Estate Planning
Losing a loved one can be an incredibly difficult thing to go through. What can be even tougher is when there was not a proper estate plan in place and assets have to go through the probate process that would not have been subject to that otherwise. If you find yourself in that position, having lost your spouse without having planned in advance, The Burr Law Firm can assist in the probate process. However, it is better for everyone involved if you make your plans ahead of time.
One of the most troubling things we see is when a spouse realizes that the home they lived in with their partner does not entirely belong to them at the death of their partner. I heard a great line from another estate planning attorney recently who said that everyone has a will, but either you’ve written it or the state of South Carolina has. In general terms, the South Carolina Probate Code gives a surviving spouse a one-half share of the estate if the deceased spouse had children. S.C. Code Ann. §62-2-101 (1976). This means that if your spouse dies and they had children, your spouse’s share of the home does not immediately become yours dependent on how it’s deeded.
When we work with clients on an estate plan, the first thing we do is check the deed to their home. It is usually deeded one of two ways, joint tenancy with rights of survivorship or tenancy in common. Most married couples wish to have rights of survivorship. Even if you have a Will, a home that is not held with rights of survivorship would still have to go through the probate process. One of our most common questions is, “How do we avoid probate?”
Oftentimes, it is impossible to entirely avoid probate. Something as simple as an outstanding credit card bill or line of credit from a store can require a surviving spouse to navigate the probate process. However, one of the best things that a married couple can do is be sure their home is deeded in a way in which to avoid probate. This is something you can check yourself by looking at your deed, or by having an attorney take a look. Most of the time, we can pull a deed up online while you’re on the phone and tell you how you hold title to your home.
If your home is not titled in joint tenancy with rights of survivorship, we can assist you with getting that change made easily and efficiently.
We love the opportunity to assist folks in creating a thorough estate plan that grows with them. We have recommendations for a complete estate plan that will protect and assist you in every way throughout life. However, the deed to your home and a Will are absolutely crucial documents to make sure you have set up the way you wish and that you understand them.
I often hear things like, “all my money is tied up in the house” or “my spouse is on my life insurance and bank accounts so I don’t need a Will.” I used to feel the same way. Then someone asked me, “What happens if you get hit by a Walmart truck and all of the sudden your estate is worth $10 million?” I know that’s a bit of a graphic example, but these are the things we have to think about to protect our loved ones.
We understand that estate planning can be scary and stressful, and we especially understand that death is probably not something you want to think about. We are here to make it as stress free and as transparent as possible. We are happy to field questions, check deeds, and explain the benefits of having a Will. If you have any doubts or concerns, contact us or another attorney you trust to take a look at your documents so you can sleep easy at night.
