A will directs where you want your property, money and your belongings to go after your death. If you die without a will, the laws of the State of South Carolina determine who gets your estate. A will also names the person that you wish to serve as Personal Representative, the person who will be responsible for handling your estate, filing paperwork with the Probate Court, and distributing your estate according to your wishes. There are formalities that have to be followed when drafting a will in order for your will to be valid. There are also different ways of achieving the results you intend when dividing your estate. An experienced attorney can help you draft your will to achieve the results you desire.
A trust is an instrument for placing assets in the care of a person capable of taking care of those assets for the benefit of someone who may not yet be capable of doing so, for directing how assets are to be handled for multiple persons and potentially multiple generations, and for other estate planning purposes. An attorney can help you decide if a trust is the right instrument for your particular needs.
A power of attorney is an instrument for giving the power to another person to act on your behalf. There are different types of powers of attorney to fit the different needs of the individual, and can be broad or narrow in scope. They can be vital in avoiding court actions in the event you were to become incompetent and unable to handle your own affairs, and therefore are a highly recommended piece of any estate plan.
Two other important pieces of any estate plan are the Living Will and the Healthcare Power of Attorney. The living will expresses your desires in the event that medical professionals determine that life support is the only thing maintaining your survival. It gives you the opportunity to direct that your body not be kept on life support. Whereas a regular power of attorney allows the person you designate to handle basically your financial affairs, a healthcare power of attorney allows you to designate someone to make decisions regarding medication and medical treatment in the event that you are not capable of making those decisions for yourself.
In order to legally pass on the title to a person's assets, an estate must be opened for the deceased in the Probate Court of the County where the deceased resided at the time if his/her death. This must be done within ten years of the decedent's death. Most estates can be opened informally, which means without having a hearing in front of the Probate Judge, but some estates require formal proceedings, including a hearing to determine who should be appointed as the Personal Representative and sometimes to determine if a will should be admitted as the deceased's last will and testament. Probate Courts generally recommend the use of an attorney for formal proceedings. In any probate estate, an attorney can assist the Personal Representative in preparing documents for filing with the Probate Court, meeting probate deadlines, handling creditor claims, advising the Personal Representative, attending any hearings which may become necessary, and ensuring that the Personal Representative follows the laws governing the probate process.
When real estate is included in a probate estate, a deed of distribution is necessary to provide notice in the public records that title to the property has passed from the estate to the persons who inherit the property, and that the Personal Representative has relinquished control of this property. Even in estates where the Personal Representative has handled the probate without the aid of an attorney, it is generally recommended that an attorney be retained to prepare this document.
When the proper power of attorney documents have not been executed, and a person becomes unable to handle their own affairs, it may be necessary to have the Probate Court appoint someone to handle the affairs of the incompetent person. Guardianship actions can be brought in order to make medical decisions for the person, or to decide where the person is going to reside. Conservatorship actions allow a person to be placed over the financial affairs of the incompetent person. Unlike probate, where a simple estate may be administered without the aid of an attorney, Guardianships and Conservatorships generally require the services of an attorney.
If a person has been deceased for over ten years, a probate estate can no longer be opened by law. If that person died with real estate in their name, a deed of distribution cannot be filed to evidence who are the legal owners of the property. In such cases where is necessary to determine the holders of legal title of the property, a petition to determine heirs may be brought. This is an action where the petitioners must prove to the Probate Judge who the legal heirs of the deceased person are, and the Judge will issue an order establishing those heirs. These heirs are essentially proven to be the legal owners of the decedent’s property. Again, unlike probate, where a simple estate may be administered without the aid of an attorney, a petition to determine heirs generally requires the services of an attorney.
Find out exactly what your rights are by contacting The Mike Kelly Law Group for a confidential, no-cost consultation by calling the toll free number listed for any of our offices or by completing our contact form.