Wills

Lawyers are frequently asked questions regarding wills, such as “Do I need a will?” or “Can I prepare my own will?” or “What happens if I do not have a will?” The short answers to those questions are all very easy, but issues regarding wills, estate planning and estate administration can range from quite simple to quite complex, and no two people have the same set of life circumstances or the same quality and quantity of assets. The key to getting the estate plan that meets your needs is to discuss it with an attorney who is knowledgeable and experienced in the area. The potential options and solutions in each case can vary widely depending upon the facts of the situation and the objectives of the client. The will can be the key part of the estate plan, or it might just be a part of the solution. This article will focus primarily on wills, and we will leave the broader issues of estate planning and estate administration for subsequent discussion.

A will is a legal instrument, which if properly executed in accordance with the law of the jurisdiction where it is executed, disposes of the person’s “probate” assets in accordance to its terms, effective upon the death of the person making the will (called “testator” if a male, and “testatrix” if a female). What are “probate” assets? They are assets which are disposed of based upon the terms of the deceased person’s will, rather than by contract or operation of some other law or legal principle. It is sometimes easier to describe things that are “non-probate” assets, and then anything else that is not a “non-probate” asset is, by default, a “probate” asset.

The most common “non-probate” assets are life insurance, individual retirement accounts (both regular and Roth IRA’s), 401(k) retirement plans, and accounts (bank accounts and brokerage accounts) in which the account agreement itself determines ownership at death. The most common of these are accounts known as joint tenancy with rights of survivorship (JTROS) and pay on death (POD) accounts.

With respect to life insurance, IRA’s and 401K’s, the owner of the account designates the beneficiary or beneficiaries and he or she may also designate contingent beneficiaries in the event the primary beneficiary predeceases the owner of the account. If the named beneficiary predeceases the owner of the account, and no contingent beneficiary is listed, then such account passes to the account holder’s estate, and thus a “non-probate” asset is converted into a probate asset, because now the person’s will determines who will be entitled to the proceeds of these assets. If the person has no will, then each state has what are called “intestacy” statutes which determine who are the deceased person’s heirs entitled to receive the deceased person’s assets.

With regards to any real estate the deceased person owns at his or her death, it is possible that the real estate may be either a probate or a non-probate asset. Under South Carolina law an interest in real estate owned with another person is either owned as a tenant-in-common or as joint tenants with rights of survivorship. If the former, it is a probate asset, and if the latter, it is a non-probate asset. It depends on how ownership is set up in the deed creating the interest. It the person owns the real estate solely in his or her name, then it is a probate asset.

If all of this sounds complicated, it certainly can be. Our firm has seen certain recent extreme examples where people have drafted their own wills, which on the surface seemed to have most things covered, but which had disastrous results based on the person’s lack of knowledge of the law. There are numerous forms for wills available on the internet, some of which are perfectly fine forms, but which may still lead to disastrous results if the person using the form does not have a comprehensive understanding of the law. A person using such a form without knowledge of the law is probably getting a value comparable to what he or she has paid for the form, which is usually nothing.

Subject: York County SC Law. Wills.

Disclaimer: This article is for informational purposes, and it should not be relied upon as legal advice.