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Sponsored by the Community Foundation of Greenville
If you don’t have a will when you die in South Carolina, “essentially you’re letting the state legislature decide what happens to your property and who will administer it,” says former Greenville County Probate Judge Diane Smock. She talks with Jessica Ferguson of Turner Padget about wills, estates, and advance directives.
You’ll learn:
- Why it’s so important to have a will, health care power of attorney, and power of attorney – even if you don’t have a lot of wealth
- How not having a will can needlessly tie up your home and property from your heirs, especially your children Why having a will and advance directives in place is a gift you give your family after you die, preventing stress and disagreements during an emotional time
- That probate laws are state-specific, so you need your will reviewed if you live in SC but had it created in another state
- How to get a will drawn up if you make under 200% of poverty
- And much more!
Community Foundation of Greenville
Produced by The Greenville Podcast Company. Simple Civics: Greenville County is a project of Greater Good Greenville.
Transcript
Community Foundation of Greenville
This episode of Simple Civics is brought to you by the Community Foundation of Greenville. For more than 65 years the Community Foundation of Greenville exists to bridge philanthropy and purpose. We do this in three ways. We work with families and individuals to establish donor advised funds and to arrange bequest to make their charitable giving simple and more impactful. We work with local nonprofit organizations to build endowments to provide permanent supportive their work. Finally, we make grants from our unrestricted assets to fund important projects in our community. Please visit cfgreenville.org. to learn more.
Katy Smith
You’ve heard it said that where there’s a will there’s a way. Well, today, we want you to understand that where there’s not a will – as an a last will and testament – there is a lot of headache, heartache and cost for those folks you leave behind after you die. In this episode, we will learn all about wills and advanced directives, how important they are no matter if you have multiple homes and investments, or just a few belongings and how to go about putting a will and advanced directives in place. We have two experts covering this topic for us. Former Greenville County Probate Judge Diane smock, who serves in many community roles, including as a member of our greater good Greenville funders steering committee, talks with Jessica Ferguson, an attorney with Turner Padget. Jessica previously served with South Carolina Legal Aid, and she co chairs the young lawyers division wills committee. They refer to many helpful resources. And these are all linked in the episode page. Please share this information with the people you love, and make getting a will and advanced directives a priority on your to do list.
Diane Smock
So just get let’s just start with the basics. So what is a will?
Jessica Ferguson
Sure, so a will is a piece of your estate plan. And it’s a document that should be in writing, it needs to have two witnesses, it needs to be signed by the testator. That’s the name of the person who’s actually having the will drawn up for them. And it should be notarized. And a will is really important because it gives your family direction regarding what you would like done with your assets after you’ve passed away?
Diane Smock
And do you have to be rich to have a will or have a lot of money, a lot of property?
Jessica Ferguson
So no, I actually advise that everyone over 18 years old should have a will, a will is a way to honor the estate that you’ve built during your lifetime, no matter the size. And it also acts as a way to give your family direction regarding whatever assets you may own. It could be anything from a huge estate to a single vehicle. It’s a way to give your family that gift of direction after you’re no longer there.
Diane Smock
And what do you have to have a lawyer to do a will?
Jessica Ferguson
You don’t have to have a lawyer to have a will. But as a lawyer, I would advise you to at least have an attorney look at a well that you have drafted up yourself. Although there are very few statutory requirements to have a valid will. Having a good will is a different question.
Diane Smock
And I’ll just jump in and say I’ve seen cases where people got, for example, forms off of the internet that purported to be valid. And sadly, when they had to file them, they learned that they were not.
Jessica Ferguson
Right, right. I as a litigation attorney, sometimes I help on the probate administrative side of this area of law where I’m actually having to clean up a will that wasn’t done properly, wasn’t maybe completely flushed out. For example, one case, just speaking generally, this gentleman had a will that was drafted online. And in one area of the will he had given his house in totality to one child, and then a few pages further down, he had given the same house in totality to a second child. And unfortunately, neither of these children get along. And two people cannot own 100% of one house. So although he might have saved a little money up front drafting this will himself drafting it online, it actually ended up being a messier litigation case on the back end. So that’s just kind of a testamentary. To do it right up front. Take care of yourself and your estate while you’re living. And then again, it would act as a gift later on to your family.
Diane Smock
Another topic I’ve heard that a lot of people talk about is that they don’t make a will because they think it’s going to be expensive. They hear that probate is expensive. It takes a lot of time and why should I give the probate system the money when I want my loved ones to inherit it? What has been your experience in that?
