CONSIDERATIONS FOR ESTATE PLANNING

 

                 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  The more specific, the more chance the Will becomes outdated in a short time.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.

 

Considerations For Estate Planning

 

 Planning for what happens to one’s property after death can be a tough process but the motivation comes from the security of caring for others.  Without any estate planning, loved ones are forced to make tough decisions about the property of the departed within the constraints of state law, and the lack of direction can cause families to become bitter or separate.  With this being the case, it’s important to think through all aspects of estate planning while still in the mental capacity to do so.  What is most important about this process?

 

       The most obvious important part of estate planning is in executing a last will and testament.  This not only directs where property should go among loved ones, but who is responsible for handling the estate.  Without a will, family members may be in conflict about who should act as the Personal Representative (formerly Executor or Executrix) for the estate.  There may also be conflict when property must be divided by state intestacy (no will) law.  This happens frequently with a person who has a second spouse after raising a family with a first spouse.  The second spouse has priority as personal representative, and the estate must be divided between the living spouse and living children (who may not care for the spouse).  A will relieves these questions and conflicts.

 

       Also part of the process is in having Durable Power of Attorney given to a trusted loved one.  This is for the period before death in which one may not be capable of conducting business affairs.  Along with the Durable Power of Attorney, should be a Health Care Power of Attorney.  This allows end of life decision by a loved one and communication and recovery are no longer reasonably possible. 

 

       Lastly, it’s important to consider setting up non-probate transfers upon death to help minimize the work in probate (and prevent the estate from reaching the point of having to pay substantial Estate taxes).  This can be done through “payment on death” or “transfer on death” accounts, whether checking or savings.  It can also be done with other types of fungible wealth transfers like stocks/bonds/401K/etc or even retirement accounts.  It is important to ask about this option on various accounts and investments.  With house and land (“real property”) one can transfer the Title to a loved one during life, subject to a “life estate” by the person transferring.  That allows one to live in the house/land until death, without the real property going through probate.

 

        It’s really never too early to consider estate planning, as we never know when the Lord will come calling.  Do it now, and take care of your loved ones.  Make this your legacy.


Giving another person power of attorney in Orangeburg South Carolina is sometimes necessary, but should only be done after learning about the different types of power of attorney and the associated legal ramifications. In discussing this subject with clients (or those I am advising), I usually explain the importance of executing a power of attorney in certain circumstances. I also provide the options for powers of attorney, and consequences. This usually comes as I am discussing estate planning, and considerations for both usually run together. Power of attorney is given to another to give that person the ability to make critical decisions and take critical actions on one's behalf, usually due to the inability of the person giving power of attorney.

The law in South Carolina now allows for providing a power of attorney which (POA) will continue beyond the mental incapacity of the person giving POA. This is called a "durable" POA. One is not required to give a durable POA and may decide they don't want the POA to go beyond incapacity. The person giving POA can also decide what powers to give. A "general" POA gives all powers for signing financial (business, real estate, and banking) related documents. However, the POA can be tailored to offer only specific powers. For example, a POA that allows the person receiving the power of attorney to sign certain specific real estate documents. The most wide-ranging POA would be a general durable Power of Attorney, which gives all powers in survives incapacity to the point of death. A limited non-durable POA would be restrictive. The Power of Attorney Document must be signed in front of two witnesses, notarized, and registered in the County Register of Deeds before it will be accepted by businesses as authoritative. That's why it is important to execute a POA with an attorney.

The Bill Connor Law Firm wants you to know, It's important to remember that in giving another a general and durable power of attorney, that person has the power to take all financial related actions as though they were the person who provided power of attorney. Yes, that means the person must be trusted, as they can go to a bank and clear out accounts among other things. Even with a limited POA for certain business transactions, the person can do anything within the scope of the POA and will not be questioned by the respective business. This can be necessary when someone is in a position they cannot conduct business, for example when I was mobilized for over 15 months for a deployment to Afghanistan I had to allow my wife general durable POA. It can also be for when one is in the hospital in a limited state of ability.

Of course, POAs can be revoked, but that requires the same requirements of two witnesses and notary and registration with the Register of Deeds.

