Estate Planning and Probate

The National Council on Aging reports: "People do not anticipate caring for a parent. They state: 'We will cross that bridge when we get to it.' But when adult children suddenly have to cross that bridge, they look frantically for answers and options."

Many of us who are moving into retirement years find that an elder parent or other family member may require significant attention. Seniors encounter difficulties managing their lives, yet insist on maintaining independence and self-sufficiency. To help them maintain maximum independence, yet provide a sense of safety, we must begin an honest and open communication. Keep the senior as involved as possible and learn their needs and desires. You can then be an effective advocate. To assist them in managing for themselves, you must take the time to learn about their health, doctors, medications, spiritual needs, home maintenance, and much more. The time spent in this preparation will reward you handsomely later.

Estate Planning: What is it, and why does anybody need to do it?

The process of planning for the transfer of your property to your loved ones, rather than the process of acquiring it for your own use, is known as estate planning. The goal is to plan ahead to protect the estate for your heirs while assuring that your individual wishes are carried out regarding health care and the distribution of your assets. Estate planning includes:

  • Health care planning such as writing a living will or naming a health care surrogate
  • Provision of a durable power of attorney
  • Tax considerations
  • The considerations of life insurance and/or long-term care insurance needs
  • The preparation of a will or living trust

An estate is the total property, real, monetary and personal, owned by an individual prior to distribution of that property through a trust or will. Estate planning distributes the real, monetary and personal property to an individual's heirs. Without a valid will or trust, the state statutes will determine to whom your estate will be distributed and in what percentages or amounts.

Wills and trusts are common ways in which individuals dispose of their wealth. Trusts, unlike wills, have the benefit of avoiding probate, a lengthy and often costly legal process that oversees the transfer of assets.

A Durable Power of Attorney is an instrument that authorizes designated person (agent or surrogate) to make decisions about financial matters, when you (the principal) is unable or does not want to make those decisions for themselves. The agent acts on your behalf paying bills, managing investments, buying or selling real estate and applying for government benefits such as Medicaid. A Healthcare Power of Attorney determines who can make medical decisions for you, including end of life decisions, if you are unable to make those decisions for yourself. In South Carolina, the laws pertaining to Durable Powers of Attorney and Healthcare Powers of Attorney (Living Wills) are extremely specific, and certain rules must be followed in order for these documents to be deemed valid. Unfortunately, people often don’t know whether or not their documents are valid until their loved ones need to use them. If the documents do not work, it is often too late to do new ones.

Often, people attempt to save money by doing documents online or they ask a non-estate planning attorney to prepare documents for them that the attorney doesn’t regularly prepare as part of their law practice. Poorly drafted wills, powers of attorney and poorly conceived estate plans can cost your family far more in the long run than the few extra dollars it takes to have someone who concentrates in estate planning and elder law to work with you to devise and implement an appropriate estate plan. If the documents don’t work for any reason, the default course of action is to go to court and ask a judge to figure it all out. Going to court is never less expensive, less stressful or less time-consuming than having the documents done properly to begin with.

Handling the Probate and Estate Administration Process

Probate is the process that is designed to see that a deceased person's debts are addressed and assets are passed on appropriately to loved ones. The process usually begins with naming a personal representative who is responsible for the administration of the deceased's property. The probate process can be complex and time consuming-especially during a time of grief and loss. This process usually takes approximately one year-although complicating factors may extend the process.

If you have lost a loved one, you want to spend time with your family. This is a time of emotional adjustment for you and the people you care about. At the Lowcountry Law Office on Aging, Mental Health & Disabilities, LLC, we encourage you to contact us so we can handle the legal end of things while you focus on being with those you love.

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