As lawyers in Charleston, we’ve prepared wills (more formally called a Last Will and Testament) for our clients. Occasionally, some clients prepare their own wills by using online forms or services. Unfortunately, one size doesn’t fit all when it comes to wills and related documents. Also, there are procedures that have to be followed for a will to be valid. Before you consider using a “do-it-yourself” (DYI) kit, we want you to consider some of the things about wills in South Carolina to help you decide for yourself whether that’s a good idea.
Do I need anything besides a will in South Carolina?
Many clients call looking for just a simple will. However, there are other important documents you need to make sure that you and your family are taken care of in the event of serious injury or death. For example, we always present the following additional options to people who request a will:
Healthcare Power of Attorney. This document allows you to pick who will be making decisions for you in the event you have an injury or condition that makes you unable to make these decisions yourself. Sometimes, big decisions need to be made, such as whether to amputate a leg for example. If you have a Healthcare Power of Attorney in place, then your doctors won’t be caught in the middle of your family fighting over medical decisions. You’ve already told your doctors who gets to make the call. Healthcare Powers of Attorney can give as much or as little discretion as your prefer.
Living Will. To put it simply, your Living Will is your way of telling your doctors and loved ones when you want to reject life-sustaining procedures. Two common scenarios people give are when they are in a state of permanent unconsciousness or when they have a terminal condition and will not live longer regardless of the treatment. The Living Will can take the toughest of decisions out of your family’s hands and can even trump the authority of the Healthcare Power of Attorney.
Durable Power of Attorney. This document gives financial decision-making to the person of your choice. The document only goes into effect if you are unable to make decisions on your own. This document must be recorded at the RMC Office to be effective.
If you’re truly planning for the worst, we strongly recommend having the will drawn, as well as the documents listed above. When we are hired to do all of these documents, we do them all at a discounted flat fee. We usually hold the signing in a formal manner here in our office to make sure that all of the formalities are met, although we’ve gone to hospitals or nursing homes if the person is unable to travel. If you truly want peace of mind, why not have a lawyer handle this paperwork so that you know it is correct and will be effective in the event it is ever needed?
What happens if I don’t have a will in South Carolina?
Some folks believe that if you die without a will, South Carolina takes your property. This isn’t true in MOST cases. There is a hierarchy under South Carolina law that decides who gets what. The first levels are described below:
- Your spouse gets it all if you have no kids.
- Your kids get it all in equal shares if you have no spouse.
- If you have both kids and a spouse, your spouse gets half, and your kids split the other half in equal shares.
- If you don’t have a spouse or kids, then it may go to your parents or siblings depending on various things, including who is still living.
Ultimately, the State only takes your property if you don’t have any second cousins or closer relatives. If you wish to leave property in a manner outside of this hierarchy, or if you want to leave property to a friend, charity, or domestic partner, it is necessary to have a will.
One thing to know, which is important for many of our divorce clients, is that even with a will, you can’t cut your spouse completely out of your will. Until you are divorced, even if your will says your spouse gets nothing, your spouse can still make a claim against your estate for one-third of your property unless the proper paperwork is in place that states otherwise.
Why do I need a will?
Wills have other advantages. They allow you to decide who’ll be the personal representative (“PR”) of your estate. Sometimes, you hear people refer to your PR as an “executor” or “administrator.” Wills let you give directions to the PR as to how to give property to minors and at what age the property should be given to the minors. Without a will, any minors get the money when they turn 18. Wills let people decide how to give away specific pieces of property, and certain gifts can be changed later without having to re-do the will. They let you show your wishes as to who should have custody of your kids. If drafted properly, they can also account for kids who are born after the will is signed without having to re-do the whole will. They let you give specifics as to organ donation or burial or cremation arrangements. There are potential other advantages depending on your specific situation.
What are the formalities of a will?
Wills must be witnessed by two (2) people who are not in the will and under certain formalities. The will must be in writing. It must be signed by the person whose will it is (also called a “testator”). The testator must be 18 years old and must be of sound mind (as defined by our law).
Do I need to keep the original will?
Yes! One of the ways to revoke a will in South Carolina is to tear it up. So, without an original, the probate court may find that the original must have been torn up and revoked. It is possible to prove the existence of a will without the original, but it is much tougher, it creates extra expense, and it allows people to challenge the will. Keep the original in fireproof safe or safe deposit box, and make sure your PR or trusted family member knows how to find and is authorized to access it.
Are there any other benefits to hiring a lawyer to draft my will?
In many situations, yes. We have drafted countless wills, and sometimes our experience dealing with other people’s situations will help you make a decision when trying to make decisions. So, please do not take the chance that your will or powers of attorney are ineffective when you need them. Contact the lawyers at Futeral & Nelson to discuss your situation if you need a will.
Attorneys in Charleston, South Carolina
If you need a lawyer in Charleston to help you prepare a will or other estate documents, please call Futeral & Nelson, LLC today for a consultation.