Want to Make Changes to Your Will in South Carolina? Read This First
We’ve stressed before on this blog why it’s important to have a last will and testament and why you need to keep it up to date. Not doing so can mean that your wishes aren’t carried out, which can lead to drawn out litigation and cause strife between family members and heirs.
It’s also important to make any changes to your will in a way that is valid and legally recognized. Here’s the right way to amend your will – and what happens if you don’t.
How to Correctly Amend Your Will in South Carolina
When you make your last will and testament, South Carolina code states that it must be signed by you (or by someone else in your name, in your presence and at your direction) and two individuals who either witnessed you signing it or your acknowledgement of signing it.
If you want to revoke your will entirely, you can do that either by getting a new one that contradicts the old one or by physically destroying the old one with the intent of revoking it.
However, if you want to make changes to just a section or two, you have to amend it. This requires a codicil, which is a legal document that amends specific parts of the will but leaves the rest as is. A codicil has the same requirements as the will in order for it to be valid: your signature and the signature of two witnesses.
Handwritten Changes Don’t Count
You may wonder whether you can simply strike out a clause in your will and/or make handwritten notes in order to change it. For example, let’s say you want to give your niece $20,000 instead of $10,000, or you want to cut out your nephew entirely.
The answer is no.
A recent case, filed by the South Carolina Court of Appeals in April 2019, centered around this issue. William D. Paradeses died in January 2016, leaving a will dated October 2008. The will was submitted to the probate court and was found to contain handwritten changes. Item IV(2), which would have given Faye Greeson (Eleanor Glisson) $50,000, was struck out, with the handwritten note “Omit #2 W.D. Paradeses” next to it. This led to a disagreement between family members over whether or not the handwritten changes – which were not witnessed – were valid.
The probate court said no, and the Court of Appeals agreed. It stated that this was an attempt at a codicil but didn’t meet the standards of a properly executed codicil, and therefore was invalid. The $50,000 bequest stands.
The lesson here is simple: if you want to make changes to your will, do it by correctly executing a codicil with witnesses, ideally after consulting with an estate planning attorney.
Written Memoranda: An Exception
There is an exception worth noting here. In South Carolina, you can include language in your will that allows for written memoranda. This is a document that’s in addition to the will that doesn’t require the signature of witnesses to be valid. However, it must either be written in the testator’s handwriting or signed by the testator.
The key point is that written memoranda only allows for the dispersal of tangible personal property. For example, you may use it to leave a beloved rocking chair to your grandchild, or a cuckoo clock to your sister. You may not use written memoranda to dispose of assets like stocks, bonds, or real property (real estate).
Experienced Advice for Your Estate Plan
Whether you want to make (valid) changes to your will, update it, or you don’t yet have will at all, you can get the help you need from estate planning attorney Gem McDowell and his associates at the Gem McDowell Law Group in Mount Pleasant, SC. Call today at 843-284-1021 to schedule your free consultation.
What Is A No-Contest Clause and Why Have One in Your Will?
A no-contest clause, also known as an in terrorem clause, is a clause in a will or revocable trust that is intended to prevent parties from contesting the will or trust by penalizing them for doing so. For example, a no-contest clause in a will may state that any party that contests the will is barred from inheriting anything under the will. A no-contest clause is a deterrent to nuisance lawsuits and cash grabs by parties who may want to get more from the estate than the will or trust allows.
A no-contest clause can:
- Discourage years of expensive and time-consuming litigation over an estate
- Prevent bickering and strain between family members and heirs of the estate
- Keep the testator’s private details private (since private details may become public in litigation)
This is not a standard clause in most estate planning documents. It’s typically only included if the testator expects there may be some disagreement over the estate plan after their death. You may want to include one in your will or revocable trust if, for example, you have given some children a larger portion of your estate than your other children, or have disinherited a child altogether, and therefore might expect a challenge to your estate plan.
When a No-Contest Clause is Unenforceable
In general, these clauses are valid and enforceable.
But many jurisdictions have recognized certain circumstances where no-contest clauses are not valid and enforceable: If the party challenging the will or trust has probable cause. If they believe forgery is involved, or they believe the document is the result of undue influence or duress, then the no-contest clause can be held invalid and unenforceable.
A South Carolina Supreme Court case filed in 2006, Russell v Wachovia, looked at this very issue. The opinion cited a North Carolina case in which 6 of 10 children contested their deceased father’s will, citing undue influence and duress. In this case, the deceased was 90 years old when he died, had been in declining health for years, was “worn out and feeble,” and at times failed to recognize his own children. The children challenging the will also noted that two other daughters who stood to inherit a substantial amount were always present at their father’s home when they visited. The court ruled that in this case, the no-contest clause was not enforceable, as the children who contested the will had probable cause to do so. The evidence demonstrated that it was reasonable to believe their father’s estate plan may have been the product of undue influence or duress.
That was very different from the case at hand in Russell v Wachovia, in which two children filed actions to set aside their father’s will and trusts. The South Carolina Supreme Court ultimately found that the no-contest clauses were enforceable. The only evidence to support probable cause here was “strife and discord” in the family, and the fact that the two children who contested the estate plan weren’t treated as well as they believed their father intended. The Supreme Court did not find this to be probable cause to contest the estate in the first place, thus the no-contest clauses were upheld. The two children who contested the will were therefore not allowed to inherit anything under the will and trust they contested.
Creating a Strong No-Contest Clause
If you do want to add a no-contest clause to your will or revocable trust, there are a few things you can do that may strengthen its validity if your estate plan is ever contested. In Russell v Wachovia, the Supreme Court noted that the testator:
- Was in good physical and mental health when he created his estate plan, still working and taking care of himself
- Told one of his sons and his attorney that he anticipated a potential challenge to his will and trust after his death
- Asked a former law clerk of his (he was a judge) to represent his grandchildren, whom he made beneficiaries, in case of a challenge
- Visited a psychiatrist to create a record of his testamentary capacity, i.e., to certify that he was legally and mentally able to make a valid estate plan
- “And most importantly,” according to the Court, he amended his will and revocable trust to include language that explicitly barred any party contesting the documents from benefiting under them
Taken altogether, these points only helped strengthen the validity of the no-contest clauses, as they demonstrated that his estate plan was not made under duress or undue influence. The Court concluded that “If a no-contest clause cannot be upheld under these facts, such a clause would not ever be enforceable.”
