Get Answers to Common Estate Planning Questions in South Carolina
An informed client makes the planning process much more smooth and efficient. Therefore, we encourage our clients to learn all they can, and to help we do our best to thoroughly answer all questions. Before you even begin the legal process, we want you to feel comfortable and have as much information as possible. We’ve assembled answers to many common questions to get you started here.
If you want more information after looking through some of these entries, be sure to also check out our books!
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What Information Do I Need to Leave For my Spouse and Children?
When someone comes to us who has recently lost a spouse or loved one, they often tell us there are several things they wish their spouse or loved one had done. The first is, of course, to have updated their estate plan within the last couple of years. I think we all know this is important. However, the second major area of frustration is not knowing how to handle the deceased person’s bills or how to contact their friends. Below are a few tips to help your own family members avoid those frustrations.
- First, be sure to keep an updated list of passwords handy. This can be accomplished, while still keeping those passwords secure, by making a written list that is regularly updated and kept in your home safe of safe deposit box at the bank, or by keeping a password-protected file on your computer with a full list of those passwords. Also, make sure to include the answers to the security questions that are sometimes required in addition to the password itself. Make sure the person you are trusting with this information knows how to get to it in an emergency. This should include both passwords needed to pay bills and those needed to access your email and social media accounts.
- Along with the list of passwords, it can be really helpful to have a list of all of the monthly bills that need to be paid (mortgage, utilities, car payment(s), etc.), how to pay them and what day of the month they are due. We have had numerous cases where the spouse that handled all of this passed away and left the surviving spouse with no idea of exactly what needed to be paid and when, which can be very frustrating.
- Finally, for those of you running businesses, keep in mind you need to do the same thing for any of these types of tasks that only you handle within your business. Be sure either a family member or trusted employee knows how to handle these tasks in the event you suddenly pass away. This will help ensure that everything continues to run smoothly even in the case of an emergency.
These are just a few things to consider when planning for your family’s future. If you or a loved one have additional concerns or need to begin planning, feel free to call us to set an appointment so we can sit down and discuss your individual concerns.
What are the requirements to get Medicaid for nursing home care in South Carolina?
One of Medicaid’s many programs is its Nursing Home program. The Nursing Home program pays for long term care for persons who reside in skilled or intermediate care facilities. In order to qualify for this program, an applicant needs to meet certain financial and medical criteria. As we’ve discussed in previous blog posts, applicants must receive less that $2,163 in monthly income while having assets valued at no more than $2,000. If you would like to check out that post, you can do so by clicking here.
Aside from the financial qualifications, applicants must also be unable to perform two out of five activities of daily living (ADLs), which include feeding oneself, dressing oneself, bathing oneself, being able to use the bathroom by oneself (incontinence), and freely moving about without help (ambulation).
Medicaid is a program administered jointly by the state and federal government. This means that while the laws are similar, the requirements vary slightly from state to state. However, an applicant must be a U.S. Citizen residing in South Carolina in order to qualify for South Carolina’s Medicaid Program. You will also often be asked to provide a significant number of financial records for the five years leading up to the application. Typically, this means an Applicant will have to provide bank statements, tax returns, account statements from other financial institutions, and any relevant deeds, just to name a few. Lastly, all applicants applying for nursing-home coverage must be over the age of 65.
Applying for Medicaid is a time consuming process that requires strict adherence to Medicaid’s application guidelines. Although not everyone is able to qualify for Medicaid, we’ve been able to help many clients who believed they would not qualify for Medicaid obtain coverage.
To see if you or a loved one might qualify for Medicaid coverage in South Carolina, call us today to set-up a free consultation or fill out the box to your right.
What is Medicaid and can it pay for nursing home care?
Medicaid is a program designed to help people of limited assets and income receive essential health care services. The program uses a combination of Federal and State and state laws to determine who is eligible for Medicaid coverage.
A common question clients have for us is whether or not Medicaid can be used to pay for nursing home care. The short answer to this question is “yes.” However, the process of becoming eligible for Medicaid is much more complicated than a simple “yes or no” answer. Those who apply for Medicaid are subject to strict asset and income limitations. For example, in South Carolina the monthly income limit for 2014 is $2,163 per month and an applicant’s assets cannot exceed $2000 in value. However, Medicaid allows for applicants who exceed the asset limitations to spend money on qualified expenses, exempt certain assets, and set up qualifying income trusts in order to meet the monthly income limits. All of this can be a confusing process, which is why many people end up hiring an attorney to help them navigate this process.
Another question clients often ask is whether the cost of a nursing home is covered by Medicare. Medicare is a Federal health insurance plan that covers citizens 65 and older, but only up to a certain amount for nursing homes. For example, Medicare may pay for up to 100 days in a skilled nursing facility in some situations. But what happens when that coverage has ended and your loved one still needs care? That is when Medicaid often takes over for people who qualify.
If you or a loved one are considering applying for Medicaid to help pay for nursing home coverage and have additional questions about the process or want to try to preserve some of your assets while qualifying, either fill out the form on the right or give us a call at (803) 358-7214.
What is a Healthcare Power of Attorney?
A Healthcare Power of Attorney is a document in which you name someone else to make healthcare decisions for you if you are unable to make them for yourself. In South Carolina, we have a statutory form created by our legislature, and every healthcare power of attorney done in this state since January 1, 2007 should be very similar to that document. If your healthcare power of attorney was done before 2007, you should really consider getting it updated.
This document includes the power to make any medical decisions that may be needed, and also lets you make three very important end-of-life decisions. These include whether you want to be an organ donor, whether you want to be kept alive through means such as ventilators and other machines if you have an incurable or irreversible condition or are in a state of permanent unconsciousness, and whether you would want your life prolonged by tube feeding if it you are in that same condition.
