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.
