What is a Will and What Can it Cover?
A last will and testament is a common estate planning tool. For many clients, it serves as the foundation for their estate plan, dealing with critical issues such as who will inherit from the deceased after death. A will can also cover other essential issues.
South Carolina has laws regarding what constitutes a valid will. We do not cover those requirements in depth in this article. Specifically, a will must be in writing, and the testator must have the capacity to create the will. It also must be witnessed and signed properly. Failure to follow these formalities can result in a probate court rejecting the will.
Below, our estate planning lawyer in Aiken, SC identifies the most important things our clients accomplish with a will.
Nominate a Personal Representative
After your death, your estate will likely go through probate. The probate court doesn’t handle this process on their own. Instead, you nominate someone to serve as your executor, also called the estate’s “personal representative.” This person has critical duties, such as:
Gathering all your estate assets and making sure they are safe.
Notifying creditors of your death.
Reviewing any creditor claims and paying the valid ones.
Rejecting invalid creditor claims.
Filing personal tax returns after death.
Filing a wrongful death and/or survival action if you died due to someone else’s negligent or wrongful conduct.
Defending your will if it is challenged by an heir (like a disappointed child).
Spend some time thinking about who will serve as a good personal representative. This person should be reliable, thorough, and detailed. They should be good at communicating with all members of your family. The months after death are stressful, and the personal representative should not add to the stress by creating drama. Ideally, they should also live near you because probate will happen in the county where you die.
Identify Who Will Inherit Your Assets
Most people think this is the main purpose of a will—and they are right. We use wills in estate planning as a vehicle for passing a client’s assets to someone after death. The person receiving the asset is called a beneficiary.
Not every asset you own passes through the probate process. For example:
Life insurance proceeds
Retirement accounts
Payable on death accounts
Property owned as joint tenants with right of survivorship
Trust assets
Still, a will is the major way to pass probated assets. You can leave specific assets to individuals, like leaving your car to your sister or your rare coin collection to your cousin. You could also simply divide the estate between beneficiaries. Some clients draft a will stating that their estate should be divided equally between their children. Other testators use a combination of these options: leaving specific assets to individuals and then dividing the remainder between beneficiaries.
You should also consider the possibility that a beneficiary will die before you. A contingent beneficiary is someone who inherits if the primary beneficiary predeceases you or is otherwise unable to receive the asset. For example, you might leave a mobile home to your brother, who is also elderly, but name his eldest child as the contingent beneficiary.
South Carolina places few limits on who you can leave assets to. Legally, you are allowed to disinherit your children, and you do not need to give a reason why. However, the law does limit your ability to disinherit your spouse.
Deciding who will inherit is a major decision. Discuss it with an attorney. Remember, we can also use many non-probate methods of transfer, including living trusts, payable-on-death accounts, and inter vivos gifts.
Appointment of Guardians for Minor Children
Our clients with minor children should also name someone to serve as the guardian. You want to think ahead of time about who will make a good guardian and discuss it with them. Nobody should be blindsided that you named them a guardian because they can always decline once you are gone.
What a Will Can’t Cover
A last will and testament is an excellent foundation for any estate plan. But it can’t do everything. You might need to use other estate planning tools to accomplish the following:
Provide for a pet
Animals cannot inherit from you. Also, a pet is considered personal property, no different from your living room sofa. If you want to provide for your pet—including naming someone to take care of it—then you should use a trust.
Reap tax savings
Large estates may be subject to an estate tax, which can take a big bite out of your legacy. You can try to minimize taxes by using certain irrevocable trusts. Work closely with an attorney.
Provide for a disabled adult
Many disabled adults receive government assistance, but these programs are means-tested. If you leave money or assets to a disabled adult, they might be disqualified from receiving benefits. Work with our firm to create a trust specifically to provide for someone with disabilities who draws government assistance.
Make provisions for end-of-life care
If you become terminally ill, you might want to avoid artificial respiration, a feeding tube, and other life support. You can clarify what treatment you want in a living will, which is a different estate planning document.
Plan for incapacity
A will kicks in when you die. But what happens if you slip into a coma or develop advanced dementia? At that point, you cannot care for yourself. Helpfully, we can create certain legal documents (like a power of attorney) to plan for incapacity. A will cannot do that.
Have Questions? Call Surasky Law Firm
Surasky Law Firm has helped hundreds of clients create solid estate plans that provide peace of mind and withstand scrutiny in probate court. We pride ourselves on providing advice to those trying to develop estate plans. There is a lot to go through. Never rely on fill-in-the-blank or computer templates, which are inadequate for such an important job. Instead, call our law firm to schedule a meeting with our seasoned Aiken, SC estate planning lawyer.
