Planning for Life
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Frequently Asked Questions

Have questions? We'd be happy to assist you. Browse through some common questions below. 

Estate Administration

Q: What is the probate process?

Probate is the process of transferring assets from someone who has died to the persons surviving them. It is not a process generally directed to long-term management of assets (trusts are more commonly used to address this need).

Q: What are the major steps in the probate process?

A) Proof (probate) of the will and appointment. In this part of the process, the Probate Court decides whether or not a person had a valid will and appoints a personal representative.

B) Inventory. The personal representative must file a list of the estate’s assets and their values. In South Carolina, this filing is called the Inventory and Appraisement.

C) Advertisement to Creditors. Shortly after a personal representative is appointed, the court runs an advertisement in a newspaper notifying creditors of their right to file a claim. In South Carolina, creditors normally have eight (8) months to file a claim. 

D) Distribution and Accounting. After the creditor’s claim period has expired, the personal representative distributes estate assets to those entitled to them and files an accounting with the Probate Court showing what they have done.

E) Discharge. If the Probate Court agrees that the appropriate distributions have been made and all other requirements have been met (such as payment of fees), then the Probate Court will discharge the personal representative.

Q: How long does the probate process usually take?

In South Carolina, the probate process usually takes 13 to 15 months, mainly because of the 8 month creditor’s claim period.

Q: Are there special probate proceedings for smaller estates?

Yes. South Carolina law provides a shorter probate procedure for estates whose value is less than $25,000.

Q: Is probate an easy process for most people?

Most people find probate is significantly more involved than they thought. Even where there is not a lot of legal complexity, there is often a large number of practical tasks, such as dividing personal property, appraising assets, transferring bank accounts and securities, filing life insurance claims, claiming employee benefits, and many more.

Q: Should family members handle probate themselves, with Probate Court assistance?

We realize that many people do this, and the Probate Court in most South Carolina counties is usually very helpful. On the other hand, there are often legal issues involved with estates, and lay persons may or may not be aware of them or know how to handle them. We believe that engaging an attorney to provide guidance and to help you handle an estate is usually a good idea.

Estate Planning

Q: Why should I bother with estate planning?

Estate planning is the process of planning the disposition of your property (estate) after your death and, to some extent, during your lifetime. The goals of a solid estate plan follow:

  • To transfer your assets to those you want to have them;
  • To avoid unnecessary taxes and administrative expenses; and
  • To do this as quickly and simply as possible.

If any of these things are important to you, you should consider estate planning.

Q: What does a will accomplish?

A will is the most common document used to control the disposition of your estate at your death. Some of the functions of a will are listed here:

  • To decide who gets your property rather than letting the laws of South Carolina decide for you;
  • To provide for your spouse, minor children, or other family members;
  • To avoid the expense of bond premiums;
  • To name your choice of a personal representative (executor) of your will;
  • To name a guardian for your minor children or incapacitated adult children; and
  • To make provisions for the sale of real estate and other property without court proceedings.
Q: What happens if I do not leave a will?

Contrary to popular belief, your estate does not go to the state automatically. Rather, the laws of the State of South Carolina will determine which of your relatives gets your estate and how it will be administered. The formula used is very rigid, and often the results are unexpected or unsatisfactory. The Probate Court will appoint a personal representative according to a priority list who may or may not be the person you would want to serve. Often the costs of the administration of an estate and the risk of litigation is greater for estates where there is no will.


Q: Is my out-of-state will valid in South Carolina?

The simple answer is usually yes, but due to differences in state laws, sometimes changes are necessary. If you have moved to South Carolina from another state, it is wise to have your will reviewed by a South Carolina lawyer who can advise you whether you need to make any changes to your will.

Q: How will estate taxes affect my estate?

A married couple with less than $10,500,000 of assets (in 2014), including life insurance, will not normally have to pay estate taxes. However, the federal estate tax laws are very complex, and their application to an individual situation should always be evaluated by a qualified professional. With proper planning, your exposure to estate tax liability can often be reduced and sometimes even eliminated.

