durable general power of attorney will continue being mental incapacity to death.  This means that whoever has general powers can sign over real estate and clean out bank accounts among other powers.  This is a power that should only be granted to the most trusted individual, and that person should be provided detailed guidance for using that power.  It can be revoked any time, and should be revoked in the event of any question of trust that might arise.
 
        Next, the power of attorney can be limited in scope to a specific action, for example signing a real estate contract and/or deed.  This is a limited power of attorney, and only allows for what was specified by the person giving power of attorney.  This is a wise option to choose in preventing abuse.  The downside is that once the limited action is over, the person can do nothing more without another power attorney.  The power can be limited in scope, allowing for continuing powers within the same area, like handling a certain bank account.  In that event, it can also be durable within that scope. 
 
        A Healthcare power of attorney allows powers related to "pulling the plug" on life support or ending forced feeding when, to a reasonable degree of medical certainty, the person will not survive without the extraordinary life sustainment and will not regain consciousness to make their own decision.  This is different from other powers of attorney, limited or general, and one that also requires a great deal of trust.  The power of attorney give three options:  1.  Allowing the person being given the powers to make the decision about life sustainment.  2.  Ending life sustainment.  3.  Continuing life sustainment.  Most will choose to give power for the other person to make the decision.  I recommend considering that option, as the person will have all the facts to make an informed decision based on the specific circumstances.
 
       When I was deploying to Afghanistan, we advised newly married soldiers to think long and hard before giving general power of attorney.  There were horror stories of those who were "cleaned out" while deployed away, facing bankruptcy with their divorce upon return.  Those kinds of stories abound, and give pause to giving general power to all but the most proven trustworthy individuals.  In the event of a personal injury situation and claim against another party for causing the injury, lawyers may request limited power of attorney for certain actions related to the claims or lawsuits.  I believe it is wise to consider providing that limited power of attorney, particularly if the lawyer is separated by long distance and signing documents may require lengthy mail delays.  Speak to your lawyer about this question.  Always remain wise and cautious about powers of attorney.
 
Bill Connor, 
The Bill Connor Law Firm

The Bill Connor Law Firm

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