Forms of Ownership for Real Property

Dear Prospective Purchaser:

In South Carolina, there are different ways to title property. The decision as to how title should be taken is important because it affects legal rights for various purposes. Specifically, the manner in which you hold title will impact your estate plan. This memorandum provides a brief outline of the alternative ways to hold real property.

I. Tenants in Common

A tenancy in common is a form of ownership where 2 or more persons (“tenants”) own an undivided fractional interest in the property. The fractional interests need not be equal, but each tenant has an equal right to occupy the whole of the property. The interest of each tenant is freely transferable. In South Carolina, there are no rights of survivorship between the tenants unless special language is utilized. At the death of one of the co-tenants, his or her interest passes according to the deceased co-tenant’s will or by intestate succession if there is no will.

Full probate administration is usually required where an individual dies owning property as tenants in common. The probate administration process typically lasts one year. Probate administration can be avoided through use of “living” or revocable trusts.

II. Joint Tenancy With Rights of Survivorship

Joint tenancy with rights of survivorship is a popular form of ownership particularly between husband and wife. The popularity of the joint tenancy is primarily attributable to the right of survivorship, which makes it a simple and effective probate avoidance device. Simply, when a joint tenant dies, the surviving joint tenant or tenants own the entire interest in the property by operation of law. The deceased tenant’s interest is not subject to disposition by will

What are Healthcare and Durable Powers of Attorney in South Carolina?

If you are a resident of South Carolina and have been researching ways to ensure that your wishes are carried out if you become unable to make important decisions, you might have heard of both healthcare and durable powers of attorney. Knowing the differences between these two tools can help protect you and your loved ones should an unexpected medical or financial crisis arise.

Healthcare Powers of Attorney

A healthcare power of attorney allows you to appoint someone to make healthcare decisions for you if you are unable to do so. This person, known as your healthcare agent, can make decisions about not just medical treatments, but also arrangements such as end-of-life planning.

Your healthcare agent is to act according to what they believe you would have wanted, meaning that you should communicate all your wishes to them. Make sure that you choose someone reliable who will be able to make these potentially difficult decisions in accordance with your wishes.

Durable (Financial) Powers of Attorney

A durable power of attorney provides an agent with authority regarding financial and other matters, such as paying bills, filing income tax returns, dealing with IRAs, or managing property. Think of it as an advance plan for management of your finances should you become incapacitated.

Again, it is important to choose someone reliable who will make decisions in line with what you would have wanted. An attorney is a good choice, since they are legally bound to act in your best interests.

Conclusion

Both healthcare and durable powers of attorney can become invaluable if you become unable to make decisions for yourself. Knowing the differences between the two can help you ensure that your wishes are carried out. Make sure to talk to an attorney to ensure that your powers of attorney are legal and valid.

Disclaimer

The information on this website is made available for education purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Fraser & Allen, LLC and that the information provided on this website does not constitute legal advice.

Estate Planning for College Students

As we prepare to send our children off to college, we busy ourselves with making sure all of the essentials are accounted for. We make endless trips to Target and other retailers in search of the necessities. Bedding, towels, laundry basket, three drawer plastic storage – check. Laptop, minifridge and noise canceling headphones – check. Credit card (with limit controls!) and reliable transportation – check. We covered it all, right? In the words of the incomparable Lee Corso, “Not so fast my friend!”

There are four essential estate planning documents every college-bound student should have. They are (1) a simple will, (2) a health care power of attorney, (3) a HIPAA authorization, and (4) a durable power of attorney. While none of us want to consider anything unfortunate happening to our children, ensuring our children have these documents in place – before leaving home – can put you in the best position to care for them in the event something does happen.

Simple Will

All college students should have a simple will in place that, at a minimum, disposes of their personal assets in accordance with their wishes. This relieves family members from the burden of determining how their lost loved one would have wanted their belongings to pass and provides them comfort in knowing their loved one’s final wishes are honored.

Powers of Attorney

One of the most important estate planning documents for your college-age child is a power of attorney. This document can grant one or more people legal authority to act on your child’s behalf in the event they are not able to. By designating someone to act on behalf of your child, you can avoid many potential legal problems, such as accessing financial accounts and making medical decisions. Every college student should execute a health care power of attorney and a financial power of attorney.

Health Care Power of Attorney

A health care power of attorney is especially important for college-age children because it allows them to make decisions regarding their own medical care in the event they are unable to do so. The health care power of attorney should be tailored to meet the needs of a college-age student and should include the ability to make decisions regarding treatment, organ donation, and end-of-life planning.

Most often, college students name a parent as their agent. A backup agent (e.g., a second parent) should also be named in the event the first agent is unable to serve.