Get Help Creating a Strong and Enforceable Estate Plan
Estate planning can be complex, especially if you have a substantial estate, a large or blended family, or own a business. Having a solid estate plan is the best way to ensure your wishes will be carried out and can help keep peace in the family. For help with your estate planning documents, contact the Gem McDowell Law Group in Mt. Pleasant. Gem McDowell and his associatess are problem solvers who can develop the estate plan you need to protect your assets and your family. Call 843-284-1021 today to schedule your free consultation.
The Ongoing Battle over the James Brown Estate
The Godfather of Soul James Brown was born in Barnwell, South Carolina in 1933 and went on to become one of the greatest figures in music of the 20th century in a career that spanned six decades. He received a Grammy Lifetime Achievement Award, has a star on the Hollywood Walk of Fame, and was one of the first to be inducted in the Rock and Roll Hall of Fame. Brown left an indelible mark on music and was a huge influence on generations of musicians that came after him.
These days, his legacy also includes a very complicated estate. Brown died on Christmas Day in 2006 at the age of 73, leaving behind assets in the millions (the exact value hasn’t been disclosed) and an estate that’s been contested ever since.
The Estate of James Brown
Brown executed a will in 2000 in South Carolina and later that year had an irrevocable trust created, too. His assets were to be divided in part among his six living children. (Brown was married four times and acknowledged nine children as his, three of whom have since died, but DNA testing has shown he fathered more children. They were not named in the will.) Another substantial part of his estate was to go into a charitable and educational trust, the I Feel Good Trust, for the benefit of children in South Carolina and Georgia.
Several lawsuits have been filed by various parties over the years, and no distributions from the estate have occurred, either to Brown’s heirs or to the intended beneficiaries of the educational trust. The New York Times published an article in early 2018 covering much of the history of fighting over Brown’s estate, which you can read here.
One lawsuit of particular interest is the one the South Carolina Court of Appeals published an opinion on in May 2019. That’s because it required the court to interpret the law de novo, or for the first time, while courts usually rely heavily on precedent in their findings.
The Background
The background to this particular lawsuit is this: Several of Brown’s children and grandchildren (referred to as the Respondents) contested the Will and Trust. In 2015, the Respondents and the Fiduciaries of the estate reached a settlement wherein each of the Respondents would receive a payment of $37,500 in return for dismissing their claims to contest the Will and Trust. Importantly, they’d retain all their other rights and the Will and Trust would not be altered by the terms of the settlement.
Before the settlement was confirmed, two of Brown’s children, Terry Brown and Darryl Brown, who had not contested the Will and Trust, opposed the settlement. After a circuit court found the settlement was just and reasonable, Terry Brown appealed.
The Findings
It’s well established in case law that it’s acceptable for the heirs of an estate to make an agreement dividing the assets among themselves in a way that’s different than the will outlines, as long they all agree to it. But the Brown estate was different, since only some of the heirs were part of the settlement, not all of them. Terry argued that under South Carolina law, all the successors must consent to and approve of a settlement, and he didn’t consent to it, so therefore the settlement should not be considered valid.
However, the Court of Appeals looked at the law (specifically, Section 62-3-912) and held that his consent wasn’t necessary. The settlement didn’t seek to alter the amount of assets any successor was entitled to under the Will, and in fact specifically preserved the Estate Plan as is.
The Court also looked at Sections 62-3-1101 and 62-3-1102 and found that his approval wasn’t necessary, either. The settlement was not binding to Terry or to any other party that was not involved in the settlement. It, again, did not impact Terry or anyone else with an interest in the estate. To quote the Court, “He will receive precisely the same thing under the Will and Trust that he would have received had Respondents never challenged the Estate plan.”
Furthermore, the Court notes that it is unable to allow a successor who’s not part of the settlement to veto the settlement when it does not affect nor bind him. “This of course we cannot do, and Appellant’s position would allow a holdout successor to force the Fiduciaries to engage in the very thing [the law] is intended to avoid: dissipating the Estate in wasteful litigation.”
Complex Estate Planning
While the estate of James Brown is particularly complicated, all estate planning requires thoughtfulness, thoroughness, and attention to detail. That’s exactly what estate planning attorney Gem McDowell and his associatess provide when you work with them on your estate plan. Not having an estate plan, or having one that’s outdated (like Brown’s), can create a plethora of problems for your heirs. Contact the Gem McDowell Law Group to schedule your free consultation and take the first step towards peace of mind. Call 843-284-1021 today.
9 Reasons You Need a Will
We all know we “should” have a will. But why, exactly? Here are 9 good reasons to have a will.
1 To Maintain Good Family Relations After You Die
The main reason to have a will is for your family. After you pass, what happens to your assets won’t matter to you, but it will matter a lot to those who survive you. Many families have been torn apart by squabbles over an estate. Family members may spend years in court, and untold money, to get what they think they’re due. Meanwhile, those relationships fall apart. This doesn’t just happen after the death of people with large estates, but those with modest estates, too. A clear, current will can prevent many of these squabbles from happening in the first place and maintain the peace.
In short, you don’t get a will for yourself. You do it for your family.
2 To Ensure Your Assets Go to a Particular Individual
The primary purpose of a will is to determine where your assets will go after your death. If you don’t decide, and die intestate (i.e., without a will), the state will decide for you. In South Carolina, if you die without a will, your assets that are subject to probate will pass to your children, your spouse, your parents, and/or your siblings, depending on your family situation. You may not want your assets to go where the state wants them to go. Having a will lets you decide.