Guardianship and Conservatorship

Q: Are there alternatives to guardianships or conservatorship?

Yes. If a person has signed a financial power of attorney or a health care power of attorney, a guardianship or conservatorship might not be necessary. Also, under the South Carolina Adult Health Care Consent Act (SC Code Annotated §§44-66-10 et seq.), certain relatives of an incapacitated person can make health care decisions on their behalf. Of course, there is no guarantee that third parties (such as banks, doctors, or hospitals) will accept a power of attorney. Particularly when there is disagreement among the family, this could be a question. 

Q: What is the difference between guardianship and conservatorship?

Guardianship is a court appointment to make personal care decisions (such as medical or health care-related decisions) for an incapacitated person. Conservatorship is a court appointment to make financial decisions and handle financial matters for an incapacitated person.

Q: Does a person have to be mentally incompetent to have a guardian or conservator?

No. The law requires only that the person be incapacitated, which is not the same as mental incompetence. An example of someone who is incapacitated, but not incompetent, is someone who is mentally ill (they may always have a mental illness, and thus be incapacitated, but the illness may not always make them mentally incompetent).

Q: If a person is incapacitated, are there other requirements to satisfy before a guardian or conservator can be appointed?

Yes. Usually the court must find that there are matters of either a financial or personal care nature that must be handled and that there are no other adequate measures in place, such as powers of attorney, that could resolve them. Other requirements exist to protect the person involved, such as the requirement that an attorney represent them in court.

Q: Are there special kinds of guardianship and conservatorship?

Yes. These appointments can have limited purposes, such as creation of a trust, sale of real estate, or transfer of assets. They can be limited in duration when the necessary actions can be taken quickly. They can also give only limited powers, such as a guardianship of a disabled person who might be able to handle some, but not all, of their decisions.

Q: Can a guardianship or conservatorship be started on an emergency basis?

Yes. This is frequently the case, since a disabled person may be in some imminent danger, and immediate court intervention may be necessary to prevent serious harm. Courts usually require specific proof of the circumstances creating an emergency.

Q: Are there differences between powers of attorney and court appointments such as guardianship and conservatorship?

Yes. Agents under powers of attorney are chosen by the person involved, and they can exercise whatever powers the power of attorney gives them (whether broad or limited). Conservators and guardians are appointed by a court and exercise powers conferred on them by the court, as well as (usually) a set of statutory powers.

Q: How long does it take to establish a conservatorship or guardianship?

The time period can vary considerably, but the simplest proceedings usually take at least thirty days, and more complex proceedings can take six months or more.

General Questions

Q: What are the major legal steps a person needs to take as part of life planning?

"Planning for life" means planning for your personal care and financial needs while you are alive as opposed to "estate planning," which usually means planning for what will happen to your property and who will get it when you die. Prudent provisions for your needs, such as health and long-term care insurance and investment planning, are a part of the process. The most important legal steps are measures that allow your property to be handled should you be disabled and to provide for your spouse and family if you’re not able to do it yourself. These measures include a financial or durable power of attorney, health care power of attorney, and a living will. A living trust can also often help accomplish these goals.

Q: What is a durable power of attorney?

A durable power of attorney appoints another person, often your spouse or another family member, to manage your financial affairs on your behalf if you are either unavailable or incapacitated, physically or mentally. These duties might include writing checks, making deposits, managing your investments, and selling your property, for instance. A durable power of attorney is effective even if you are incompetent, but is not valid after your death. It is important for most people to have a durable power of attorney, as it will normally eliminate the need for a court-approved conservator should you become mentally or physically incapacitated. Needless to say, the person given the durable power of attorney should be someone you can thoroughly trust.

Q: What is a health care power of attorney?

A health care power of attorney is a document that names an agent to make health care decisions for you if you’re not able to make them yourself. A valid health care power of attorney can often eliminate the need for a court-appointed guardian to make these decisions for you.

Q: What is a living will?