Jessica Ferguson
Yeah. So having a will drafted generally, I will say is always cheaper than having an attorney clean up your estate on the back end. But typically, having a basic estate plan drawn up is very reasonably affordable. If you are an indigent client so if you are Under 200% of the federal poverty level, you can apply to South Carolina legal services. I served there for about two years, drafting estate plans for those who couldn’t otherwise afford them. And I just can’t speak well enough about this organization and its ability to provide estate documents for those who wouldn’t otherwise be able to purchase them. But otherwise, you know, I do recommend just maybe meeting with a couple of estate planning attorneys, asking them their fee schedules to be pretty straightforward with you. But it’s always better to have an estate plan than to risk potential litigation after your you’ve passed away.
Diane Smock
And I would also say on the probate side of things, the, at least in Greenville County, which is the largest and busiest probate court in the state, but most of them that I’m familiar with, and you’ve worked in Richland, as well, also a great court, the staff is very professional, very helpful. But while they can’t render legal advice, they can help if you if you need to do an inventory and appraisement and don’t know how to do it, they’ll help you fill out all the forms. All the forms are online. And it’s easily accessed and people are always available to answer your questions. So I would say even if you have a small estate, let’s say you own a house and a truck, which is not unusual for that’s the total estate, you still go through probate, but it’s very simple. It’s very, there’s a very minimal cost. In fact, there’s such a thing as a small estate proceeding, which if it’s a certain amount, if it’s under a certain amount, it’s just basically one or two pieces of paper.
Jessica Ferguson
Right, right. So for this small estate, it’s if the total value of your state is less than $25,000. And if you do not own real property, then the entire probate process is just one form the small estate affidavit, and it’s very straightforward, is very pro se friendly, meaning you shouldn’t need an attorney to help you through that. But of course, there are attorneys out there who can. On the flip side to so to probate a full estate, which means the person who’s passed away owns over $25,000 in assets and or real property, the probate administration process is going to take a little bit longer. So it’s going to be anywhere from eight months to one year after this person has passed away from the day their estate is filed until the day it closes. Whenever there is a larger state, there is a creditor claim period. So anyone that the person who passed away might own money, too, can file claims against their estate in the personal representative will deal with them that way. But again, the way South Carolina has designed the probate process, it’s supposed to be pro se friendly. It is very foreign based. And as you mentioned previously, the probate staff, although they can’t give you legal advice are incredibly helpful, helpful, incredibly friendly, very supportive. And they all very much are here for our community.
Diane Smock
Correct. So let’s talk about a little bit about what happens without a will. And I’ll just jump in, and I know you have a little have a lot to add as well. So if someone for whatever reason dies without a will. The South Carolina law dictates how the estate will be divided. And let me just mention that all probate law is state law dependent. So each state does have different rules. Let me just throw that in quickly on the on the for example, if you if you’ve moved here from North Carolina or Georgia, a neighboring state, for example, and you think well, I’ve already got a will I don’t need to do a new one. You really do need to at least let an attorney look at it because every state has different rules about who can do a will, how the will is witnessed how it’s attested all the technicalities,
Diane Smock
But it’s worth, again, just an appointment with the lawyer to at least make sure that the will you did in another state is valid in South Carolina. But let’s say you don’t have a will either a valid will or you don’t have any will and you die in in South Carolina or in Greenville County, particularly, what will happen? Well, essentially, you’re letting the state legislature decide what happens to your property and who will administer it. And that can lead to all kinds of complications. Even if you believe at at this moment in time as you’re thinking about this because you’re listening to us discuss it. Well, everyone in my family gets along. The kids are fine. I don’t own that much property. I don’t need a will I don’t care what happens. But unfortunately, many, many times unexpected things can happen later in your life. Hopefully now you’re healthy and well. But you could have health problems later and have to deplete some of your estate to pay for health care, for example. And your children are depending on an inheritance to pay for their education and there may not be money there. There are so many things to think about if there was a situation where there’s a prior marriage, and the children from the prior marriage don’t get along with The spouse who’s married to you at the time of your death. A lot of lawsuits have come out of that situation when there’s no will that makes it clear what your intentions are. If you have a special needs child, you need to provide for them. Set up a trust for them, for example, is one just one example. Because if you don’t, then the court will have to appoint someone to manage the inheritance for that child. So again, you’re allowing the state not to just to divide your assets upon your death, but also perhaps manage those assets for those who inherit depending on the circumstance. So there’s just example after example of things that can go wrong. Unintended consequences, unexpected circumstances, that can have a huge impact on what you thought was going to happen. Jessica, I’m sure you have a lot to add to that.