Financial Power of Attorney

All college students should name an agent to handle their financial affairs by executing a financial power of attorney. There are two types, a springing power of attorney and a durable power of attorney. A springing power of attorney becomes effective (i.e., springs into action) upon the incapacity of an individual. This often requires parents to bring an action in the probate court to declare their child incompetent.

To avoid this unnecessary requirement, we advise clients to execute a durable power of attorney instead. A durable power of attorney is effective immediately, continues in the event a child is rendered incapable of handling his or her financial affairs, and it does not require an adjudication of incapacity. Your child should name a primary and secondary agent to serve in this role.

HIPAA Authorization

A HIPAA Authorization goes hand in hand with a health care power of attorney. This document allows you to receive medical information about your child, which you may need to make informed decisions under a health care power of attorney.

When children leave home and head off to college, we have enough to concern ourselves about, not the least of which is ensuring our children are taken care of while they are away. Helping your children put these four essential estate planning documents in place will give you peace of mind in knowing you have everything covered.

If you would like to discuss estate planning for your college-bound or attending child, please contact us today to schedule an appointment and put your mind at ease. Oh, and don’t forget the Easy Mac and ramen noodles – check and check!

Disclaimer

The information on this website is made available for education purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Fraser & Allen, LLC and that the information provided on this website does not constitute legal advice.

Probate Administration

When it comes to probate administration in Beaufort County and Jasper County, South Carolina, there are some important points to consider. Understanding the basics can help you ensure that everything is taken care of properly and efficiently.

Probate is the legal process whereby a deceased person’s assets are distributed in accordance with his or her wishes. The probate process begins with the filing of the deceased person’s will, death certificate, and a petition or application for probate with the county Probate Court. The petition or application must include the name(s) and contact information of the personal representative(s) (i.e., the executor) and other pertinent information. Once the will is filed and a personal representative is appointed, creditors must receive notice, which is published by the Probate Courts in Beaufort and Jasper County. The executor must provide notice to possible heirs and manage the payment of any debts and taxes. The executor must also file an Inventory and Appraisement of the estate assets with the respective county Probate Court.

In addition to the responsibilities of an executor, an experienced probate attorney can help make sure everything is legally binding and valid. An attorney familiar with the South Carolina probate law can help advise the executor on how to best proceed through the probate process by fully understanding the deceased person’s wishes, arranging for the payment of any taxes or debts, and ensuring the distribution of assets is correct.

At the conclusion of the administration of the estate, the will is brought before the Probate Court to finalize the terms. In Beaufort County and Jasper County, closing a probate can take anywhere from eight months to a year or more, depending on its complexity. After the will is approved, the personal representative of the estate is responsible for distributing any remaining assets to the heirs or designated beneficiaries.

Probate administration can be a complicated process, and it is important to have experienced help on your side. Knowing the South Carolina Probate Laws, county probate procedures, and working with an experienced attorney can ensure that the process runs smoothly and all assets are distributed correctly and efficiently.

Disclaimer

The information on this website is made available for education purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Fraser & Allen, LLC and that the information provided on this website does not constitute legal advice.

Unique Estate and Gift Tax Planning Opportunities

Estate and gift tax planning are important for those looking to manage their financial affairs and minimize taxes. With the right strategies, individuals can minimize taxes on inherited assets, pass wealth to future generations, and protect their heirs against potential risks.

Estate tax planning takes into account how taxes are affected if assets are transferred during a person’s life or after they die. By electing to gift assets while they’re still living, individuals can remove them from their taxable estate and reduce or even eliminate any taxes their beneficiaries may have to pay. Additionally, through proper estate planning, individuals can take advantage of deductions such as the unified credit, which can reduce a person’s estate taxes.

Gift tax planning is also an important part of estate and tax planning. Gift taxes are levied on certain transfers of money or property that are made without any provision for repayment. As with estate tax planning, gift tax planning offers individuals the opportunity to reduce their tax burden by gifting assets during their lifetime, and it provides a means of transferring wealth without a significant tax burden.

One unique estate and gift tax planning opportunity is utilizing life insurance. Life insurance can be used as a form of tax-advantaged portfolios and can help to shield one’s wealth from potential estate taxes. By purchasing life insurance, individuals can create a trust that will be funded with life insurance proceeds and designate how these funds are distributed among heirs.

In addition, individuals can take advantage of estate and gift tax planning tools such as Generation-Skipping Transfer Tax Exemptions, Charitable Giving Strategies, and Irrevocable Trusts. These tools can provide heirs with asset protection and help to minimize tax liabilities.

Estate and gift tax planning can be a complicated process, but proper planning can have a significant effect on future generations’ financial stability. With the right strategies in place, a family can ensure their wealth is passed down in a tax-efficient manner and protect their heirs from potential risks.

Disclaimer

The information on this website is made available for education purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Fraser & Allen, LLC and that the information provided on this website does not constitute legal advice.