Lancaster Estate Planning Attorney

Lancaster Estate Planning Attorney

Lancaster Estate Planning Lawyer

Many people may believe that estate planning does not begin until you are older. Truthfully, though, even younger people can start estate planning if they want to ensure their assets end up in the proper hands after they pass away.

Thinking about what needs to happen when you are gone can bring about feelings of uncertainty, and it isn’t always the most pleasant scenario to think about. However, to set your mind at ease and lessen your anxiety about your family when you are no longer around, it is important to start estate planning earlier instead of later.

What Is Probate Law?

Probate law is the legal process of the court dividing up the deceased person’s assets according to their wishes. Probate is often a long and complex process that can fuel conflict among heirs and send emotions spiraling out of control if the right preparation is not made before the proceedings begin. The process can be simpler if someone creates a last will and testament and assigns an executor to their estate.

Lancaster Estate Planning Attorney

The Probate Process

The probate process involves many steps that an executor, if one has been assigned, is going to have to carry out. If an executor has not been assigned by the deceased, the court assigns one. The steps that must be carried out during the probate process are as follows:

  • Creating an inventory of all the assets owned by the deceased at their time of death.
  • Paying all withstanding taxes that remain after the owner of the estate has passed.
  • Allowing creditors to file claims against the estate. The creditors have eight months to file their claims against the estate. The assets from the estate are then used to pay off these remaining debts. If the assets do not cover the debts, the debts should be paid off according to priority.
  • Taking legal action on any claims that are filed against the estate.
  • Ensuring assets are given to the correct beneficiaries, following the desires of the deceased. Distribution of assets occurs after the eight-month creditor period. The executor must get permission from the probate court before they can start distributing assets.

The size of the estate can determine how long the probate process takes. Large estates may take years to settle if there are various assets to sort and distribute. Hiring an experienced probate attorney can help ensure the process moves smoother and avoids extra, unneeded time and conflict. When hiring a probate attorney, you are adding an extra level of protection to the assets of the deceased and preventing them from falling into the wrong hands.

The Executor of the Estate

The executor of the estate holds the important responsibility of carrying out the wishes of the deceased as much as possible. This role is extremely important and holds many responsibilities that should be handled with care. If an executor is not assigned, typically, the court assigns a person they believe would be most fitting for the position, such as a spouse, sibling, or child of the deceased. Whether the executor was directly named in the will or assigned by the court, the duties remain the same.

Last Will and Testament

Creating a last will and testament is one very important step of estate planning. Without one, the state laws in South Carolina would dictate how your assets are going to be distributed among your heirs. Death without a legal last will and testament is considered an intestate death and will be left in the hands of the court to make decisions on your behalf. This could end up in your assets not going where you want, though, since the court cannot possibly be aware of your wishes after you have passed.

By having a last will and testament, you can help make the probate process easier, but you can also ensure your possessions, assets, and other items end up where you want them to go. This can save time in the probate process and helps to honor your wishes even after you are gone.

Common Misunderstandings About Your Will

Here are some of the most common misunderstandings about a will:

  • It is important to remember when creating a will that it is only validated once you pass away. A last will and testament cannot be utilized in the case that you fall incapacitated due to sickness or illness and are unable to make your own decisions regarding your health or finances. This is decided in another part of your estate plan, which allows you to assign a power of attorney over decisions regarding your health and finances.
  • A last will and testament is not utilized solely for handling your assets. If you are a parent with young children, having a will can ensure the safety of your children if you were to suddenly pass. A will lets you specify a guardian for your children, so you have a say in who takes care of them.
  • Creating a will does not avoid probate, but it can help simplify the process. It’s often thought that the creation of a will prevents an estate from having to go through probate. It does not, but if everything is laid out in a will, then the distribution of assets and the handling of property can go more smoothly.

One way to cover all the steps and to create a will that is legal and can be properly honored in court is by hiring an estate planning attorney. With their help, you can ensure your assets are in good hands if a catastrophe strikes.

Power of Attorney

Another important component of estate planning is declaring a power of attorney. Lancaster, South Carolina recognizes both non-durable and durable power of attorney. By designating a power of attorney, you are signing a legal contract that gives permission to another person to make decisions for you if you are unable to do so. The terms your power of attorney is allowed to act on depend on you and your needs.

Non-Durable Power of Attorney

A non-durable power of attorney is a temporary position. This person is typically given the authority to act for you in a specific matter if you are unable to do so. This can be used for legal authority or financial management. This authority can be ended at any time and terminates if you were to become incapacitated or were to pass away.

Durable Power of Attorney

Unlike a non-durable power of attorney, a durable power of attorney is given much more power to act regarding another individual. A durable power of attorney is typically assigned to handle financial or medical matters if you become incapacitated or incompetent and are unable to make decisions yourself.

If allowed control over your finances, this person would then manage your assets, pay bills, sell property, handle retirement funds, pay taxes, and manage insurance. This power would be granted until you either pass away or recover so that you can make these decisions yourself again.

If you assign a power of attorney to handle your health care, then you are allowing another individual to access your HIPAA records, fill out medical forms, manage decisions regarding assisted living, and make any health care decisions that you are unable to make for yourself.

It is important to remember to frequently update your power of attorney wishes so that they can be properly honored if you need them. Old power of attorney designations are sometimes not honored by banks or other financial institutions.

Establishing a Trust

If you are looking to avoid probate, you might want to consider creating a trust. Unlike a will, a trust ensures your assets go directly to your beneficiaries and not through probate court. This helps to protect your assets from going somewhere or to someone you don’t want them to.

A trust is composed of the trustor, trustee, and beneficiaries. Beneficiaries of a trust can receive assets while the trustor is still alive or after their death. Assets can even be postponed for up to two generations or until certain circumstances are met. For example, a trust could be given to a child when they graduate from high school or turn 18.

The Importance of Hiring Estate Planning Attorneys

Estate planning can begin at any point in your life, and it is better to begin it sooner rather than later to get a head start against any unforeseen circumstances that could occur. The legality behind estate planning can be quite stringent and difficult to understand if you are not aware of all the intricacies of the law. Having an estate planning lawyer work alongside you can help you navigate the complexities of the estate planning process and prevent mistakes or complications from arising after you pass away.

If you are located near or around Lancaster, South Carolina, Mack & Mack Attorneys can assist you in your estate planning journey. Our team has been working with families all across the area since 1960, establishing secure estate plans that can help set you and your family at ease. If you are looking to get started with your estate plan, contact us today.


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