Charleston Office – 843-718-0232 | Macon Office – 478-239-0010 info@wilesmcmichael.com
Top Planning Mistakes to Avoid

Top Planning Mistakes to Avoid

As the immediate economic impact of the pandemic begins to lift, it is understandable that many consumers, especially millennials, became interested in DIY estate planning during the pandemic to save on costs. Unfortunately, not all that comes cheaper is worth the price you pay—whether now or later. As you build your wishes for your estate plan, it is important to avoid these potential pitfalls while DIY planning. If you feel that DIY estate planning is still the best fit for you, please review the top estate planning mistakes so you can avoid a disaster. Once you are finished with your plan, we will even review it for free and let you know what may be missing or be problematic. Our best advice is to not go it alone, even if you use a software-based program. That said, if you are intent on doing so, here are the top planning mistakes to be aware of.

 

1. DIY pitfalls. Many DIY estate plans are not led by real attorneys, but by software-based programs that may or may not be up to date with the latest laws. Further, most DIY companies charge extra for simple planning questions that are generally included in a regular attorney-client based meeting.

 

2. Mindset of being too young for a plan. Often, people feel they may be too young to have an estate plan. As the pandemic has proven, illness and incapacity can strike at any time and at any age. It is important for everyone over the age of 18 to at least have an advanced medical directive established while you are healthy and of sound mind. This way your wishes are detailed regarding your care preferences. You can also set up documents to protect any pets you may have that might need care in the event you become incapacitated.

 

3. Myth of not “owning” enough. Even if you have nothing to leave behind to an heir (or if you have no heirs at all) it is important to document your wishes for care, should an emergency happen. There is no magical number of assets, cash or real estate, that qualifies someone to have an estate plan. Estate plans are for all walks of life and budgets. Creating a trust is not just for the wealthy either. A trust can be affordably created to protect any assets from probate. You do not need to have a certain amount of money to benefit from having a trust and, likewise, you do not need spend a lot to create one.

 

4. Lack of understanding legal terms. It is okay to admit if you do not understand what estate planning is or what your previous or current plan entails. We are here to help demystify the process and explain every word, every step, in-depth with you. Some law firms and DIY companies have a complicated and antiquated process of creating an estate plan—but not Wiles Law. What makes us different is that we find strategic ways to protect your estate through new planning structures, staying on top of changing estate laws, and sourcing and innovating new systems. Our planning happens in three easy steps— Design, Sign, Align—so you can spend more time on other parts of your life that matter more.

 

5. Important life events. Pandemic living has created endless to do lists and lack of free time — making it easy to forget to update important documents after a birth, adoption, death, marriage, divorce or move. We understand you need to catch your breath after a difficult year of rebuilding. When you are ready to make important updates to your plan, we can help you quickly and easily. In a perfect world it would be best to make updates immediately or within a few months of an event happening. We understand that may not be possible for some, so our best advice is to not wait longer than six months as laws may change that impact your estate.

 

6. Not building in a plan for long term care or disability. We all forget to think about long term care. It is not something we want to plan for, but it is something to consider. Most of us hope we will live long into old age gracefully, but the chances of disability or long-term care is more likely than you may think. By the time you reach 65 years old, there is a 70% chance you will need long term care insurance. Women are more likely to need care longer than men by an average of 7 years. Do you have this built into your estate plan with coverage and funding?

 

7. Incorrect titles and funding. This is one of the most common mistakes we see. If you have a trust, you want to make sure your assets are titled in the name of the trust, not necessarily your legal name. This way the asset is protected from probate by the trust, not you. Once the asset is properly titled, you will also want to include plans for funding. Your estate plan does not work unless you set up instructions on where the funds will be coming from and how they will be distributed.

 

8. Not planning for minors and guardians. If you pass away while your children are minors, the court will appoint a guardian who will control their legal inheritance until the children are 18 years old. But, if you elect to create a revocable trust for your children, you can protect them from lengthy court proceedings and allow the guardian to take immediate care of them with your provided inheritance. This can also protect them from irresponsible spending habits and creditors by using specific terms established by you.