The South Carolina Death With Dignity Act allows you to make a Declaration of a Desire for a Natural Death, commonly called a living will, instructing your physician to withhold or even withdraw life-sustaining procedures in the event you are in a terminal condition or a condition of permanent unconsciousness. The living will arose in response to several very well-published cases where family members of terminally ill persons could not have life-sustaining procedures terminated without a court order.

Q: Are my out-of-state powers of attorney and living will valid in South Carolina?

South Carolina, like many other states, has laws stating that out-of-state powers of attorney and living wills that were valid when and where they were signed are valid in South Carolina. That being said, there are many potential problems involved in using out-of-state powers of attorney. For example, we have seen powers of attorney that were executed in states requiring only one witness rejected by South Carolina real estate attorneys (since South Carolina law requires two witnesses for most real estate documents). Our advice for new residents is to replace out-of-state documents with South Carolina ones when possible.

Q: What is HIPAA, and how does it affect me?

HIPAA (Health Insurance Portability and Accountability Act) is a massive federal statute which, among other things, contains privacy provisions applicable to most medical records and health information. Unfortunately, many health care providers and facilities have interpreted HIPAA to prohibit discussion of health care issues with family members who don't have a specific written authorization. Even though this may be an overly broad reading of HIPAA, it is a major reason we feel that health care powers of attorney containing HIPAA consent provisions are a good idea.

Q: Should the agent be the same in a financial power of attorney and a health care power of attorney?

Many times the person in your family who is adept with financial matters is not equally adept with health care decisions. It is often appropriate, for this reason, to appoint different persons as agents of the two different kinds of powers of attorney.

Q: What is a springing power of attorney?

A springing power of attorney is one that is only effective if the person signing it is mentally incompetent or, sometimes, physically disabled. Upstate Elder Law, P.A. does not recommend springing powers of attorney due to the difficulty (in many cases) of determining whether the condition of incompetence has been satisfied. If there is doubt about this, the springing power of attorney may not be accepted without a court order declaring the person who signed it to be mentally incompetent.

Q: Is the Five Wishes document valid in South Carolina?

Yes and No. The South Carolina Supreme Court has passed on this question, but as a result of legislation passed in 2005, the general opinion is that the Five Wishes document, providing it is properly signed and witnessed, can be a valid health care power of attorney in South Carolina. This doesn’t mean that everything you might say in the Five Wishes document is valid and will be literally enforced, though.

Q: Do I need an attorney to help me with my health care directives?

We are well aware that there are internet forms, forms available through medical providers, and the Five Wishes document that clients can use without the assistance of an attorney. You may be able to secure a valid document in this fashion. On the other hand, if you have questions or aren’t sure how to sign the document or what choices are valid, an attorney can give you advice that may ensure that your document will be valid and is likely to be enforced.

Medicaid Planning and Qualification

Q: What is Medicaid?

Medicaid is a federal welfare program that provides medical treatment, including nursing home care, for low income individuals and families.

Q: How do I qualify for Medicaid?

Medicaid is a "means tested" program. To qualify, a person must have assets (termed "resources") and income below certain limits. In general, an individual's assets must be worth less than $2,000 and their monthly income below less than $2,199 for 2015. These and other numbers connected with the Medicaid program change at least annually. A person must also meet a medical qualification for Medicaid, meaning that they must meet standards that indicate they need the care provided to them.

Q: Are some assets "exempt" for Medicaid purposes?

Yes. Among other things, a home, a car, personal effects and clothing, and a modest amount of life insurance are usually considered exempt, meaning they do not count toward the Medicaid resource limitations.

Why is Medicaid planning important?
Medicaid is one of the few state or federal programs which provide assistance with nursing home expenses. Given the high cost of nursing home care, Medicaid is the only practical way to pay for nursing home care for many people.

Q: Is Medicaid planning for couples different than planning for a single individual?

Yes. The spouse of a nursing home resident is allowed (in most instances) to have more assets and income than the spouse who is in the nursing home. In fact, Congress deliberately enacted provisions in the Medicaid law to make it possible for the community spouse to survive financially. The details are complex, so if you need help navigating those tricky waters, please let us know.

Q: What is Medicaid Estate Recovery?

