Creating a will is the most basic, fundamental, and essential part of any estate plan — and for good reason. Having a legal plan in place for what happens upon your death is an essential legal provision. While other parts of an estate plan may be dependent on other conditions being met that may or may not occur, such as incapacitation, everyone will someday pass away. Being prepared for the inevitable is the wisest path to take.
While establishing a will is a task for everyone, not everybody in Chester, SC should endeavor to create one on their own. In fact, an estate attorney is the optimum resource for creating and establishing a proper and legally binding will.
For comprehensive estate planning, you want an attorney team with proficiency in a wide range of law, including estate, probate, real estate, and business law. The family team at Mack & Mack Attorneys has been a community leader in these areas for over 85 years. Our attorneys can help guide you through each and every aspect of the estate planning process, counseling you on recommended estate plans and strategies. Let our team walk you through the essential steps of drafting a will.
A will is one of the most basic and foundational parts of any estate plan. This document legally stipulates where your assets will go upon your death, granting you the ability to designate specific beneficiaries as you wish.
The consequences of passing away without a will mean that your loved ones may be negatively impacted and your wishes and desires neglected, as South Carolina’s court system will determine the distribution of your assets according to intestate succession law.
South Carolina has certain mandated requirements that must be present for a will to be valid and legally binding. Without these requirements, your will could be rejected, and your preferences and designations legally invalidated. To ensure your will complies with all South Carolina estate laws and is legally binding, you must:
The will itself must be:
By meeting these requirements, you can ensure that the court will legally uphold all the terms of your will.
In South Carolina, two forms of wills are most commonly used. Those two forms are:
While there are two differing types of wills, they are not mutually exclusive. In fact, it is recommended that every individual set up both a last will and a living will. This is primarily because they serve different purposes — both of which are a necessary part of a healthy estate plan.
While drafting a last will and testament offers some flexibility, there are certain components that will generally comprise a will in most cases. They include:
By including key elements in your will, you can ensure it will be legally upheld according to your wishes. A carefully drafted will can reduce the potential for disputes, streamline the probate process, and ultimately protect your estate.
Creating a will involves deeply personal and sentimental information in addition to the uncomfortable nature of facing the realities of your own mortality. In addition to these aspects, there are a large number of legal procedures and aspects that must be addressed. The process will be much easier if you partner with a qualified and experienced Chester wills attorney.
With both knowledge and insight on complete estate planning, our attorneys can help you navigate the entire process of establishing a will through each of the following processes:
Will modification is an important process of estate planning that should not be overlooked, as it ensures that your current wishes are legally represented in your will. Changes in family structure are one of the more common triggers for requiring will modification, providing a reason to add or remove someone from your will. Changes in family structure could include a/an:
Additionally, changes in the life of or your relationship with the executor would trigger the need for a modification to the will. In addition to beneficiary and executor changes, you may need to modify the will as the result of changes in your:
Ultimately, your will should always include your current wishes and reflect your present circumstances. It is common for individuals to periodically update their will to reflect these changes. Failing to update your will can lead to legal challenges and unintended consequences. It is important to review your will regularly with your attorney, amending it as necessary to avoid unnecessary complications in the probate process.
South Carolina probate is the formal process by which the court supervises the carrying out of a person’s last wishes, resolves outstanding debt liabilities, and distributes assets to the rightful heirs. To do this, the court must first affirm the validity of the last will and testament. The probate process is straightforward — it only involves collecting everything the person owned and then giving it to the rightful heirs. However, executing this process can be quite complicated.
Generally, probate exists to offer protection against eager family members who wish to take what they want from the estate before the estate has been properly validated. The executor of the will is then responsible for completing the following steps:
During probate, the executor will also be responsible for paying estate taxes, communicating with heirs, notifying creditors of the decedent’s passing, paying funeral and cremation or burial costs, submitting the official death certificate, and closing the estate at the proper time. Probate is quite involved, and those who must go through its legal procedures would benefit from receiving help from a qualified probate attorney.
When someone in South Carolina dies without a legally valid will, this is known as passing “intestate.” When this happens, the person’s estate is subsequently subjected to intestate succession laws. The court then completes estate asset itemizing and valuation before distributing the inheritance to the person’s spouse and blood relatives in an established order. Under intestate succession laws, persons who are not related by blood and unmarried partners are not eligible for inheritance.
Distribution of inheritance will follow a set order of succession, passing to the subsequent family member if the previous member is not living or cannot be reached by the court. It follows the decedent’s:
Some property and assets fall outside of the legal purview of probate and will be handled through other means, regardless of if a will was created. They include, but are not limited to:
For those facing probate proceedings, partnering with a probate attorney can help ease the process.
Unfortunately, while probate is, in most cases, a required process, it is also a generally expensive and time-consuming legal process. Many probates can take up to a year or more to complete, depending on the size and complexity of the estate, and can cost upwards of $15,000 or more. Though it will not avoid probate altogether, having a will can certainly streamline the process, helping to cut down on the time and cost of probate.
Though drafting a will poses an immediate expense, it is ultimately cost-effective in the long run, saving the estate thousands of dollars and leaving a larger portion of the inheritance for the beneficiaries.
Contrary to popular belief, wills are not just for the wealthy. Everyone has a personal preference for how they would like to leave this world, whether it is with whom they want to share their assets or how they would like to be interned. Individuals with children should at least set up a plan for guardianship and caretaking in the event that they and the other parent pass.
If you are ready to begin setting up an estate plan, or if you’d like to make legal modifications to an existing estate plan, contact our office to discuss the details with one of our attorneys. The team at Mack & Mack Attorneys can assist you in setting up a legal will that will guarantee your posthumous wishes will be honored.