The most obvious mistake is not to have a will at all. The news is replete with examples of celebrities who have died without a will, including: Prince, Michael Jackson, James Brown and even Abraham Lincoln. Dying without a will means that your estate assets will pass to your heirs according to the intestacy laws of South Carolina.
Under these intestacy provisions, if you spouse is living and you had no children (with any person), your assets will pass to your spouse. If you had children, your surviving spouse would get 50% of the assets of the estate. The remaining 50% will be divided equally among your children. So, if you had two kids, they would each get 25%. Only your children by birth or adoption meet this definition in S.C. Illegitimate children would usually have to prove their paternity.
If you did not have surviving spouse, your children would share equally in the estate.
An important point to remember is that only your spouse must survive in order to be an heir. If one of your children had passed away, their children will stand in their shoes and receive their share by representation.
In our state, a valid will must be in writing; the maker of the will (the testator) must be of sound mind and not be a minor; and the will must be witnessed by two witnesses who were present when the testator signed the will and who also witnessed each other sign the document. Usually, witnesses must not be beneficiaries of the will, and the will must be notarized.
Since a will is part of your legacy and is your final communication to your family, it just makes sense to use the services of a local estate planning attorney. If you and your spouse already have a will prepared, it is important that it be reviewed periodically to ensure that your bequests up to date and that your will recognizes any changes that have occurred in either federal or South Carolina laws or regulations.
One common mistake is to omit some assets in your will. Don’t forget your baseball card collection or your stash of Barbie dolls. Any assets you omit from your will are passed to heirs according the S.C. laws of intestacy.
Naming the right executor can be a challenge, since you want someone to serve in this capacity that is well organized, cool and collected and most importantly, is willing to assume these duties. It would not be a bad idea to name someone younger than you are, and to name an alternate executor in case your primary choice is unable to serve.
If you have younger children, you should choose carefully the guardians for those children and as you may want to think outside the box on this selection. It is important to remember that you can split up the duties of a guardian by naming a different guardian to handle the kids’ financial affairs vs. the person who provides care for your children. In so doing, you would have created a system of checks and balances. Be sure to consult with an attorney before you move in this direction, however. Usually, it is not a good idea to name the same person to serve as executor and guardian.
If you want to be sure to not disinherit you children, you may not want to leave the entirety of your assets to your spouse. There is the possibility that your spouse might remarry and zap the kids, particularly if you are in a second marriage or if your spouse and children don’t get along. One way around this dilemma is to utilize trusts for the kids. The use of trusts is also a key component in minimizing estate taxes if your estate is large enough. If you are thinking along these lines consult a local attorney to help.
Once you have a will, make certain you let your family know where it is kept, and it is usually not a good idea to leave the original in a safe deposit box, since it could be sealed by court order upon your death. Finally, as we have mentioned in other columns, be sure that you will is in synch with other documents, such as life insurance policies and other benefits that will pass directly to beneficiaries named in those documents.