After a Medicaid beneficiary dies, the state Medicaid authorities can make a claim against his/her estate to recover the amounts Medicaid has paid for his/her nursing home care. Usually the home (which was probably exempt) is the primary asset that can be subject to estate recovery. Qualifying for Medicaid and avoiding estate recovery after death is often very difficult to accomplish. We can help.

Q: Is it morally right to do Medicaid planning?

Yes. No one feels it is morally wrong to plan to take a tax deduction to reduce one's income tax liability. Planning to become eligible for Medicaid in a legal manner to reduce the expense of nursing home care is no different. In fact, Congress deliberately enacted provisions in the Medicaid law to allow many middle class people to qualify for Medicaid who would otherwise be excluded. Obviously, Congress intended that these provisions would be used.

Q: Why is Medicaid planning important?

Medicaid is one of the few state or federal programs which provide assistance with nursing home expenses. Given the high cost of nursing home care, Medicaid is the only practical way to pay for nursing home care for many people.

Special Needs Trust

Q: What is a trust?

In a few words, a trust is a legal arrangement in which a person or firm (the trustee) manages money or property for the benefit of another person (the beneficiary).

Q: What is a Special Needs Trust?

A Special Needs Trust is a trust for a disabled person designed to preserve the disabled person’s eligibility for public benefits.

Q: For whom is a Special Needs Trust appropriate?

A Special Needs Trust is appropriate for a disabled person who receives means tested public benefits (usually SSI, Medicaid, VA benefits, housing subsidies, or other benefits), or who inherits money, or who receives a settlement or a gift.

Q: What makes a Special Needs Trust necessary?

Ordinarily, the receipt of funds causes the disabled person to be disqualified for his or her public benefits. Thus, the funds would have to be spent until exhausted to provide the same necessities that the public benefits were providing. After spending all of the money, the disabled person would again (presumably) qualify for their public benefits. Thus the receipt of the gift, inheritance, or settlement produces no permanent benefit for the disabled person. On the other hand, if the gift, inheritance, or settlement is placed in a Special Needs Trust, the disabled person can continue to receive means tested public benefits.

Q: Are there limitations on how money in a Special Needs Trust can be spent?

Yes. It stands to reason that if the funds in the trust were as easily available as they would be in a bank account there would be little reason the assets in the trust would not also disqualify the disabled person. For this reason, there are limitations on the purposes for which the funds in the trust can be spent; in general, the trust assets cannot be spent for food and shelter or other needs public benefits in general are intended to provide. Since cash disqualifies many disabled persons from their benefit programs, Special Needs Trusts usually pay expenses for disabled persons and do not distribute cash to the disabled person.

Q: Does a Special Needs Trust provide investment management for the disabled person?

Yes. The trust can also ensure that the settlement fund will be properly managed, often for beneficiaries who cannot manage large amounts of money themselves.

Q: What are some common examples of the “supplemental needs” that a Special Needs Trust can provide?

Supplemental needs are the needs other than the basic support needs of the disabled person (food and shelter). These can include modifications to make a residence appropriate for the disabled person; medical treatment and medical equipment not provided by public benefit programs; educational and recreational equipment, such as computers, musical instruments, and sports equipment; travel expenses; prepaid funeral arrangements; and recreational opportunities (just to name a few). Clothing was formerly prohibited, but now can also be purchased by a Special Needs Trust.

Q: Are Special Needs Trusts important in estate planning for the parents of a disabled person?

 Estate planning for a couple with a disabled child usually involves planning for living arrangements and personal care needs for the disabled person and additional measures such as a special needs trust to preserve the benefits of an inheritance for the disabled person for the longest possible time. Often the supplemental needs that such a trust will fund are carefully tailored to the disabled person’s anticipated needs.

Q: Do trustees of Special Needs Trusts need any special help?

Yes. The legal rules applicable to special needs trusts are often very complex, and the advice of an attorney familiar with SSI, Medicaid, and other means tested public benefit programs is often essential to prevent distributions from inadvertently disqualifying the disabled person from such public benefit programs.