 

9. Forgetting where your estate plan is. Many times we hear from beneficiaries or personal representatives asking if we have information regarding where your plan is located. Ideally, you should give a copy to your personal representative BEFORE you become incapacitated or pass away so there can be an honest conversation about the plan, instructions, and a chance to ask any questions. We also keep a copy on file at our offices as well. While you review your plan with your personal representative, it is important to discuss any details for minors, guardians, or pets who also need to be taken care of through the estate.

 

10. Not formalizing the plan, legally, with an attorney. Work-in-progress plans or handwritten notes are better than no plan at all, but unfortunately, they will not hold up in a court of law. Once you have come to an agreement on how you would like to protect your estate, it is important to bring those plans, ideas, and questions to an attorney to formalize and make a valid estate plan. As a part of our services, we encourage clients to write their own “Legacy Letter,” which details specific information on how you would like your legacy honored and continued to your heirs.

Estate Planning for Travel

Estate Planning for Travel

Now that domestic travel and some international travel restrictions are lifting, many are wondering how they can protect themselves and their families as much as possible while abroad. As the new Delta variant of the virus begins to spread, while travel begins to increase, estate planning for travel has become just as important as travel insurance. Secure your estate’s safety, care, and heirs should something happen with these easy travel reminders.

  • Ensure your documents are up to date and in the hands of your personal representative or children. This includes any updates to your trust, will, HIPAA, power of attorney, and health care proxy. Please consider bringing your advanced health care directive document with you when you travel, so emergency personnel can be informed. If you are an iPhone user, consider adding this information to your Health app, as emergency workers are still able to access it even if your phone is locked.
  • If you have not yet named a guardian for your minor children, it is important you do so. If you are planning to travel with minor children, remember to bring their passport, birth certificate, or any other credentials that prove their relationship to you. Especially if you plan to travel due to adoption, it is important to establish parentage rights in other countries before you leave.
  • Double check your life insurance policy to see if your coverage still fits your family’s needs. Consider getting long-term care insurance, in the event you or your spouse becomes injured while away.
  • Consider travel insurance as some options include provisions for repatriation of remains to transport a body back to their home.
  • Ensure your digital assets are secure and known to your personal representative. This includes organizing and creating a paper trail of all your logins and passwords to key accounts, even social media accounts.
  • Talk to your personal representative and/or children and let them know your plans for travel, your estate plan location, and any emergency contacts. The more you discuss your plans, the more everyone feels comfortable and ready.
  • If you are divorced and have minor children, consider taking written documentation authorizing consent to travel from the other parent.
  • If you are traveling outside of the United States, take pictures of your identification cards, including passports, to help you establish yourself more easily at an embassy.

At Wiles Law, we want you to confidently enjoy your summer vacation, whether domestic or international. Even if it is just a road trip across country for a family reunion, you and your immediate family deserve to be protected. Let us help you make these quick updates or changes to important documents before you leave. When packing for vacation, we all create a “to do list” of things to tackle or remember before leaving. Do not forget to add these eight items to your list to ensure your safety and coverage. If all these items have already been completed, do not forget to check your plan again for any updates you may need to make, such as life events of marriage, a move, birth, or even if you prefer to make a change in beneficiary. Estate planning is an on-going task that should be considered every three to five years as your life changes. Using every major trip as a reminder to update your plan will help you create peace of mind while on vacation and leave a gift to your heirs.

Estate Planning for Pets

Estate Planning for Pets

During the pandemic, Americans adopted more pets than ever, particularly rescue dogs and cats. As many people are now able to work from home, the remote workplace has created the perfect opportunity to train a new pet and create a welcoming environment for their new family members. Pets have become an integral part of our families and, therefore, an integral component to estate planning. Oftentimes, many pet owners outlive their pets, but in some cases, the pet may outlive their owner. Frequently, owners forget to include pet care provisions and wishes regarding ownership after their death in their will or trust.  In case you are a part of the group of Americans who will be returning to an office environment by the end of the year, consider a few ways to protect your pets before you leave home and beyond.

There are several preplanning options to think about, including pet care, pet ownership, and funding to your preferred caretaker. Under current South Carolina law, pets are treated as personal property, along with furniture, jewelry, artwork, and cars. If you are leaving any valuables to heirs, you should also have a plan on how to provide financially for the care of your pet. Reason being, if your pet’s welfare is not outlined in a trust, then ownership of your pet can be an issue for probate, potentially leaving your pet’s care to be determined by a Probate judge.

