Which of these myths and misconceptions about last wills do you believe?

Myth: I have a will, so my estate will not go through probate.

Truth: Having a will does not mean your estate avoids probate.

This myth likely persists because of a misunderstanding of what probate is. Probate is simply the process of settling an estate’s debts and transferring ownership of certain assets to the appropriate heirs. To that end, a last will actually helps guide the probate process by directing what should happen to assets that are subject to probate.

Learn more about probate in South Carolina here on our blog.

Myth: Only rich people need a will.

Truth: Wealth is not the only factor to consider when it comes to creating a will.

Distributing sums of money to various heirs is not the only function of a will. In a will you can also name a guardian to take care of your minor children, specify who should receive personal property like family heirlooms, and name a personal representative / executor to be in charge of managing and closing the estate.

Making your wishes clear in a last will can be especially helpful if you have a complex family situation like second or third marriages with stepchildren or strained relationships with would-be heirs. By recording your final wishes in a will, you can help avoid litigation and arguments between beneficiaries after your death and other ramifications of Family Malpractice™.

Myth: Only old people need a will.

Truth: You don’t know when you’ll need a will; death can come at any age.

It can be hard to face your own mortality, but that’s not a good reason to put off getting a will. No matter your age, you should have a will, especially if you have children or other dependents.

Myth: My family knows what my wishes are, so I don’t need a will.

Truth: Your family does not determine what happens to your estate after your death.

If you die without a will, aka intestate, your estate is subject to your state’s intestacy laws. It’s not up to your family members to direct where your assets go, even if they did want to honor your wishes. And in many cases, sadly, they don’t want to honor the decedent’s wishes. A valid will with valid stipulations is the only legally binding way to direct where your assets that are subject to probate will go.

Myth: I don’t need a will because my spouse has power of attorney.

Truth: Your spouse’s powers under a power of attorney cease upon your death.

A power of attorney (POA) becomes invalid upon the death of the principal. So even if you grant your spouse unlimited powers over your estate through a POA during your life, those powers disappear upon your death, and your spouse has no legal authority to direct where your assets go. You can either rely on a valid will to determine what happens to your estate after death or you can rely on your state’s intestacy laws. There is no third option.

Learn more about powers of attorney here on our blog.

Myth: I don’t need a will because my only real asset is my house.

Truth: Even more reason to have a will!

If you die without a will, intestacy laws apply. In South Carolina and many other states, that means half your estate goes to your spouse and half your estate is split among your children. This can create a few different nightmare scenarios for surviving family members, such as the creation of heirs property, or a disagreement between the spouse and kids on what to do with the house. Read more about intestacy in South Carolina and what can go wrong here on our blog.

Myth: If I die without a will, my spouse will get everything, which is what I want anyway.

Truth: Maybe, maybe not. Don’t just assume your spouse will get everything.

This depends on your situation and your state’s intestacy laws. Under intestacy laws in most states, if you have a spouse and no issue (descendants) at death, your entire estate will indeed go to your spouse. But in some states, your parents or siblings could be entitled to a share. And if you do have children or grandchildren, your estate will likely be split in some manner between them and your spouse.

Myth: If I die without a will, the government will get everything.

Truth: Your estate will go to your relatives, and only in the rarest of cases will it go to the state.

Different states have different intestacy laws, but all states pass the estate on to the heirs of the deceased. The estate will go to the government as a last resort only if no heirs, close or distant, are located. But this is rare.

For example, in South Carolina, the estate will go to the surviving spouse or be divided between the surviving spouse and issue (descendants); if none, then to surviving parent(s); if none, then to issue of a parent (i.e., siblings); if none, then to grandparents or issue of grandparents; if none, then to great-grandparents or their issue. If none, only then does the estate pass to the state (see South Carolina Code Section 62-2-105).

So you can see that it would be a rare situation in which a person’s estate would go to the government. In the vast majority of cases, some surviving heir(s) will be located first.

Myth: I am the personal representative/executor for someone’s estate, so I can do what I want.

Truth: Personal representatives/executors have well-defined responsibilities and limited powers.

Personal representatives/executors do not have carte blanche to do whatever they want. Their role is to carry out the wishes of the decedent as stated in the will and settle the estate. In that role, they have a legal duty to execute the terms of the will in accordance with state law and a fiduciary duty to act in the best interest of the estate and its beneficiaries. If they fail to uphold their legal and ethical obligations, they can be held personally responsible.

Read more about the rights, responsibilities, and risks of being a personal representative on our blog.

Myth: I have a trust, so I don’t need a will.

Truth: Even with a trust, you should consider getting a “pour-over will.”

A pour-over will is a specific kind of will that ensures any assets left out of your trust(s) at the time of your death will be transferred into the trust(s). It’s not uncommon for people to create elaborate estate plan to avoid probate and forget to include an asset in the trust, meaning in addition to the expense of the trust, the estate must go through probate anyway. Getting a pour-over will should be part of your estate plan if you are determined to avoid probate.

Myth: I can make small changes to my will on my own.

Truth: Changes to your will must follow legal formalities under state law to be valid.

Changes to a will are valid only if they follow the same legal formalities as the original will, such as being signed in the presence of two disinterested witnesses. This means you can’t just strike out terms and write in new ones, even if the changes you want to make are small. Make changes to your will by adding a valid codicil or drafting a new will entirely.

Two exceptions: 1. You can make changes to a handwritten memorandum if it’s legal in your state and referred to in your original will. 2. You can make changes to a holographic will, which is a type of will entirely written in the testator’s hand without a witness or notary.

Myth: My old will must be destroyed for the new one to be valid.

Truth: A new, valid will automatically renders previous wills invalid.

There’s no legal requirement to destroy an old will to make a new one valid. While some people believe there’s value in keeping old wills, in our practice we make a point to destroy them by shredding whenever possible.

Get Help with Your Will and Estate Plan in South Carolina

Do you need help with a will or trust? Whether you need a simple and straightforward will or a comprehensive estate plan for a large or complex estate, Gem McDowell and his team at the Gem McDowell Law Group can help. Call to schedule a virtual or in-person consultation at the Myrtle Beach or Mt. Pleasant, SC office today at 843-284-1021.