Wills

A Will is a written document that directs to whom your assets are to be given once you have passed away. A will usually names a Personal Representative to manage the estate, states the authority and obligations of the Personal Representative in the management and distribution of the estate, sometimes gives funeral and/or burial instructions, nominates guardians of minor children and spells out other terms. To be valid in South Carolina, the will must be signed by the person who made it (testator), be dated (but an incorrect date will not invalidate the will) and witnessed by two people. The witnesses and testator must sign in the presence of each other and there are specific requirements as to who may serve as a witness.

A will totally in the handwriting of the testator, signed and dated (a "holographic will") but without witnesses, is valid in many states, but not in South Carolina. A written amendment or addition to a will is called a "codicil" and must be signed, dated, and witnessed in the same way as a will. A codicil must refer to the original will it amends.

Why do I need a will?

A will allows you to do many things for the benefit of your heirs or beneficiaries:

1. Choose who will administer your estate. 2. Establish who will be your heirs in the event those persons differ from those established by law. 2. Choose a testamentary guardian for minor children or disabled persons. 3. Set up trusts to control the method or timing of distributions after death.

Trusts

A Trust is a mechanism by which you establish an entity separate from yourself to hold assets for the benefit of certain persons or entities, with a trustee managing the trust. Trusts are helpful in situations where you want to control the distribution of assets or otherwise preserve and protect assets from being squandered by beneficiaries into the future.

Some individuals utilize a trust in place of a will to avoid probate; though a "testamentary trust" can be created by a will to manage assets given to beneficiaries.

If you think a trust is right for you, schedule a consultation with one of our estate planning attorneys today to discuss your options. Our attorneys can draft and help you fund the trust to provide for the potential for a nearly seamless transition of assets upon death.

Power of Attorney

A Power of Attorney (POA) is the power to act on someone else’s behalf and to sign legal documents for another person. This power is greatly misunderstood. Several nuances of the POA need to be understood in order to fit it into your estate plan properly.

It is, first of all, the power to do business for another person. It is not the power over anyone's body. It is power over belongings. A POA is good only during the person's life. If and when he dies, the POA is extinguished. So, do not think that a POA is a substitute for your will. When the person dies, the POA is invalidated; it has become extinct.

A POA has two dimensions; it has breadth, and it has depth. Let's look at breadth first; if it is a "General" POA, it is as broad as the equator. It covers everything. And, if a general POA does not state a starting point, it becomes operable immediately. So, when you give someone your general power of attorney without stating a starting point, that person can potentially go waste all your assets right now.

Enter the concept of "Springing." A POA can spring from a certain event. For example, someone could give you his power of attorney and say that it comes into being or springs into being only when he embarks on an International Airplane Flight. Or, more often, he could make it spring from this event: "If two board-certified physicians determine that I am incapable of taking care of my affairs and so state in writing, this POA springs into being."

If you want the POA to be less than a general power of attorney, you might decide to limit it and to thus make it a "Limited Power of Attorney." If you were moving to another city and had found a house you wanted to buy, you might give someone your limited power of attorney to buy the house and to sign all relevant papers while you are in the process of moving your family and household goods.

In addition to breadth, a POA has depth. A durable power of attorney is not extinguished when you become disabled - it survives your disability.

Do you need a POA if you have a Trust and have named a Standby Trustee to take over in case of your disability?

Yes. You still need a POA because you may have ownership of items that are not titled in the name of your trust and, hence, not under the power of the Standby Trustee.

In addition to a POA, you need a Medical Power of Attorney (MPOA) that tells what medical procedures you would want done if you were not of a disposing mind. Consult with one of our attorneys to see exactly which documents you need for your situation.

Health Care Power of Attorney

A Health Care Power of Attorney is created by South Carolina law to allow you to appoint a person to make healthcare decisions for you if you are in need of medical care and no longer able to communicate your wishes to medical providers. In the absence of a health care power of attorney, in the event your loved ones disagree as to the scope of care you need or should have, this can result in costly litigation to have a guardian appointed by the Probate Court to handle your medical decisions. The person you would choose to act as your medical power of attorney may or may not be the same person the Court ultimately appoints.

This is why it is so important for clients to name the individuals that they trust to make health care decisions for them in the event such decisions need to be made. To make sure that your loved ones are empowered to act on your behalf if the need arises, call our office and set up an appointment with one of our estate planning attorneys today.

Living Will

A Living Will is a document that communicates an individual's desire for a natural death, meaning that medical providers will not be allowed to administer artificial nutrition or hydration that would only serve to prolong the dying process in the event of a permanent vegitative state or terminal illness expected to result in death in a reasonably short period of time.

A Living Will can be executed as part of your Health Care Power of Attorney, or you may choose to leave these decisions up to your agents named in your HCPOA and not make a Declaration of Desire for Natural Death.