3 To Prevent Your Assets from Going to a Particular Individual
Just as your will allows you to ensure assets are going to the individuals you want them to go to, it also allows you to keep assets from individuals you don’t want to inherit anything through your will.
There may be several reasons for doing this. Perhaps you choose not to leave anything to an individual in your will because they’ll receive other assets directly outside of your will, such as life insurance payouts, pensions, retirement accounts, real property held as joint tenancy with right of survivorship, and assets held in trust of which they are the beneficiary.
Perhaps you and your spouse have mutually agreed to leave all of your property to your children rather than each other, especially if this is not your first marriage and there are children from previous partners. (Read more about estate planning in “Brady Bunch Marriages” here.)
Other times, you may choose to disinherit a child or other dependent because of strained familial relations. This is your choice, and a legally binding document will help ensure your wishes are carried out after your death.
4 To Make One Last Donation
So far, we’ve considered how a will can help you divide assets among surviving family members. But a will allows you to leave assets to organizations, too. If you’ve supported a particular cause, charity, or church during your lifetime, you can use your will to leave one final gift. (And depending on the size of your estate, a qualified donation can help reduce taxes, too.)
5 To Appoint a Guardian of Your Minor Children
If you’re the parent of a minor child, you should have a will in order to name your child’s guardian. This is the person who would take physical custody and care of your child after you die. (This assumes that there’s not another parent who would take custody.) If you don’t decide, then the state will, and it may choose someone you don’t want raising your child.
6 To Choose Your Executor
Similarly, the court will appoint an executor or personal representative to administer your estate after you die if you don’t name one in your will. You want to choose someone competent, trustworthy, and fair to settle your estate. It’s also a smart idea to speak with this person first to get their agreement, and to list alternatives in case your first choice is unavailable or declines the position after you’re gone.
7 To Speed Up the Process
Having a will can shorten the time it takes to settle your estate for the simple fact that it’s clear what should happen to your assets. Dying without a will invites family arguments over who should get what, and these arguments can last years and ruin relationship. (See #1.)
8 To Avoid Probate Altogether
What if all your assets are in trusts, so that when you die you have no assets to your name that are subject to probate? You should still have a will, specifically what’s known as a “pour-over will.” This dictates that any assets that are not in trust at the time of your death are to be distributed to the trust. If you don’t have a pour-over will, the assets still in your name when you die that are subject to probate will go through probate.
Learn more about the probate process here in South Carolina.
9 To Minimize Estate Taxes
Smart estate planning can reduce your estate taxes. However, this is not a big concern for most people. The only people who need to take into account estate taxes when drawing up a will are people with very large estates (worth over $11,180,000, as of 2018, or double that for married couples) and people in states that impose estate tax.
If you’re in this situation, you may want more than a simple will, and should speak with an estate planning attorney about your options.
Draft or Review Your Will with Mt. Pleasant Estate Planning Attorney Gem McDowell
If you don’t have a will, hopefully the nine reasons above convinced you that you need one. Call Gem McDowell at his Mt. Pleasant office to schedule a free consultation so you can get started on your estate plan right away. Gem has over 25 years of experience in estate planning, and he’s helped individuals with estates large and small with the planning they need. Call (843) 284-1021 or use this contact form to get in touch today.
Unintended Consequences: What Happens When You Don’t Do Things Right
Following procedure is important when it comes to the law.
This may go without saying, yet you’d be surprised at what sometimes happens, and what the consequences of failing to follow procedure can be.
This point is well illustrated by a recent case decided by the South Carolina Court of Appeals, Forfeited Land Commission v. Eartha Dean Moody Beard. (PDF here)
Error 1: Heirs Failed to Submit the Estate for Probate
In 2005, Willis Thompson passed away. He left his home in Bamberg County, South Carolina to Coretta McMillan and his two other grandchildren.
But after his death, the estate was never submitted to probate.
As a quick refresher, probate is the process after a person’s death in which outstanding taxes and debts are settled and assets are transferred to heirs. (Learn more about what probate is and whether you should try to avoid probate here on the blog.)
Since Willis’s estate did not go through probate, the deed to his home was never put in his grandchildren’s names, and he remained the owner of record long after his death.
Error 2: A Notice of Levy Was Not Properly Posted
After her grandfather’s death, McMillan paid property taxes on the home in 2005. However, due to the fact that she didn’t alert Bamberg County that Willis had died and never provided an alternative address to receive tax notices, she didn’t receive any delinquent tax notices for the property in 2006.
When the notices were returned undelivered and stamped “Deceased,” Bamberg County then referred the property over to the Delinquent Tax Office to post a notice of levy on the property and put it up for a tax sale.
The Circuit Court and Court of Appeals later found that the tax office did not follow procedure when it came to posting the notice of levy on the residence. The notice is brightly colored and highly visible, yet there was testimony that the notice was never seen posted on the home. Also, the delinquent tax collector for the office testified that there was nothing in the tax office’s file to indicate that there had been a witness to the posting of the notice, as is procedure.
What Happened Next (The Lawsuits)
The facts of this case are convoluted, but in short, the home was sold to the Forfeited Land Commission (“FLC”) (a county commission that exists to bid on property at tax sales not otherwise sold) and then ended up in the hands of Ralph Johnson, who purchased 38 other properties from the FLC at the same time. Meanwhile, McMillan had paid some of the property taxes for certain years and had also gotten a tenant for the house, unaware that it did not belong to her.
With many players in this story, there were many lawsuits and counterclaims, but it’s not relevant to go into detail about them. The one at hand was heard by the South Carolina Court of Appeals in October 2017 after appearing before the Circuit Court in September 2014.
The Courts’ Findings
The Circuit Court found that McMillan had waited too long – more than four years – to challenge the sale to Johnson. The statute of limitations is two years, which the Circuit Court found was triggered by Johnson’s action to evict McMillan’s tenant from the house in January 2010.