In a perfect situation, you would pre-select who will become your pet’s caretaker, including an alternative option or rescue organization, should a change occur. Funding the care of the pet is the most important component in preplanning. This allows your designated caretaker to receive adequate funds to continue your specified level of care. Some leave a cash amount ranging from $10,000 to $50,000 per pet, and others create a funded option of a “Pet Trust,” through a revocable trust. A pet trust, as we mentioned earlier, protects the pet from going through the lengthy probate process. The rules for a pet trust (referred to as “trust for care of animal”), is created to provide for the pet and may last during the pet’s remaining lifetime, or, if there is more than one pet, upon the death of the last surviving pet. The amount of cash to be allocated to fund a pet trust should be reasonable to provide enough funds to care for and maintain the pet’s good health but should not be in excess. In deciding on the appropriate amount with which to fund the trust, considerations such as the pet’s food, medicine, grooming, exercise, veterinary care, weighed against the age and health of the pet, should be considered. South Carolina’s pet trust law was enacted in 2006, providing protection of care of an animal alive or in gestation during the owner’s lifetime. The trust must also terminate upon the death of the last surviving animal.

Your pet trust should also include two other key components on what happens upon the death of your pet: remainder funds and disposition. If your pet passes away and there is money remaining, you should think about designating a remainder beneficiary in the event the funds in the pet trust are not exhausted. You may also provide instructions for the final disposition of your pet (i.e., burial or cremation).

If the security of a pet trust is not for you, you can also simply gift the pet in your will (note: the pet will be a part of the probate proceedings), leave a letter of instruction, or have an in-person conversation with your preferred caretaker in advance. Pet trusts offer owners and pet lovers flexibility and peace of mind that their companion will be cared for with thoughtful contingency plans, should anything happen. Additionally, caregivers will be comforted knowing that they can afford and continue the dependent care of someone’s beloved companion.

Source: https://www.animallaw.info/statute/sc-trust-%C2%A7-62-7-408-trust-care-animal

12 Things Your Real Estate Attorney Wished you Knew

12 Things Your Real Estate Attorney Wished you Knew

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Buying or selling a home can be a long and sometimes difficult process, especially if you have never done it before. From working with an agent to hiring a real estate attorney it’s important you don’t miss any key steps throughout the process. Whether you live in Phoenix, AZDenver, CO, or Charleston, SC hiring a Real Estate Attorney and working with the right team of professionals will only ensure your homebuying or selling process goes smoothly. To help with this process we asked experts from across the country to share their top tips with you.

1. Don’t try to rush through the process 

A big mistake that experienced real estate buyers make is that they try to rush through the process. They feel like they understand exactly how it is going to work because they have bought a home before. So, they end up rushing, making a few key mistakes in the process. Remember that this is an important financial decision with substantial legal implications and it is important to take the time to get it right. Nobody should try to rush through this process when they are looking for a new home. -David Rocheford, ​The Law Office of David R. Rocheford, Jr. 

2. Understand how much paperwork is involved 

Attorney’s wish buyers and sellers understood just how much paperwork will be involved! Many first-time buyers and sellers think they’ll sign their name once and the closing will be complete. In reality, buyers and sellers need to sign 10+ documents, and often much more! -Sean O’Dowd, Close Concierge

3. Have your funds squared away before you start house hunting  

A good real estate agent will tell you to always know where the money is coming from before you even start looking. In real estate, acting fast gives you a HUGE advantage over other buyers. If your dream home goes on the market, you want to be ready to put in an offer as soon as possible. In order to do that, you need to have the funds already squared away so that you can make the most competitive offer upfront. –Agent Advice

4. Be prepared to make fast, difficult decisions 

One thing that buyers need to be prepared for is the incredible speed at which they need to make major financial decisions. In a hot market like Phoenix, Denver, Boise or Salt Lake City it’s hard to find a median-priced, detached, single-family home that survives past the first weekend. When a buyer asks “what do you think we should offer?”, I tell them that if you really want this house you need to make your best and final offer up front. In 2021 the asking price is more like the starting bid at an auction and the cash-heavy, decisive buyers are winning. –Michael Bennett, Atlas Real Estate 

5. Hire a good home inspector 

A competent home inspector can uncover expensive construction defects you may not see during a walkthrough of your potential dream home – allowing you to walk away before closing. However, if you discover a problem after closing that the sellers did not reveal, your options are to pay for the fix yourself or file a failure to disclose lawsuit. So do yourself a solid: hire a good home inspector. –Robinson & Henry, P.C.