While these are decisions a lot of people do not want to face, making them ahead of time can be a great blessing to your family, and will ensure you have named someone to make these decisions so family members don’t have to argue over who gets to make the decision later.
If you do not have a healthcare power of attorney or think you may need to update your document, give us a call or fill out the form to the right so we can set a time to get started.
Why do I need a Power of Attorney?
A Financial Power of Attorney names a trusted individual to make financial decisions for you if you are no longer able to make those decisions for yourself. This document is needed because, without one, someone will have to be appointed by the Probate Court to make decisions for you if you become incapacitated. A Guardianship allows the Court to appoint someone to make health care and placement decisions for you. A Conservatorship is for managing your assets. A Guardianship is different from a Conservatorship, although they can be filed jointly. Both of these require an action to be filed, and can easily cost thousands of dollars to have put in place. Even spouse would have to go through this legal process if you were to become incapacitated and did not have a Power of Attorney.
We have had to handle Guardianships and Conservatorships several times for spouses of incapacitated people. They are almost always shocked they have to go through this process, and are surprised by how expensive it is. Unfortunately, the law requires that a Guardian ad Litem, who is another attorney, and a Visitor, who must be a registered nurse, social worker or attorney, be appointed as part of the action. The filing fees alone for these actions are several hundred dollars. There are also annual reporting requirements, Court fees, and ongoing Court supervision for as long as the disability lasts. All of this, however, can be completely avoided with a Financial Power of Attorney.
If you really care about your loved ones, take care of this ahead of time. Go see a local attorney and have them draft a good, valid power of attorney so that if something happens, you will know that you (and your family) are taken care of. This costs very little to set up, and will spare your loved ones from a lot of stress and paperwork in Court later.
If you are interested in having a power of attorney set up, give us a call or fill out the easy contact form on the right. Also be sure to request a copy of our new book, Five Reasons a Simple Will Might Not Be Enough, which not only covers the basics of estate planning in South Carolina, but also includes information on Financial and Health Care Powers of Attorney.
Can I avoid probate with a Will?
Lately we have had several people ask us whether a having a Will means they can avoid Probate. The short answer is, probably not.
A Will, as we have discussed before, is actually a set of directions you have written for your probate estate. This includes all of the property you own for which title does not automatically transfer to the person you have named at your death. Examples of property that avoids probate includes property owned with a right of survivorship or assets which have a beneficiary named (such as life insurance policies and bank accounts that have transfer on death designations set up).
Probate can be a serious concern because any property that passes through Probate will be subject to creditors’ claims such as final medical expenses, nursing home costs, or any other final bills of the decedent. This process can also take over a year to complete and often leads to litigation between heirs when there is a disagreement. We will be posting later this month about the best ways to avoid probate, and will be spending next month talking about the ways to best manage an estate if it does have to go through Probate.
In the meantime, if you have an urgent question feel free to give us a call and set up a consultation with one of our attorneys.
What is a Will?
Your Last Will and Testament, or more simply, your Will, is your directions for how your property should be passed after your death. A Will only comes into effect after your death and only controls what is known as “probate” property. This type of property basically includes any assets that would not pass automatically at your death. So, any accounts with beneficiary designations or assets owned “with right of survivorship” are not controlled by your Will.
The Will includes instructions such as who should be appointed to administer your Estate (this person is known as your “Personal Representative” in South Carolina, and is commonly referred to as an Executor in other states), who the property should go to, whether you wish to have the Personal Representative post bond to protect your property, whether you wish to be buried or cremated, and can even help determine who would get custody of your minor children were something to happen to you and your spouse.
If you do not have a Will, the State has prepared a default Will for you called the intestacy statute. You can read more about how that works by clicking here. If you have any questions about your estate plan, or wish to learn more about Wills in South Carolina, please give us a call.
What Happens If You Don’t Have a Will?
If you die without a Will, there are some serious implications, but the most important one is that state law determines how property is distributed. If you have a Will, you can leave your property to any one you choose – your spouse, your children, your church, a charity, etc. If you do not have a Will, South Carolina law determines who will receive your property. This law is known as the “Intestacy Statute.” Most of our clients believe that even without a Will, their assets will simply go to their spouse. That is not true in South Carolina. The Intestacy Statute says that if you die without a Will and are married with children, your assets are divided so that 50% goes to your spouse and 50% to your children. This can cause quite a mess, especially if you have a spouse and children who may not get along. Imagine owning your home with your children or stepchildren. Who is responsible for paying the mortgage? Who pays the taxes? Often, this can lead to costly litigation.
A real example of this issue happened to one of our clients. Mr. and Mrs. Smith got married. They were both in their late 40’s, and they both had children from previous relationships. Mrs. Smith sold her home and moved in with Mr. Smith. About two years after their marriage, Mr. Smith died suddenly from a heart attack. He did not have a Will. The South Carolina Intestacy Statute said that Mrs. Smith received 50% of Mr. Smith’s assets and his children received the other 50%. Mr. Smith only had one child; he had a son who was a criminal and had never worked an honest day in his life. Mr. Smith was estranged from his son and had not spoken to him in years. Mr. Smith’s son was in jail at the time of Mr. Smith’s death, but he still inherited half of his father’s estate, including a half interest in Mr. Smith’s house. When the son was released from jail, he decided to move in to the house that he now partly owned. Mrs. Smith could not tolerate living with the son. She basically gave up her half of the house and moved away. Would Mr. Smith have wanted his son to receive half of his house? Probably not, but Mr. Smith did not plan appropriately. Do not let this happen to your family. A Will is a fairly inexpensive document that can save your family a lot of stress and money after your death.