Generally, individuals reach out to me to discuss estate planning or probate. It is unusual that somebody seeks a lawyer to talk about both. However, it is important to know that the two fields are unavoidably linked. A will and trust attorney in this state should draft with the South Carolina Probate Code in mind. Likewise, estate planning is a variable in probate administration. You cannot get the full picture of one without the other.

The key to understanding this connection is playing out how estate planning done now is used later in time. This practical view of estate planning is easily overlooked. Folks know, for example, that a will is a good idea. But in real world terms what happens with it? Some highlights in the application of estate planning are the focus of this article.

Going to The Probate Court for Probate Assets

It is not the case that somebody passes on and probate assets simply go to those listed in the will. It generally takes a year or longer of interacting with the probate court and others to make it happen. When conflict arises, this timeline can be pushed back significantly.

Filings in the probate court are the starting point. Probate attorneys frequently are involved. An initial application sets forth some basic information. If there is a will, it gets attached. It tells the court who takes what. Very importantly, it also tells the court who will act as personal representative of the estate. It should also discuss the representative’s powers in that role. The personal representative’s actions go a long way to hopefully avoiding (or potentially causing) disputes. That is because he or she has hands on the property of other takers and is responsible for moving the estate forward efficiently.

Without a will, the court uses probate laws to determine where assets go and who the personal representative should be. Those statutes are based on family relationships.

During Incapacity

How often is it the case that somebody dies instantly? Surely it happens, but probably just as often there is period of time where the person receives care but is unable to do much else. Healthcare can be a big expense. Many people have other bills to pay and business that needs to be tended to during incapacity. How does all this get taken care of? The last will and testament cannot be used at this stage.

With no estate planning one must look again to the probate code. A guardianship and/or conservatorship proceeding is possibly the answer. The problem is that they can take months, usually involve paying lawyers, and court supervision is required.

One tool estate planning lawyers use to help close that gap is a general durable power of attorney. It gives an agent authority to act in a specified scope of transactions. It can be taken to third parties to show ability to conduct business now.

Trusts and Other Estate Planning Techniques

Trusts and other devices are efficiency tools estate planning attorneys often suggest. With proper usage, an authority structure is in place to avoid involving the court in guardianship and conservatorship. Also, assets can be removed from the probate process altogether. There is still the possibility for dispute but odds are minimized with the selection of a reliable trustee.

 

The takeaway is that estate planning is an alternative to the probate code’s one-size fits all approach. There are a number of eventualities that the code addresses. It is good that it does. For some, however, that approach leads to quarrels and wasted time and money compared to estate planning. Know what the code offers and decide how to utilize it while altering the outcome as desirable.

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