What Is the Difference Between Probate and Estate Planning?

Many people come to their first estate planning consultation with several questions. One question often asked is: What is the difference between probate and estate planning? The easiest way to sum up the difference is that probate is a legal process that happens after a person’s death, and estate planning is proactive legal action taken before death that helps diminish the need for a lengthy probate process in the future.

What Is Probate?

Probate in South Carolina is the formal, court-supervised process by which a deceased person’s estate is dispensed, and their assets are divided. If the decedent has a valid will, the process of probate can be fairly straightforward and efficient. However, if someone dies intestate, which means no valid will or trust exists, a full, formal probate case must be initiated, according to Title 62 of the South Carolina Code of Laws, which sets forth the rules for intestate succession.

All probate cases in York County are heard at the County Probate Court, temporarily located in the Moss Justice Center while the Historical Courthouse undergoes renovation, and presided over by Judge Carolyn E. Woodruff.

A full probate case can take months, even years, to finalize, and can result in stressful conflicts among family members and creditors. A probate case is also a public matter, which means that anyone can access the records of the estate and petition the court for a claim against the decedent’s estate. Probate cases can be costly, time-consuming, and complicate the grieving process for those left behind.

Do You Need to Hire a Probate Lawyer?

Every year in America, around 86% of the population dies without a will. People forgo estate planning for many reasons, but there are almost always legal consequences when someone dies intestate. You have likely had a family member who has died without proper estate planning, and perhaps even experienced the probate process when settling a loved one’s estate, and if so, you know firsthand the emotional toll it takes.

If you are coping with the death of a loved one, you can reduce the stress and difficulty of the probate process considerably when you hire a probate lawyer. A Rock Hill estate planning attorney can handle all filings and help guide you through this challenging time so you can focus on what matters most: healing from your loss.

Estate Planning: Your Defense Against Formal Probate

While the thought of creating an estate plan may feel daunting, it’s crucial to safeguard your assets and plan for your family’s future before you die. Wills, trusts, and other important documents can provide peace of mind and financial security.

If you are a parent with young children, a will is especially important, as it can establish your preferred guardian in the event of your death. Without a will, guardianship becomes a matter for the courts to decide, which no parent wants. Simple wills are economical when drafted by a qualified estate planning attorney, who can advise you on other documents you might consider adding to your estate plan, such as a trust.

Trusts are a valuable tool in your estate planning package, securing your assets and allowing your loved ones to bypass probate entirely. A revocable trust, also known as a living trust, when paired with a pour-over will to protect any assets not addressed by the trust, is one of the strongest defenses against a lengthy, costly probate case.

There are also special needs trusts, which can designate assets for a disabled loved one’s care, and educational trusts, to protect funds for your children and grandchildren’s education. Other important documents, such as living wills and advance directives, can provide clear direction to your chosen representative concerning critical medical decisions, and even inform loved ones of your wishes for funeral arrangements and burial.

Up to 47% of the population is unaware that a proper estate plan can also provide tax protection and shield assets and real estate from Medicaid and other government agencies that may attempt to make a claim against your estate. Many people delay creating an estate plan because they believe they do not have enough assets or that estate planning is something only wealthy people do, but everyone needs an estate plan.

A South Carolina estate planning lawyer can inform you of all of your options and help you create a comprehensive estate plan that addresses all of your family’s needs.

FAQs

Q: How Much Does It Cost to Create an Estate Plan?

A: Estate planning provides preparatory documents to manage a person’s financial situation in advance of their death and is often much more economical than potential clients imagine. Establishing an estate plan is far less costly than a lengthy probate case. Several factors determine the cost of an estate plan, but estate planning is accessible for every budget.

Q: What Are the Disadvantages of Estate Planning?

A: There are truly no disadvantages to estate planning, apart from the time and cost involved with creating your will, trust, or other important documents. An estate plan, when crafted by a qualified estate planning lawyer, can provide peace of mind and security for you and your family, long into the future, and is more economical than you might think.

Q: What Does an Executor Do?

A: The executor of your estate is a named person, or a professional entity, such as a law firm or financial institution, that oversees the dispensation of your estate after your death and handles all filings with the probate court. The executor of your estate should be a responsible person you trust to make sure that your final wishes are carried out the way you would like.

Q: Which Assets Do Not Go Through Probate?

A: Usually, any assets held in a trust are exempt from the probate process. Revocable trusts are one of the most effective methods of protecting assets from formal probate, during which creditors or third-party interference may occur, as probate is a public matter. Trusts are private, efficient, and provide for a simplified transfer of assets following the decedent’s death.

Whether You Need a Probate Lawyer or an Estate Plan, We’re Here to Help

If you are facing a probate case after the death of a loved one, or you are looking to begin the estate planning process, Mack & Mack Attorneys can help. With over 85 years of experience serving York County residents at all stages of life, we can guide you through the probate process or offer trustworthy advice when it’s time for you to craft your own will or trust. Contact us today to schedule your consultation.