The Court of Appeals disagreed. It found that McMillan’s challenge to the sale of the home was not barred by the two-year statute of limitations because the tax sale was void. It was void because the tax office was not in “strict compliance” with statute, as it had failed to provide the required notice of levy. Because the tax sale was void, the two-year statute of limitations never ran.
The decision reversed the finding that McMillan was barred from setting aside Johnson’s tax deed and remands the case back to the Circuit Court to determine if Johnson is entitled to any amount.
Where This Leaves McMillan
McMillan did win this case but the matter isn’t over for her. It’s been four years since the first trial and 13 years since the death of her grandfather, yet she still does not own the home her grandfather intended to give her after his death. This entire situation could have been avoided by following procedure and putting her grandfather’s estate through probate shortly after his death.
For Important Matters, Work with an Experienced Attorney
When it comes to matters of estate planning, procedure is vitally important, and skipping a step or making an inadvertent mistake can be costly in terms of time and money. It’s smart to work with an attorney experienced in estate planning who can guide you through the process and make sure procedure is being followed.
If you’re looking for help with estate planning in South Carolina, contact Gem and his associatess at Gem McDowell Law Group in Mt. Pleasant, SC. Gem and his associatess help individuals and families plan their estates with foresight and intelligence to avoid problems in the future. Call today to schedule an initial consultation at 843-284-1021.
Should Your Estate Go Through Probate? Why or Why Not?
Last time we cleared up confusion around probate in South Carolina and looked at what probate is and isn’t.
If there’s one thing people do know about probate, it’s that they want to avoid it when the time comes. But is that really the best advice for everyone? Let’s look at the common reasons why people work to avoid probate, and why it may not be worth the effort to avoid probate after all.
Avoiding The Cost Of Probate
By avoiding probate, you avoid the associated costs. In South Carolina, the cost of probate as of 2017 is:
$1,845 for the first $1,000,000
$2,500 for every $1,000,000 thereafter
For an estate worth $2 million, for example, the total cost of probate would be $4,345, while an estate worth $10 million would have a fee of $24,345. Many people choose to avoid probate to skip paying these fees.
What to consider: Keep in mind that it can be costly to set up an estate plan that keeps assets out of probate in the first place. For smaller estates, it may not be worth it.
Maintaining Privacy
When a will is filed with the probate court, it becomes a public document. In contrast, the details of an estate handled through a trust do not become public.
What to consider: Most people do not need to worry about this. Public figures facing curiosity and business owners wanting to keep company financial info private may have a valid reason for concern, but for most people this is a non-issue.
Making Disbursements To The Heirs More Quickly
Making sure heirs get their inheritances more quickly is another reason people choose to avoid probate. Theoretically, the trustee of a living trust can begin disbursements to heirs immediately upon death. In practice, trustees will ensure that the estate’s debts and taxes are paid before disbursing money to heirs. Whether this actually means beneficiaries get their money more quickly depends on the situation.
What to consider: Estates passing outside probate are subject to creditors’ claims for three years compared to just eight months given to creditors through the probate process. This increases the chance that a creditor will make a claim after disbursements have been paid out from the trust, which can lead to lawsuits against the trustee and/or beneficiaries. The shortened time creditors have to make a claim is an advantage of going through probate.
Is Your Estate Set Up To Pass Through Probate or Avoid Probate?
Estate planning is complex. Laws change and family situations change, making old estate plans obsolete or imprudent. It’s difficult to know the long-reaching consequences of estate planning unless you speak with an experienced estate planning attorney like Gem McDowell of Gem McDowell Law Group. He don’t just provide wills and trusts, but the insight and advice from years of experience on the real-world consequences of estate plans. Call Gem today at their Mount Pleasant office at (843) 284-1021 or use this contact form to set up a consultation.
Clearing Up Confusion About Probate in South Carolina
Updated 11/27/2022
For some people, “probate” is a dirty word. Much of this attitude comes from not understanding the process, so let’s clear up the confusion.
What Probate Is and What Probate Isn’t
There are some myths out there about probate, so here’s what it’s not: Probate is not a way for the government to take the estate of someone who dies without a will. Probate is not a way to avoid any applicable estate taxes. Probate does not take many years (except in rare cases).
Probate is simply a process, overseen by the court, in which a person’s estate is settled. It’s a way for ownership of assets to be transferred from the decedent to other people and for final taxes and debts to be paid.
For an estate to go through probate, no estate planning is required. A person’s estate can pass through probate whether they died without a will or with one, as long as it has assets that are subject to the process.
For an estate to avoid probate, the deceased must own no assets subject to probate at the time of death. A common way to do this is to put all those assets in a living trust (an inter vivos trust), which stays in someone’s name and control during their lifetime and immediately passes to the named successor trustee upon death. The assets owned by the trust are not subject to probate.
What’s subject to probate and what’s not?
Assets subject to probate in SC include:
- Real estate held as a tenant in common
- Property owned solely in the deceased’s name
- Interest in a partnership, corporation, or LLC
Assets not subject to probate in SC include:
- Real estate held as a joint tenancy with right of surviorship
- Retirement accounts with named beneficiary
- Insurance accounts with named beneficiary
- Pension plan distributions
- Assets held in a trust
- Assets that are payable-on-death or transfer-on-death
Now that we know what probate is and isn’t, let’s look at the process.
The Probate Process in South Carolina
The probate process consists of a series of steps:
1. Deliver the will at death. Someone in possession of the deceased’s will must deliver it within 30 days to the judge of the probate court, or to the personal representative named in the will, who will then deliver it to the judge.
2. Personal representative is appointed. This person is typically named in the will and is officially appointed by the court.
3. Notice to intestate heirs is sent. Heirs can contest if they aren’t named or are treated differently.
4. Inventory and appraisement of the estate. This must be filed within 90 days of the opening of the estate. Professional appraisers may be needed to provide the values at the date of death for assets like homes, art, and jewelry.
