What is a Will?
A Last Will and Testament, simply referred to as a “Will”, is a legal document that directs what happens to your property after your death. It directs who receives property and in what amounts. It only becomes effective upon death and can be changed over and over and over again before death. In addition to directing distribution of property, a Will may have other functions. It may be used to name a guardian for minor children or to create a trust and designate a trustee to handle your “estate”. The “estate” is the property left after death. A will may also be used to name a personal representative to handle your property and affairs from the time of death until the estate is settled.
You can also use a Will to leave poetic thoughts and sentiment, “I leave all my love to my sweet Darlene”. It would be rare that anyone would leave a Will just for sentiment, but stranger things have happened.
What Happens If I Don’t Make A Will?
Making a Will is smart and keeps property (and sometimes people) in order after your departure. If you do not make a Will, the state laws have a plan for your property and directs to whom it goes. The state plan could be just fine for you or it could be disastrous. The state plan directs that property be passed to others by Intestate Succession if you do not have a Will. If there is no Will and no proper next of kin can be found, the state government may very well end up with your property through a process called “escheat”.
Do I Need a Lawyer to Write My Will?
My smart answer is “yes”. A probate lawyer has been specially trained not only in how to draft a Will, but how the language used in a Will affects your property and your heirs, and how other laws may interact with your situation and affect the disposition of property. Why not use a lawyer? A simple Will is inexpensive and still one of the best bargains around town. Get your information together and schedule an appointment with a probate lawyer as soon as possible.
What is a Living Will?
A living will is a legal document that a person uses to make his or her wishes known as to life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician's directive. In South Carolina, the document is called a Declaration Of a Desire For A Natural Death. You also have the option of executing a Health Care Power of Attorney. This directs another to either follow your wishes for prolonging life and medical treatment or gives that person discretion to make a decision on your behalf.
A living will should not be confused with a Last Will and Testament. A Last Will and Testament has already been described above. A living trust is a legal tool used for holding and distributing a person's assets to avoid probate.
Here is a checklist of items and information you should have when we meet:
ü Your legal name, address, social security number (birth certificate if available)
ü Name, address, dates of birth, contact information of spouse, all children, parents and siblings
ü Copies of any life insurance policies
ü List of all real estate in which you have an interest, even if its heir property (copy of deed, or tax assessment on property if available)
ü List of creditors of long-term or large debt
ü List of any pending claims by you or against you (lawsuits, liens, settlements, etc.)
ü List of any real property that you have ever transferred
ü List of collectibles, high value or special sentiment items
ü General inventory list of cars, furnishings
ü Property belonging to you and held by someone else
ü Name of any financial institutions where you do business
ü Information regarding Certificates of Deposit, Bonds, Investments, etc
ü Information regarding secret treasure troves (money in the mattress)
ü Name the person that you want to serve as your personal representative
ü Name a contingent (“just in case”) second person to serve as your personal representative in the event the first named person cannot serve
ü Provide a general directive of who should get what (no need to name every item in the house)
ü Provide a “just in case” directive of who should get what, if the person to whom you originally want to leave property to predeceases you or rejects the gift
ü Advise whether you receive Medicare and whether you have outstanding medical bills.