6. Don’t forget to update your estate plan 

One of the biggest mistakes we see is when clients forget to update their estate plan with the new home or property recently purchased. Specifically, the mistake occurs by not updating their plan to include the deed and title to their new home in their Will or titling the new asset incorrectly. Secondly, it’s important to give implicit instructions on how you would like your home or property distributed upon your death, including any joint owners with right of survivorship. It is integral to update your estate plan every three years or after key life events, such as moving to a new state and/or selling or buying a new home. –Wiles Law

7. Understand your credit score

It’s so important to Understand your credit score and what type of impact that is going to have on your ability to get a mortgage and finance the home you intend to purchase. Knowing your credit score is one of the best tips we can give to buyers who want to begin the home buying journey because it truthfully starts with being ‘able’ to buy a house. If you are not able to buy a house then you need to figure out what needs to happen in order for you to be able to, and that begins with understanding your credit score and personal finances. -Ryan Fitzgerald, UpHomes 

8. Take time to properly complete the seller disclosure 

When selling a home take the time to properly complete the required seller disclosure. Failing to disclose information about your home that could materially impact a buyer’s decision to purchase can result in legal liability. Read the questions carefully and answer truthfully and completely. In certain situations, it may be prudent to seek legal advice in complying with disclosure requirements. –Bailey Law Firm  

9. Know that a Real Estate Attorney can save you money 

I wish that home buyers and sellers knew that using a Utah real estate attorney can eliminate a large amount of commission owed to a Real Estate agent. A Real Estate Attorney is also an expert in drafting contracts and can craft and create a sale agreement that specifically protects your interests. -Brian K. Jackson, Brian K. Jackson, LLC

10. Talk with your agent to find out when you will have access to your new home 

In South Carolina, there are some counties in which, traditionally, the keys are not transferred to the buyer until after the deed records.  Recording can sometimes be delayed until the day after closing, therefore, please speak with your Agent to discuss when you will be given access to the property. -Angie D. Knight, Grand Strand Law Group, LLC

11. Be aware that buyers need their own title insurance policies 

Buyers need their own title insurance policies! Title problems could be as mundane as a border dispute and the insurance policy you bought for your lender will not provide any coverage. Only your own title insurance policy can protect you and they are relatively inexpensive compared to what you could be paying in future lawyer fees. –Phillip A. Curiale, Curiale Hostnik PLLC

12. Communication is the key to a successful closing

 When a closing attorney reaches out to the consumer there is a genuine purpose. Most often the closing attorney is in need of vital information that will keep the closing on schedule. For example, the closing attorney may reach out to the seller to get mortgage account information, homeowners association contact information, or the last four digits of social security numbers so that the closing attorney can get information to clear liens. The closing attorney may also reach out to a buyer for information about the lender, whether or not the buyer wants a survey, how the buyer intends to hold title, or if the buyer plans to attend closing or close via power of attorney. Thus, when the closing attorney’s office reaches out to the consumer it is imperative that the consumer respond immediately as the request is most often time-sensitive. –Blair Cato Pickren Casterline, Podcast: Dishin’ Dirt  

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Lexi is part of the content marketing team and enjoys writing about real estate and design trends. Her dream home would be a contemporary home with an open floor plan, lots of windows, and a waterfront view.

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Intestacy: Dying Without a Will

Intestacy: Dying Without a Will

Despite the COVID-19 pandemic and lowered life expectancy rates, two out of three adults still don’t have a will or any type of estate plan. Did you know that if you pass away without a will in South Carolina, the state will decide who is legally entitled to inherit your estate? And if you have no plan with no heirs, the State of South Carolina will inherit your entire estate. Dying without a will or “intestate,” means you have no legal document protecting your estate, such as a Last Will and Testament or Living Will that details your wishes. Even wills written by hand or orally recorded could be a better option than no will at all because the presiding judge of your estate could at least have some type of understanding of your intentions for distribution. For the record, both oral and written wills are not valid or legally binding in South Carolina. Only written wills that have been signed and witnessed by two adults make the document valid in the Palmetto State.