5. Final accounting. This involves paying applicable taxes, outstanding debts, and ongoing expenses while settling the estate, such as legal and accounting fees. If there’s not enough money in the estate to pay all debts owed, creditors will be paid in order of priority according to South Carolina code (as described in Section 62-3-805).
6. Disbursements. If there’s money left over after debts and taxes are paid, distributions may finally be made to the heirs according to the will, or, if there is no will, according to the state.
7. Close the estate. The personal representative files a number of documents with the court after the above steps have been completed, and the estate is finally closed when the court issues a Certificate of Discharge.
Probate Fees in South Carolina
An estate going through probate is subject to probate fees as laid out in South Carolina Code Section 8-21-770. Fees are based on the gross value of the decedent’s probate estate and are set/calculated as follows:
| Gross Value of Probate Estate | Fees |
| Less than $5,000 | $25.00 |
| $5,000-$20,000 | $45.00 |
| $20,000.00-$60,000 | $67.50 |
| $60,000.00-$100,000.00 | $95.00 |
| $100,000.00-$600,000.00 | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 |
| $600,000 or higher | $95.00 plus 0.15% of the property valuation between $100,000 and $600,000 plus ¼ of 1% (0.25%) of property valuation above $600,000
= $845 plus ¼ of 1% (0.25%) of property valuation above $600,000 |
Here’s a table with sample probate fees calculated based on the value of the estate:
| Gross Value of Probate Estate | Fees |
| $150,000 | $170.00
$95.00+(0.0015*($150,000-$100,000)) = $95.00+$75.00 = $170.00 |
| $300,000 | $395.00
$95.00+(0.0015*($300,000-$100,000)) = $95.00+$300.00 = $395.00 |
| $500,000 | $695.00
$95.00+(0.0015*($500,000-$100,000)) = $95.00+$600.00 = $695.00 |
| $750,000 | $1,220.00
$845+(0.0025*($750,000-$600,000)) = $845+$375 = $1,220 |
| $1,000,000.00 | $1,845.00
$845+(0.0025*($1,000,000-$600,000)) = $845+$1,000 = $1,845 |
| $3,000,000 | $6,845.00
$845+(0.0025*($3,000,000-$600,000)) = $845+$6,000 = $6,845 |
| $10,000,000 | $24,345.00
$845+(0.0025*($10,000,000-$600,000)) = $845+$23,500 = $24,345 |
How Long Does Probate Take in South Carolina?
How long it takes an estate to go through the probate process depends on a number of things, including:
- Whether the deceased had a valid will or not
- How large and complex the estate is
- Whether the will is contested
- Whether lawsuits are filed
- How efficient the personal representative is
Under good conditions, a relatively simple estate can take approximately a year from open to close. More complex cases will take longer.
(Note that “small estates,” which contain no real property and total less than $25,000 in value, may qualify for a summary administrative procedure, a quicker and cheaper process than the regular probate process. A small estate can be settled in a matter of a few days or weeks.)
Is It a Good Idea to Avoid Probate?
Now that you know more about probate in South Carolina, you may be wondering whether it’s smart to approach estate planning with the intent of avoiding probate altogether. There are many things to consider, so that’s the subject of the next blog.
For help with your estate plan, contact Gem McDowell Law Group in Mount Pleasant. Contact Gem today at (843) 284-1021 to set up a consultation.
Avoid the Pitfalls of Estate Planning in “Brady Bunch Marriages”
“Brady Bunch marriages” – in which spouses bring their kids from prior relationships into the new marriage – pose a number of potential problems when it comes to estate planning. Imagine the following scenarios:
- Husband and wife sign an “I Love You will” which leaves everything to the other spouse upon death. The husband dies first, and all his assets go to his wife. When she dies, all her assets go to her children, as is very common in a simple will. In this case, the husband’s children get none of his estate; they were bypassed entirely.
- Husband promises to “do the right thing” if his wife dies before him and ensure that her children get some of her money, even though he inherits it all. Upon her death, he decides to keep the money himself, giving her children nothing.
- Husband wants to leave a third of his assets to his wife, a third to his children, and a third to his wife’s children. The wife wants to leave all of her assets to her children.
You can see how any one of these scenarios could lead to legal complications. More importantly, situations like these can tear apart formerly loving families and lead to resentment, disillusionment, and anger. How can they be avoided?
Be Deliberate About Your Estate Plan
If your family situation is complicated, you owe it to yourself and your family to have an estate plan that will carry out your wishes when you die. You have many options, but here are three possible choices:
Option 1. You split your assets up in your will and give some to your spouse, the rest to your kids.
Option 2. You and your spouse sign a waiver stating that there will be no claim to the spouse’s assets upon death, nor any right to them. The kids get everything. (See below for more information on this type of waiver.)
Option 3. You put your assets in a trust which your spouse can enjoy limited privileges from during their lifetime, and upon their death, the trust automatically passes to your kids. Note there are many different kinds of trusts, so make sure you’re getting the right kind for your particular situation.
Your assets are yours to distribute as you see fit and you can use wills, trusts, and other tools to make that happen. It’s smart to have an estate planning attorney review your documents regularly so you don’t experience any unintended consequences of bad estate planning.
Spouses Are Automatic Heirs, Unless You Disinherit Them
As a married person in South Carolina, your spouse has a very strong claim on your property in the case of divorce or death. If you die without a will, they get either all or part of your estate. Even if you die with a will that says you don’t want them inheriting any of your assets, the law may say otherwise. The reason is because you cannot disinherit a spouse without their consent.
In South Carolina, you have three ways to disinherit a spouse:
1) Sign a prenuptial agreement
2) Sign a postnuptial agreement
3) Sign a waiver of elective share before or after marriage
Both spouses must sign a waiver of elective share that waives their rights to their spouse’s assets upon death, in whole or in part. However, this waiver does not waive either spouse’s rights to the other’s assets upon divorce, so it’s different from a prenuptial or postnuptial agreement.
