Many people find themselves baffled and overwhelmed when faced with the topic of “estate planning.” This article should help allay any fears or uncertainties regarding this seemingly ambiguous area of the law.
Estate planning focuses on developing a plan for the management and distribution of your assets upon death; however, a complete estate plan should also account for the possibility that you may become incapacitated during your lifetime.
Without a Last Will and Testament or Inter Vivos Trust, state law dictates how your estate will be divided upon death. In South Carolina, a surviving spouse is only entitled to a portion of a deceased spouse’s estate if the decedent is also survived by children. This applies even if the children are adults. A valid Last Will and Testament or Inter Vivos Trust enables you to draft around the statutory defaults and specify how your property will be divided upon death.
Furthermore, a Last Will and Testament or Inter Vivos Trust allows you to address your specific needs. An effectively drafted Will or Trust should address your current needs but also consider contingencies, such as the need for long-term care planning. These documents should also be tailored to the needs of your beneficiaries, addressing disability, drug or alcohol dependency issues, money management issues, and complicated marriages.
If you become incapacitated and don’t have a Durable Power of Attorney and/or Health Care Power of Attorney in place, your loved ones will likely need to petition the Probate Court to appoint someone as your Guardian and/or Conservator. This process is complicated, expensive and creates a breeding ground for family conflict. Executing a well-drafted Durable Property Power of Attorney and Health Care Power of Attorney can save you and your family significant trouble and headache at a much lower cost than the Guardianship/Conservatorship process.
Careful thought must be given to the nomination of a Personal Representative, Trustee, or Agent Power of Attorney, as these individuals are charged with executing the provisions of your estate planning documents and making sure that you and your loved ones are provided for according to your wishes.
Estate planning can be summarized as nominating decision makers who can manage your property and assets or make medical decisions in the event of incapacity and leaving instructions for the distribution and management of assets in the event of death. While this simple definition does not cover all of the nuances involved in this process, it is a good starting point for anyone who is confused or overwhelmed with the estate planning process. As always, the guidance of a competent estate planning attorney is advisable for most individuals, regardless of the size of their estate.