Estate Planning and Probate Lawyers in Lexington, SC
Do You Need a Probate/Will Lawyer?
Anyone who owns property in Lexington, South Carolina, and surrounding areas and wants to control who receives the property after his or her death should have a will, regardless of the value of the property. Of course, the larger the estate, the greater the necessity for expert estate planning and for a valid, up-to-date will.
- With a will, you decide how your property will be distributed. You may make any disposition of your property that is not inconsistent with the laws or contrary to the policy of the state of South Carolina. Protective provisions of the South Carolina Probate Code grant a spouse left out of a will an election to take a one-third share of the "probate estate" under certain circumstances. A similar provision grants a share to a child who is left out of a parent's will written before the child's birth in some circumstances. If you die without a valid will, your assets will be distributed according to a rigid statutory formula that makes no allowances for your personal wishes. The state statute may direct that your property be distributed differently than you would have distributed it under a will.
- A well-prepared will by an experienced will lawyer may reduce your estate taxes. However, after death, you cannot do much to alter the tax status of an estate. The tax consequences depend, of course, on the individual characteristics of each case and should be discussed with your lawyer. Not all estates are subject to death, estate or inheritance taxes.
- With a will, you can choose the individual(s) and bank or trust company you want to serve as the personal representative (executor) of your estate and to manage and settle your estate according to the law and the terms of your will. If there is no will, a court-appointed administrator serves as personal representative.
- With a will, you can save unnecessary expenses involved in the administration of an estate. Bonds may be required of court appointed administrators, and many times this expense is avoided by simply stating in your will that your personal representative need not give bond. Real estate and other assets can be sold without court proceedings if your will authorizes such sales.
Parents can suggest in their wills the names of those people who they want to be guardians for the person and property of a minor child or an incapacitated adult, although such suggestions are not binding on the court.
In a will, you can establish trusts to lower taxes and to control both the financial management and the ultimate takers of your property.
- You can also make gifts to charity in your will.
What If You Die Without a Will?
If you fail to make a will, South Carolina's inheritance statute will determine who gets your property. The court will appoint an administrator, from persons designated by law, to manage and settle your estate.
Often the cost of administering an estate without a will is greater than if the person had planned the estate with a will. Your property will not go to the state, however, unless you have no known close relatives.
What Are the Requirements?
A will is the legal declaration of a person's disposition of his or her property after death. The laws of each state set forth the formal requirements for a will in that state. In South Carolina:
- You, the maker of the will (called the testator), must be at least 18 years old or be married.
- You must be of sound mind to know your estate, the objects of your natural affection and to whom you wish to leave your estate.
- The will must be in writing.
- Your will must be witnessed by two wit nesses in the special manner provided by law.
It's necessary to follow exactly the technical formalities required for executing a will.
How Long Is a Will Valid?
A will is valid until changed or revoked, as allowed by the law. No will becomes final until the death of the testator. The testator may change or add to the will by drawing a new will or by drawing a "codicil," which is simply an addition or amendment executed with the same formalities as a will. A will's terms cannot be changed by writing something in after the will is signed.
Certain changes in the circumstances of the testator after the signing of a will, such as the testator's marriage or divorce, will revoke all or some portions of the will unless the will states it is made in the contemplation of such an event. Changes in the circumstances of a testator require careful analysis and reconsideration of all provisions of the will and often make a change in the will advisable.
Does Placing All Property in Joint Ownership Substitute?
No. While joint ownership in some cases is a useful legal device, joint ownership is not a substitute for a will. Joint ownership may result in adverse tax consequences, and joint ownership does not provide for the distribution of the property in the event that joint owners die at the same time.
Does a Will Increase Probate Expenses?
No. When a person dies, the probate court must administer the distribution of the deceased’s property. This is true whether the person dies with or without a will. Therefore, the existence of a will does not increase probate expenses. In fact, a will frequently reduces expenses.
If there is real or personal property that would pass by will or descent, the probate court has the jurisdiction to either rule on the will or determine the legal heirs. Thus, even if you do not have a will, your heirs must go to court to administer your estate or to obtain a determination that administration is unnecessary.
If you have moved to South Carolina from another state, it would be wise to have your will reviewed by a South Carolina lawyer. However, a will that was properly signed and valid in another state generally will be recognized as valid in South Carolina.
Be sure that you sign your will in the presence of your lawyer, who knows exactly how and in what order the will should be signed. No matter how perfectly a will is prepared, unless it is properly signed and witnessed in strict compliance with the laws of South Carolina, the will may be entirely void.
There were sweeping changes in both state and federal estate and gift tax laws in 1986 and 1987. The entire South Carolina Probate Code was rewritten, effective July 1, 1987. If your lawyer has not reviewed your present will since the passage of these laws, they should review it to determine what, if any, action should be taken. Your will should be reviewed if you have personal or financial changes, such as the death of a spouse.
Who Should Prepare a Will?
Drafting a will involves making decisions that require the professional judgment of a law firm that comes with years of training, experience and study. A practicing lawyer can help you avoid the innumerable pitfalls and advise you of the course that best suits your individual situation.
Come talk with Cofield Law Firm about your will and estate planning and ensure your family’s financial future.