To get a waiver of elective share, both spouses must present an accurate picture of their financial status to the other, so the waiver is made with full knowledge of what they are waiving their rights to. In cases where there’s a large discrepancy in amount of money (i.e., one spouse has a lot of money while the other one has very little), it’s wise for both spouses to retain their own lawyers.
Waivers of elective share aren’t particularly common, but they’re worth considering if you are sure you don’t want your spouse inheriting your property upon your death.
Be Explicit in Your Estate Planning
To illustrate how strong the claim a person has on their spouse’s property, consider this example.
A couple decides to get divorced. They file for divorce on January 1st. On September 1st, they have a hearing. On September 25th, the court orders for divorce. Two days later, the husband dies. A few days after that, on October 1st, the judge signs the order for divorce. In this case, even though the couple was in the process of getting divorced, the surviving wife was entitled to a portion of her deceased almost-ex-husband’s estate because on the day he died, they were still technically married.
What if you’re going through a divorce and don’t want your spouse to claim any of your assets should you unexpectedly die? At this point, it’s highly unlikely that you’ll be able to persuade them to sign a prenup, postnup, or waiver of elective share. This is all the more reason not to delay in the divorce proceedings.
Work With An Experienced Estate Planning Attorney
As you can see, estate planning gets complicated once you factor in divorce and add children from previous marriages, children from new marriages, and second (and third and fourth…) spouses. If you’re in this situation, be sure to work with an attorney who has experience with estate planning for blended families, particularly with trusts and elective share.
If you’re in South Carolina, contact estate planning attorney Gem McDowell. He has extensive experience handling estate planning for “Brady Bunch marriages” and is aware of the pitfalls of standard estate planning. He are ready to help you with your complicated estate planning needs at their law office in Mt. Pleasant. Get in touch online or call them today at (843) 284-1021 to schedule your consultation.
The Unintended Consequences of Bad Estate Planning
We always advise people to get estate planning done. If you don’t decide what will happen to your assets upon your death, the state will decide for you.
But sometimes, despite best intentions, an estate plan turns out to cause unforeseen problems. That can happen with bad planning, which is sometimes worse than no planning at all. To illustrate this point, let me tell you a story.
What John & Nancy Planned For
Imagine a man named John in the following situation. John’s wife of 50 years, Nancy, recently died. John and Nancy thought they were being smart when they got estate planning done many years ago – and they were. But it turned out to be bad planning, because it didn’t take into account the fact that laws, people, and family dynamics change over time.
When Nancy and John sat down and talked about what they wanted to happen to her estate when she died, they agreed that she would split the estate up: part of her assets would go to their children, and part would go to her husband.
First you need to know that the government allows an unlimited amount of assets to be left to a spouse tax-free upon death. But the government doesn’t allow you to leave an unlimited amount tax-free to heirs or anybody else. The amount it allows you to leave tax-free is called the “applicable exclusion amount” (formerly called the “unified credit”).
So together Nancy and John decided that they would create a trust, and into that trust would go the full amount of money up to the amount of the applicable exclusion amount, so that her children could get that money and not have to pay taxes on it. The key is that here, she didn’t specify the exact dollar amount to go into the trust, she only said that the trust was to be filled to the point of whatever the current exclusion amount was. Her husband was named as trustee to control the trust during his lifetime, and the full value of the trust would go to the children upon his death.
What was left over from her estate after the trust was “filled up” would go to John. No matter what amount that was, it would be tax-free, because they were married.
So far so good. This kind of estate planning is pretty common, and it’s a smart way to maximize the amount of money you pass on to future generations while reducing the amount of taxes paid to the government. It works out well – but not all time.
When John and Nancy made this plan, it seemed great. The applicable exclusion amount at that time was $600,000, which was the limit for many years. Her estate was worth a total of $2 million, so during the planning phase, they expected that upon her death, $600,000 would go into the trust for the children, of which John would be the trustee. The other $1.4 million would go straight to John, including her half of the house they owned together.
Had she died soon after completing the plan, it would have worked out just the way they intended. But that didn’t happen.
What John & Nancy Got Instead
By the time Nancy died in early 2015, the applicable exclusion amount was not $600,000, but $5.43 million – a much larger amount. The full value of her estate went into the trust for the children, and her husband got nothing free and clear. Not even the house.
This was not what Nancy intended. Because of bad planning, everyone is in a difficult situation. Not only are they dealing with the grief of having lost their mother and wife, the family members now have to deal with the consequences of the faulty estate planning.
As the trustee of a trust that will go to the kids upon his death, the wishes of the father are now at direct odds with the wishes of the children. John, who had no substantial assets of his own and was counting on having some of his wife’s estate when she died (which is exactly what they thought was going to happen), wants money from the trust to live on. The kids want the trust to stay as it is, so they get the full value amount upon John’s death.
John has some limited access to the assets of the trust during his lifetime. That is, he can get his hands on some of the money, but not all of it. He’s entitled to the income from that trust during his lifetime; plus a total of 5% of the value of the trust, or $5,000, whichever is greater; plus expenses related to his health, education, maintenance and support (sometimes abbreviated “HEMS”). He would ask the trustee – in this case, himself – for the money to spend on those things. If they were considered legitimate expenses, he could spend it.
But here’s the rub: whether something counts as a legitimate or not varies from person to person. The IRS determines this, and they base that on someone’s standard of living. Donald Trump’s expenses considered “legitimate” would be substantially different from those of someone who makes $30,000 per year and lives very modestly. And if the trustee (John) disagrees with the future beneficiaries (the kids) over what’s legitimate, then they have to go to court.
So if, for example, John says he needs to use money from the trust to go to France for a year because that’s necessary for his maintenance, and the children disagree, they have to sue him.
And if the father wants to sell the house to move somewhere else, he can’t do it easily because it’s not his free and clear – half of the house is in the trust. If he goes ahead and sells the house anyway, it’s likely that his children will sue him.
As you can see, the situation is very complicated and it’s begging for lawsuits.
