Lives change. Personal relationships change. Assets change. And certainly laws change.  Why then is your current estate plan fifteen years old, or even five years old?   To borrow a common quote about education and learning, estate planning is by its nature a process, not an event.  If your estate plan was put into place greater than five years ago, you should think about a review.

As a demonstration of the estate planning as a process mantra, consider the (Click here for more…)

What do you do if you find yourself a widow(er) and come to find out that your spouse did not mention you in his/her Last Will?

To answer the question, you need to first determine whether the Will was executed before your date of marriage or after. If it was executed before your marriage, you are termed an omitted spouse, and pursuant to S.C. Code Section 62-2-301, you are entitled to receive your intestate share in the estate, notwithstanding that the Last Will says otherwise. (Click here to determine what your intestate share would be.)

If you are an omitted spouse, you must file a written claim with the Probate Court and to the personal representative within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. You will not be considered an omitted spouse if, however, the will appears to have intentionally omitted you, or your spouse has otherwise provided for you through other assets, such as life insurance, joint bank accounts, etc.

If you are not an omitted spouse under the law, you have the right to elect to receive a one third share of the probate estate, notwithstanding that the will says otherwise. (S.C. Code 62-2-201). The probate estate is defined to include all assets passing by will plus by intestacy, less funeral and administration expenses, and claims. (S.C. Code 62-2-202).

For elective share purposes, the probate estate will also include assets held in a revocable trust. Seifert v. Southern Nat. Bank of South Carolina, 305 S.C. 353 (1991). This is so because grantors of revocable trusts tend to remain in control of their assets, often serving as the trustee and beneficiary during their lifetimes, with full power to revoke the trust or otherwise direct where the assets will go. Such arrangments are considered illusory (for elective share purposes only) and will not be protected from the surviving spouse’s right of election.

To make a claim for elective share, the surviving spouse, his attorney in fact (or a court in the case of a protected person) must, during the surviving spouse’s lifetime, file a written petition for elective share with the Probate Court and the personal representative, within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires.

Now that we have gone over some of the basics of the omitted spouse and the right of election, tune in next time for a discussion of what some unscrupulous people will do to be able to claim an elective share in an estate, and why sometimes it works.       

While out on the town with some friends the other night, somebody asked me what estate planning was for.  I thought about the question for a moment, quickly racing through what my answer should be, and realized that there are many different ways to answer that question, because the goals to be accomplished by estate planning can be varied, depending on the individual situation.

My answer was three fold.  First, estate planning allows for the orderly transfer of assets to your heirs after your lifetime. Second, estate planning allows you to protect your heirs from the potentially detrimental effects that an inheritance can have. Thirdly, estate planning can be utilized to protect assets. 

The estate planning task can also vary based on the stage of life you find yourself at. If you are at a younger stage of your life, estate planning can address issues such as guardianship for your children, and management of your childrens’ finances.  If you are at a later stage of life, estate planning can address transmission of retirement assets and protection of assets from medical expenses and, if the estate is large enough, from the estate tax. 

The typical estate plan is made up of several basic documents. They are the Last Will and Testament, the General Durable Power of Attorney for Finances, the Durable Power of Attorney for Health Care, and possibly a testamentary or inter vivos trust.  The documents to be used depend on the individual situation.

I am often asked how much an estate plan costs. My standard reply is that that is a lot like walking into a car dealership and asking the salesperson how much for a car. The answer is it depends on what you need. You can expect a truly barebones simple estate plan to run several hundred dollars, to several thousand dollars for an estate plan utilizing one or more trusts. It can seem like a significant investment, but some attorneys will give you a free consultation to discuss your situation.

First installment of Do-it-Yourself estate planning disasters.  Client X has three children named High, Dry, and Helpful, and no surviving spouse. Helpful is so named because she is so very helpful in caring for mom. 

So helpful in fact, that Helpful moved in with mother a few years before mom’s death to take care of her, oh, and she (Click here for more…)

If you have read any of my previous posts, surely you know that there is no federal estate tax in the year 2010.  Unsurprisingly, this change in the law can have severe repercussions for your estate plan.

Some estate planners are sounding the alarm with regard to estate plans based on credit shelter family trusts and marital deduction trusts.  These trusts are set up in such a way that the credit shelter trust gets funded with assets up to the amount that will not be subject to estate tax due to the previously existing estate tax exemption, while the marital deduction trust gets everything else.  (This set up eliminates all federal estate tax when the first spouse passes away.)

The problem with this set up is that (Click here for more…)

South Carolina is one of about 38 states plus the District of Columbia that allow for trusts to be established for the benefit of animals and pets.  While such trusts had not been recognized under the state common law because there were no human beneficiaries to enforce their terms, the South Carolina Trust Code now makes such trusts valid. (Click here for more…)

You may have heard various reasons why somebody should have their assets in a Revocable Lifetime Trust. (”Revocable Trust”). Some reasons may be valid, others less so. Here is a discussion of some of these reasons, and the implications of each.

1. Asset Management

This is one of the major (Click here for more…)