Jessica Ferguson
So I just wanted to kind of define testacy and intestacy. So testacy means that you have died with a well so that means someone has died testate. Intestacy are the South Carolina code of laws that dictate what happens to your assets after you’ve passed away if you don’t have a will. So that would mean someone who passed away without a will would mean that their estate is being probated, intestate, the way this works in South Carolina is if you are married, and you have no children, and you die without a will, everything goes to your spouse. Pretty straightforward, right? However, when you start having children, and you don’t have a will, if you pass away half of whatever you own goes to your spouse, and half of whatever you own is then divided between however many children you might have. So this is where some difficulties might begin to come up, right, because if a child inherits a piece of real property, say their name is now on a house, that house is essentially legally frozen. That cannot be refinanced, it cannot be mortgaged, it cannot be leased. Unless that miner has a conservator appointed for them through the probate court, as you had just mentioned. As you can see, and probably imagine, this can also create issues over generations, right. So in South Carolina, we have an issue with what’s called heirs property. And heirs property is any piece of real property that’s commonly referred to as family land that’s owned by usually more than two family members. So especially in the low country, in the mid country, we’ll see large pieces of family land that maybe was first purchased by someone’s great, great grandparents. And unfortunately, they didn’t have wills, they passed away with multiple children, maybe their multiple children didn’t have wills. And you actually end up in a situation where there could be 20 plus people who own one portion of land. And that can be difficult because each person as an owner has full legal rights to the land, they have the right to be there to occupy, they also have the duty to pay their percentage of the taxes, insurance and maintenance on the property. But does that always happen? Unfortunately, no. And then, especially thinking about my time at Legal Aid, these heirscproperty issues, because there’s not clear title, which means you either can’t tell who all owns a portion of the property, maybe the property is still titled in the great great grandparents name. And then the person who’s living there now actually cannot qualify for home repair services. So for example, Habitat for Humanity and rebuild upstate, both fantastic, wonderful organizations, they have to have clear title to be able to legally work on a piece of property. And unfortunately, when the person living on these properties, may need some financial assistance, repair assistance, they’re not able to qualify because of the way the title is for this property. So all that to say, uh, you know, another, this is another reason to get a will is because it not only protects your assets after you’ve passed, but could protect your assets for generations.
Diane Smock
And I’ll add another complication that I’ve seen quite often, you know, again, you may not think listening to this, oh, this will never happen to me. But these things do happen quite frequently, which is there’s, there are missing heirs, particularly in this situation you describe when there hasn’t been a paper trail through generations, one or two or more generations. So if heirs are missing, whether in that situation or any other reason, then you are required by state law to file a an advertisement looking for the whereabouts of the person and the law says in a newspaper of general circulation, which I’m not sure what newspaper that is 2022 or 2023. But it that not only delays things, it requires more court hearings, more paperwork, just more complications and I think it’s really important to to step back and remember when you’re going through probate, regardless of who’s handling things. It’s not just a legal process, it’s a very emotional time. In most cases, the person handling these papers and forms and processes, has lost someone very dear to them, maybe the person they love most in their life. So they’re dealing with a lot of emotional trauma, a lot of stress, a lot of worry for a variety of reasons. And so the simpler the probate process can be or the process after death, in terms of the legal issues, the better. So you can avoid so many of these stresses by doing a will even a simple will, if you feel like you don’t have a large estate or taxable estate to worry about those complications. Having a will can eliminate so many problems for the people you love.
Jessica Ferguson
I have a question for you now. So during your time when you served as Greenville County probate judge, you saw hundreds of families dealing with death of a loved one, right? Or maybe even a not so loved one if there was strife in the family, of course. What would you say to family members who may be uncomfortable talking about a will, because they’re uncomfortable thinking about death.
Diane Smock
The thing it is hard for a lot of people to face up to. And it’s you know, I think is human nature, we want to avoid thinking that’s a very difficult topic. So I always encourage people to talk to those first of all, to talk to people, they trust advisors, they would trust, it might be a clergy member, it might be another family member, whoever they they trust to give, you know, solid advice about, you know, planning ahead for the for the future, when they may not be there and in becoming comfortable with talking about it. But even in the absence of that, if I had an opportunity to speak with them, I would remind them of some of the problems we’ve talked about today that can come up on a regular basis for a lot of people. And just say if you want to, if you truly care about what happens to your loved ones, after you go, this is the most loving thing you can do is to plan ahead with your will and also other advanced directives, which I think we’ll get to in just a moment. And I haven’t gone through this myself with my parents, and then with my husband, for our children and our grandchildren. It can be awkward at first for some folks. But I think having a family meeting when everyone is discusses this, it means that everyone knows what the expectations are, they know the realistic hopes and dreams of the person who may predeceased them. And it gives everyone a chance to be on one page and know they’re doing what their loved one wanted to happen.
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