You don’t want to be in this situation. But how can you avoid it?
Avoid This Situation With Good Estate Planning
Remember that estate planning should be based on you, your unique situation and your family. It should not be based on whatever pre-made forms an attorney has ready. It must be about you.
1. Know that you have options.
Nancy and John could have decided to do something else instead. For example, Nancy could have left everything to John, and he could have used a “disclaimer” to disclaim anything he didn’t want, and that would go into the trust for the children. That’s just one option, but there are others. The point is, you don’t have to go with the first estate planning option presented to you if it’s not what’s best for you and your family.
2. Ask a lot of questions.
You should ask yourself what you want to happen with your estate when you die, and you may include your family in those discussions if you wish. You should ask questions before choosing an attorney to help you draw up these documents. Has he done these kinds of things before? What examples can she give you of the most complicated estate planning she has done?
Ask “what if” questions about the plans you’ve created.
• What if by the time I die, the applicable exclusion amount is $20 million? What if it’s $0? What will happen to my estate and my family then?
• What if my spouse remarries after my death? Will any of my money go to the new spouse’s children?
• What if one of my children does something I disapprove of after I die, do they still inherit a portion of my estate? Can I include something in my will to prevent that from happening?
An attorney experienced in complex estate planning will be able to answer these questions clearly and will be able to pose additional questions you hadn’t thought of.
3. Review your plan periodically with an attorney.
As you’ve seen, family dynamics can be complicated, especially when children from different marriages are in the picture, and things change. The amount excluded from estate tax is not set in stone, but is determined by Congress and therefore can change in any given year. That alone could have a huge impact on how your current estate plan will play out in the real world.
Again, ask questions.
• With the way things are now, will my original intention be honored?
• Has anything significant happened in my situation (births, deaths, estrangements with family members) to affect my original intentions?
• What changes must I make to ensure that my estate is distributed the way I want?
Learn More About Personalized Estate Planning
So what about your estate plan? Is it customized to you? Would it honor your intentions? If the answer is no, or you’re not sure, contact South Carolina attorney Gem McDowell and his associatess at 843-284-1021 to discuss your own estate planning needs.
What Happens if You Die in South Carolina Without a Will?
Updated February 2024
Less than half of US adults have a will, according to a 2021 Gallup poll – are you one of them? If so, you have committed Family Malpractice™, and you should know what happens to your estate if you die without a will in South Carolina.
If you die intestate – without a will – your estate will be disbursed according to South Carolina Code Title 62 Article 2. In order, your estate goes:
- Entirely to your spouse, if no surviving issue (descendants)
- 50% to your spouse and 50% divided among surviving issue
- Divided among surviving issue, if no surviving spouse
- Entirely to parents, if no surviving spouse or issue
- Divided among issue of the parents (your siblings), if no surviving spouse, issue, or parents
- If none of the above, then divided among grandparents or their issue
- If none of the above, then divided among great-grandparents or their issue
- If there is no taker, the estate passes to the State of South Carolina
Let’s say you’re married and have children. You die intestate. Your surviving spouse gets 50% of your estate, and your children split the remaining 50% equally.
On the surface, this sounds fair, and you might think it’s a good idea. But by allowing the state to decide what happens to your assets, you could be creating problems for your family later. This is especially true in so-called “Brady Bunch marriages,” or blended families, when heirs often clash.
When the spouse and the children don’t agree
Consider this scenario:
A husband and wife have been happily married for several years; it’s a second marriage for both. They both own the house they live in together, which is worth $200,000. When the wife dies, half of her half of the house (that is, 25%) goes to her husband. He now owns 75% of the house. The other half of her half of the house (the other 25%) is split among her three children from her first marriage. Collectively, they own 25% of the house.
The husband can’t afford to make the mortgage payments on the house now that his wife is gone; he has no choice but to sell. If he gets an offer for $200,000 and he receives 75% of that, he can pay off the mortgage. But the children tell him they want $100,000 of the $200,000, or they won’t sign the deed.
What can he do? Without their cooperation, he can’t sell the house. If he doesn’t sell, it will go into foreclosure. If he sues the children to force them to sell, by the time the matter is dealt with in the courts, he will have lost the house to foreclosure anyway.
So he sells the house and takes the loss.
The situation above could have been avoided if his wife had left behind a will.
Make your estate plan today
In the example above, the children didn’t get along with their stepfather. But even relationships that have always been solid can go sour when there’s money at stake. And when you begin to add in multiple children from different marriages, it gets even more complicated.
Dying without a will may burden your family with the stress of having to deal with your estate without knowing what your wishes were, all while coping with a huge personal loss. Fortunately, creating an estate plan isn’t difficult. Call Gem McDowell at (843) 284-1021 to set up an appointment to discuss your estate plan today.
The 5 Essential Estate Planning Documents
When you come to Gem McDowell Law Group to work on your estate plan, we discuss five documents together: a will, a trust, a living will, a healthcare power of attorney, and a durable financial power of attorney. You may not need them all, but we can figure that out together.
Here’s some information on what each document is, what it can and can’t do, and some things you should consider as you go through the estate planning process.
The Will
A will is a document you create to decide what will happen to your estate when you die. In the state of South Carolina, it must be signed in the presence of a witness and a notary to make it legally binding.
There are a few types of wills, but for people with a relatively small estate, a simple will is a good choice. When we draw up a simple will, we tailor it to each client, but we typically include the following sections in every will:
First, the will states that your mortgage, outstanding bills, and funeral costs are to be paid from your estate. Next, all taxes are to be paid. Unless your estate is worth over $5.34 million (as of 2015), and you want to pass it on to someone other than your spouse, you will not need to pay estate tax.