A general durable or more limited POA allows for handling financial matters. Another type of power of attorney allows for making health care decisions for another when incapacity prevents the person giving POA from giving his wishes. This is similar to a living will, as it deals with situations in which the person giving POA is being kept alive by either life-sustaining support or forced hydration/nutrition. The Health Care POA also allows for the decision to donate organs after death. This POA giving three options to the person providing POA: 1. Discretion to the POA holder. 2. Directive not to continue life-sustaining support or forced hydration/nutrition. 3. Directed to continue all life sustainment or forced hydration/nutrition. Most giving POA will just give the decision-making to the person receiving POA.

In all cases of giving Power of Attorney in Orangeburg SC, whether general durable, limited, or health care POA, it is critical to have trust in the person receiving Power of Attorney. It is also critical to discuss the POA with the person who will be acting on one's behalf. They will need guidance to act appropriately. This is something to prayerfully consider, and ensure it is done right.

If you are in need a Lawyer in Orangeburg SC Call The Bill Connor Law Firm at 803-937-5571

 

ADMINISTERING AN ESTATE AS PERSONAL REPRESENTATIVE (WITH OR WITHOUT AN ESTATE LAWYER)

Losing a loved one can be one of the most challenging events in life. In addition to the emotional pain of the loss, the person closest to the dearly departed is usually the one who must administer the Estate. With all the grief involved with the loss, the task of inventorying, appraising, safekeeping, and finally distributing the Estate can bring a great deal of trepidation. Personal Representatives, or those charged with Estate administration, are accountable for all the legal requirements involved, and to the beneficiaries of the Estate. Though many in Orangeburg SC will hire an Estate lawyer to handle the legal technicalities, it is still important to know the basic requirements of administration in order to ensure things are done correctly.

Within a few days after the loved one has passed, the person designated by Last Will and Testament as Personal Representative should probate the Will and request appointment as Personal Representative (PR). If there is no Will, the person closest to the dearly departed should file in intestacy and request appointment as PR. In either case, the County Probate Judge) of the residence of the dearly departed) must order the PR appointment. Other interested parties can contest that appointment, though if the PR is designated in the Will it is highly likely the Judge will appoint. In intestacy, the surviving spouse has priority, followed by children (children would have equal rights, and each may be appointed).

After the PR appointment, the next step is for the PR to inform heirs and devisees of the Estate (heirs are those who would take in intestacy, and devisees are those designated as beneficiaries by the Will) and to begin the Inventory and Appraisement of the Estate (which must be completed within 90 days of appointment as PR) and notice must go out to creditors. Creditors have eight months to make a claim on the Estate, or they lose the right to come back. This means the Estate must remain open for eight months from the notice to give time for the creditor period to pass.

Once the creditor period has passed, the Estate Lawyer (or PR without a lawyer) will begin to close the Estate. This is the part that can become a bit complex and must be done correctly to allow for Probate to close the Estate without liability against the PR. There must be a Deed of Distribution executed and registered with the Registry of Deeds for any Real Property of the estate. This allows for a chain of title from the dearly departed to the devisee(s) of the Real Property. The PR must account to the penny for all money and other assets that came in the Estate, and were then redistributed by the PR. The PR must also account for expenses he paid for the Estate, and up to a 5% PR fee (5% of the gross value of the Estate) that the PR can claim for himself. He must sign a proof of delivery that he has mailed the Accounting, Application for closing, Amended Inventory and Appraisement, and a Notice of Right to Hearing to all heirs and devisees of the Estate. That gives them notice they have 30 days to contest the accounting or any other closing document.

At this point, the PR or the PR lawyer takes the Estate closing packet: Application for Settlement, Deed of distribution (if applicable), Accounting, Proof of Delivery, Notice of Right to Hearing, Amended Inventory and Appraisement (normally, there will be modifications to the initial). After 30 days, assuming no request for hearing to contest the closing, the Probate Judge will sign an order closing the estate. If assets have not already been distributed, they are distributed with a Receipt and Release With Waiver. Thus closing out the Estate.

Estate Lawyers in South Carolina will be doing all the above, and they can be paid as an expense of the Estate from Estate funds. In some cases, houses and other real property may be sold during the administration, causing delays. However, it is important that the PR supervise the process and understand they are personally liable and accountable for the Estate. With the basic information, PRs should be able to understand the process and ensure their loved one's wishes are honored.
If you need an Estate Lawyer in Orangeburg South Carolina call The Bill Connor Law Firm Today!

The Bill Connor Law Firm

1408 Russell St

Orangeburg, SC 29115

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PHONE: 803 937 5571

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