With no legal plan for your estate, the intestacy laws of South Carolina will determine how your estate can and will be distributed upon your death. Your loved ones will have no control over the distribution of your property, and you will be voiceless over who will care for your minor children (if you have any). It also could require a court-appointed guardian to be named for your children’s care who can make medical or financial decisions for them. At a minimum, all adults must have a will or trust, to govern the disposition of their assets, an advanced medical directive to appoint a person to act on their behalf in the event of incapacity or disability, and a guardianship set up for any minors. If no plan is set up, the estate will then go through the lengthy Probate process, where a judge will oversee the estate’s distribution. Your wishes will be unheard as the Probate judge can solely make recommendations, and the presiding judge may not even hold a law degree. Depending on the type of assets in your estate, Probate could take six months to over a year and a half to resolve and result in costly court fees and legal expenses.

 

If you pass away intestate with a spouse and children, and if all goes well in Probate, your spouse will receive one-half of your estate and your children will receive the other half. If there are no children, the surviving spouse will receive the entire “intestate” estate. If there is no surviving spouse and no Last Will and Testament, the entire estate would go to your children equally. If one of your children is deceased, your grandchildren (if any) would share equally in the deceased child’s share, known as taking “by representation.” If you have no surviving spouse, no children or grandchildren, your parents will inherit your estate equally. If neither of your parents are alive, next in line is contacted until all heirs are identified. Half-blood heirs are treated the same as whole blood heirs. If you have no heirs, as defined under the South Carolina code, your estate will pass directly to the State of South Carolina.

Don’t let cost worry you about starting an estate plan, as it could cost your heirs more to go through Probate without one. If you don’t think you can afford an estate plan, and you are interested in online wills, rethink alternative options as online and DIY estate plans are software based and can be fraught with loopholes. You need to ensure that you are covering yourself properly under South Carolina law and that the software has been updated to the pertinent section codes. Some of the online companies don’t even let you ask basic planning questions, without incremental costs incurred, making the planning process more hectic and daunting than it needs to be. At Wiles, we charge you a flat rate vs. hourly so you can ask as many questions as you need to feel prepared. With our simple 3-step process, we’ll help you design a plan that works for you and your budget and strategize on the best way to leave a legacy behind. Some of our estate planning documents cost as little as $390, making this the best economical decision of your life.

If you still feel as though you cannot afford a will, there are a few things you can do to protect yourself. First, create another owner for your assets, such as real estate, bank accounts and personal property. This additional owner will then have joint tenancy with rights of survivorship. When you die, the property will automatically pass to the surviving owner.

If you want sole control of your bank or brokerage account, you can make it a pay-on-death (usually for a bank) or transfer-on-death (typically a brokerage) account. You’ll maintain sole ownership until your death, then it will pass to your beneficiary.

If you have life insurance, a pension, retirement account or 401k, you can name a beneficiary to receive the funds after your death — no probate court required. But you must make sure all of the pertinent documents are updated properly and accounts have been properly notified to make the changes legal.

At Wiles Law, we can handle all of the details on your behalf. You don’t have to worry about all of the intricacies of accounts when you build an estate plan with our experienced attorneys. That is what we are here to do- make planning easier and distribution seamless to your heirs. With a Living Will or Living Trust you can make all of the decisions when you are ready and update as time goes on, or as life changes. You’ll hold all of the control the entire time and we’ll handle all of the paperwork for you.

The pandemic is a grim but timely reminder to get your affairs in order before something quickly happens. As we have seen over the past year, dying without a will or trust in place can create serious complications to already overwhelmed and stressed-out families. Dying intestate not only puts your estate into Probate, but there is no guarantee that any of your wishes will be carried out because there is no documentation. Properly establishing your estate plan now not only takes care of your loved ones financially but can also save them a lot of emotional stress after you’re gone. Spending a few hours planning can positively impact your legacy for generations to come. One of the best gifts you can leave your family is a solid estate plan. And one of the best gifts you can give to yourself is an expression of your documented wishes and legacy narrative.

Sources:

https://www.charlestoncounty.org/departments/probate/estate.php

SC Code Section 62-2-102, 62-2-103, 62-2-105, 62-2-107