By Ron Cox
Since I started practicing law twelve years ago, one of the most frequent questions that I have received from acquaintances is whether they need to have a will. The answer is almost always “Yes.” While planning for our eventual passing is not particularly uplifting, it is prudent.
A common misperception is that if you die without a will, your property will go to the state. In South Carolina when a person dies without a will, their property will go to certain family members pursuant to an order of priority established by statute. The property will only go to the state if they have no close relatives. Nevertheless, anyone who owns property and wants to be able to determine where it goes after their death should have a will. If a person who is married with children dies intestate (without a will), their probate estate (property that does not pass pursuant to joint ownership rights, contractual beneficiary designation, etc.) will be divided by statute one half to the surviving spouse and the other half jointly to the surviving children. Are you ready for your children to have half ownership of your cars, jewelry, furniture, etc.? If not, you need a will. Even if the statutory default distribution scheme comports with your wishes, having a will allows you to plan for unexpected contingencies such as the simultaneous death of both spouses or children predeceasing their parents.
Properly drafted wills can help lower the costs associated with the estate administration and in some instances help minimize taxes. A will also permits you to choose the person who will be in charge of administering the estate as the personal representative. In a will you can also suggest who you would like to have custody of your minor children, although the final decision will rest with a court.
Another benefit of a will is the ability to establish a trust. Many people with young children do not want the children to have complete control of their potential inheritance when they might be too young to manage it responsibly. If your teenager suddenly came into a large amount of money when he or she turned 18, they might be tempted to spend the money on a new car or the latest gadgets rather than placing money aside to help pay for education or a down payment on a home. With a trust, you can have a trusted individual or a financial institution in charge of managing the funds. The trustee can use such of the funds as are necessary to provide for the child’s needs and invest the rest. The trust can be established in such a manner that it terminates and pays out the balance to the beneficiary when they reach a specified age such as 25 or 30.
A qualified attorney can assist you with preparing a will less expensively than you might think. They also can make sure that your will is properly executed and witnessed so that the will be valid under applicable law. Even if you have a will, it is a good idea to have an attorney review it and make necessary changes or updates periodically, especially after major life changes such as marriage, divorce, or the birth of a child.