Next, we’ll authorize you to draft a handwritten memorandum. A handwritten memorandum is a useful document because it allows you to supplement your will anytime afterwards with no notary, no witness, and no attorney’s fees. You can use it to leave certain assets – generally collectible assets, such as a stamp collection – to a particular person. You cannot use it to transfer real estate, cash, or stocks and bonds. Once the handwritten memorandum has been authorized in the will, you can create one later as your wishes change and your estate changes (within limits). Simply write your wish in your own handwriting (e.g., “I, John Doe, wish to leave my ancient coin collection to my son Timothy”), and sign and date it.
Then, we talk about what to do with those large assets like real estate, cash, and stocks and bonds. You may want to leave them to your spouse, if he or she survives you, or you may want to pass them on to your heirs, other relatives, friends, or charitable causes, to name a few possibilities. How you choose to distribute your assets is up to you.
Finally, you name the personal representative (aka “executor”) who will administer the will and carry out your wishes. If you have children who are not yet adults, you will name a guardian, the person who will take physical custody of them when you’re gone. And if you create a trust for some or all of your assets, you will need to appoint a trustee.
The Trust
As with wills, there is more than one kind of trust. A common type of trust used in estate planning is called a testamentary trust, and it becomes effective when the last will becomes effective – at death. It is a convenient way to keep assets in trust for a period of time after your death until they are ready to be distributed. Most often in estate planning, it’s used for leaving assets to children, especially if they are not yet adults. Depending on your situation, you may not need a trust at all.
One common way to handle an estate is to leave everything to your spouse. If your spouse has predeceased you, then everything instead goes to the children.
If you have children, you should consider not giving them their inheritance all at once, particularly if they are very young. At Gem McDowell Law Group, we typically suggest giving three “bites of the apple.” That is, they will receive their inheritance in three separate chunks, spaced several years apart. For example, if you are leaving $3 million to your only daughter, you may decide to have her receive $1 million at age 25, $1 million at age 30, and $1 million at age 35. You may also choose to allow access to the trust money outside of the inheritance for four things: health, education, maintenance, and support.
Trusts are the legal documents that make this type of distribution possible.
The trust is overseen by a trustee, whom you name in your will. If your children are not yet adults you will also name a guardian in your will. The guardian (the person with custody of your children) should generally not be the same person as the trustee (the person with access to the money).
Depending on your unique situation, we can discuss other types of trusts you may want as part of your estate plan.
The Living Will
A living will, also called an advance health care directive, gives you the opportunity to make decisions now about your own health care in the future, should you lose the ability to make decisions for yourself. For example, you can decide now, while you’ve still got the power to make decisions, whether you’d want to continue life support if you were in a persistent vegetative state. In South Carolina, the living will also addresses nutrition and hydration.
Living wills become effective only in cases where one of two things is true:
- You are in a permanent state of unconsciousness and death would occur quickly if life support were removed; or
- You have a terminal illness.
From a legal point of view, neither of those situations is a legal standard – it’s a medical one. To make such a determination, South Carolina requires that the attending physician and another, independent physician both examine you and agree on the state of your health.
This matters because family members may argue over what you really intended.
Imagine a scenario where a woman has been in a car crash and is on life support. Her husband wants to take her off life support, which is what she wished for in her living will. The children don’t want to take her off life support, and threaten to sue if he does. Unless two doctors agree on her state and the living will becomes effective, the husband may not be able to carry out his wife’s wishes.
So while a living will is very important, it has some severe limitations. Because of these limitations, you may also want a healthcare power of attorney.
The Health Care Power of Attorney
A health care power of attorney, abbreviated HPOA or sometimes HCPA, can be considered a “backup” to a living will in a sense. If you don’t have a living will, or it can’t be applied (because one of two conditions above hasn’t been certified by two doctors), then your HPOA can be used instead. Both documents should agree with each other, so that one doesn’t say to end life support while the other says to continue, for instance.
While a living will lets you make the decisions for yourself, an HPOA lets someone else make the decisions for you. But as with a living will, you can make your wishes known. You can tell the agent you appoint that you want maximum treatment or not, that you want to donate your organs or not, or that you consent to tube feeding or not. If you feel better leaving those decisions up to your agent, you may also choose to give them the power to decide at the time of treatment.
The health care power of attorney was drafted by the South Carolina Legislature. It is presented in a Q & A format and asks you to consider different scenarios and to make a decision about what you want to happen. At our law office we have you initial each choice so it’s clear that you chose every selection yourself.
The Durable Financial Power of Attorney
With a health care power of attorney, you appoint an agent and give them the power to make healthcare decisions for you according to your wishes. With a durable financial power of attorney, you appoint an agent and give them the power to make financial decisions for you according to your wishes. Depending on your situation, you may or may not want a durable financial POA.
The Peace of Mind
Estate planning documents are some of the most important documents you’ll ever sign. This is not the time to use a one-size-fits-all form. Call Gem McDowell Law Group at (843) 284-1021 to speak with Gem about your estate planning needs. Once you have a solid estate plan in place, you’ll have peace of mind, knowing that your wishes and your family are taken care of.
Should I Use LegalZoom to Create My Will?
Should you trust your estate planning documents to DIY legal sites like LegalZoom?
Short answer: Probably not.
Every person is different. Every family situation is different. And if you have children, you know that every child is different, too. DIY legal sites don’t understand your unique situation. They can’t provide you with personalized counsel based on years of experience working with individuals and families.
Having access to legal information is a wonderful thing, but it’s incorrect to assume that a one-size-fits-all form will adequately address your own wishes and family dynamics.
When can you trust your estate planning to DIY legal sites like LegalZoom?
If you are unmarried, have a small estate with very few or no assets, and have no children, a boilerplate will may be all you need. In that case, go ahead use the service if you feel like it’s a good fit for you.
But when your situation changes, it’s smart to talk to an experienced attorney who can help you achieve your goals, rather than fit you into pre-written forms.
Personalized Estate Planning in the Charleston Area
When that happens, call Gem McDowell Law Group in Mount Pleasant, SC at (843) 284-1021. Gem can walk you through the process of creating a personalized, comprehensive estate plan. Call today to schedule a free consultation.
