Get Started on the Basic Facts About South Carolina Probate and Trust
Getting started with probate and trust leaves clients with many questions. Our FAQ page allows clients to learn more about the issues in a quick, easy format so they are ready for our team to assist them with their probate and trust planning needs.
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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.