Estate and Wealth Planning
Frequently Asked Questions
Basic Estate Planning Terms
Intestacy or Dying Intestate - when a person dies with no will, no trust, and no plan. The South Carolina state laws take control and determine how the person's property passes to others.
Decedent - the person who has passed
Estate - the sum whole of a person's assets, debts, and other property or interests which they own or control and which must be dealt with or distributed at death
Probate - the process in South Carolina Probate Court by which assets and debts are handled and distributed after death
Personal Representative - the person who is appointed to handle the matters of probate
Incapacitated person - someone who is unable to manage their own affairs due to some impediment
Guardian - (in probate context) is someone who appointed to handle the healthcare decisions of an incapacitated person
Conservator - someone appointed to handle financial decisions of an incapacitated person
Bond - is an 'insurance premium' the Personal Representative needs to pay to ensure trustworthiness and skill to represent the estate
Will - foundation and necessary document - identifies who will be your personal representative, who will receive your assets. Is a bond required?
Healthcare Directives – documents which allow others to act and make decisions on behalf of someone for healthcare purposes
Power of Attorney – typically a document which allows another person (agent) to handle financial matters on someone’s behalf (principal)
Escheatment – when property is not properly disposed of in an estate or plan, goes unclaimed and transferred to the State of South Carolina after a period of time
Grantor – someone who creates and places assets within a trust
Trustee – person who manages the trust and holds title to assets
Beneficiary – recipient of the assets of a trust
Successors - persons or entities, other than creditors, who may be entitled to receive property from a decedent
What is a Trust?
A trust is the only way to keep your assets out of probate and the court system.
A trust is a legal agreement where a Grantor gives assets to a Trustee who holds them for the benefit of another (a Beneficiary).
When assets are properly held within a trust, they may remain private and out of the court process of probate and can be managed most easily by the trustee.
Most airtight asset protection as possible with least cost and most control – even in event of incapacity or death. Inheritance can be protected by bankruptcy, lawsuits, divorce, and other risks and for multiple generations.
What are some Basic Trusts?
Testamentary trust – very basic trust which is created in a will and does not ‘exist’ until after a will is probated. Note: your assets will not avoid probate with these trusts.
Revocable living trust – all three people (grantor, trustee, and beneficiary) are the same person. At death of grantor, part or all of the trust may become irrevocable. A revocable trust can be changed and controlled by the grantee during their lifetime or other period. Does NOT prevent or protect from creditors, estate taxes, or property taxes. However, does help beneficiaries avoid probate (court) and help ensure that the intended property goes to the right people or charities.
Continuing Trust - a trust which survives you after you die. You can use this type of trust to help manage how your beneficiaries receive your assets - over time and in what amounts. You can even create the conditions which your beneficiaries receive their distributions (i.e. cannot be addicted to drugs or alcohol).
Minor's Trust - if assets are passing to a minor child, this trust will help manage those assets for the benefit of the child until they are old enough to receive the assets.
Separate Share Trust - allows parents to create trusts unique features for the unique needs of individual children
How much does probate cost?
Estate Costs in Beaufort County - Estate under $5,000...$ 25.00; Under $20,000...$ 45.00; Under $60,000...$67.50; Under $100,000...$ 95.00; Under $600,000...$95.00 plus $.15% (.0015) of value between $100,000 and $600,000; $600,000 or higher...$95.00 plus .15%(.0015) of value between $100,000 and $600,000, and .25% (.0025) of value over $600,000. Note: In addition to the above fees, a $45.00 fee for publication of Notice to Creditors is also charged.
What about unclaimed property?
Unclaimed property is property held by the State of South Carolina. In the estate planning and probate court context, this is most likely to be property which has "escheated" to South Carolina due to not being properly put into an estate plan.
Check here to learn if you have unclaimed property to which you may be entitled.