What is Estate Planning?
Estate Planning is the process of determining how one’s assets are handled, distributed, and dealt with when a person dies or is incapacitated. Estate Planning for most people is usually writing a Will or Living Trust (with a pour over Will). However, Estate Planning for every married couple should be so much more than that. In this article, we are going to spell out the importance of how Estate Planning can help you and your spouse prepare for life.
Why Have a Will or Living Trust?
A Will is a document that describes how you wish your estate (personal assets and real property) to be distributed upon your death. After a person’s death, his/her Will goes through probate, which is the court process of notifying all necessary people and parties and distributing one's property.
Like a Will, a Living Trust is also a document that describes how you wish your estate to be distributed upon your death, but a Living Trust avoids probate as long as your assets are titled in the name of the trust. If you choose to have a Living Trust instead of a Will (Living Trusts tend to be a little more expensive), it is also wise to have a pour over Will written just to ensure that no property gets forgotten.
For married couples, a Will or Living Trust is important to have, especially in SC. With either of these documents you can direct your property to go to whom you want it to. Most married couples elect to have most, if not all, of their property go to their surviving spouse upon death. SC law dictates that the surviving spouse may not have a right to all of the property.
In SC specifically, if someone with children dies without a Will or Living Trust in place, half of the property will go to the surviving spouse and the other half will go to the children. This scenario can be troublesome, especially if there are children who are younger than 18 years old. The court will appoint a conservator to distribute that half of the property to the children over time as the conservator sees fit. The conservator appointed will likely be the surviving spouse, but the surviving spouse will not have complete control over this property and may have to give an accounting of how the property was distributed or spent. This situation can be avoided completely by simply executing a Will or Living Trust.
Why Have a Durable Power of Attorney?
While a Will or Living Trust can direct how your property is distributed upon death, these devices have no power or effect until that time. Thus, having a Durable Power of Attorney (DPOA) is a wise choice.
A DPOA is a document that allows an agent to act on behalf of the principal with regard to the handling of assets such as money or property. This document can take effect immediately or after some event, such as incapacity (no longer able to act for oneself).
For married couples, a DPOA can allow each spouse to be the other’s principal and/or agent to have access and control over the other spouse’s accounts and property. Spouses do NOT have a right to access the other spouse’s individual accounts; without a DPOA, a spouse will not be able to have access to do simple things like withdrawing or depositing money into a checking account. For example, if one spouse becomes incapacitated, the other spouse will not be able to have access to his/her individual financial accounts; this could be problematic if the other spouse does not have enough money in his/her joint or individual account to pay for an expense, such as an insurance deductible or mortgage payment. The DPOA can spell out specific powers each spouse can have to make it flexible to your specific situation. The DPOA can even name other agents to act on the principal’s behalf if any preceding agent is unable or unwilling to act.
Why Have a Health Care Power of Attorney?
A Health Care Power of Attorney (HCPOA) is a document that allows an agent to act on behalf of the principal with regard to making major medical decisions. Again, a Will or Living Trust does not take effect until death, so having an HCPOA is also a wise choice. The HCPOA will allow the agent to make any medical decisions (as spelled out in the document) for the principal if the principal becomes incapacitated or otherwise cannot make those decisions him/herself.
For married couples, an HCPOA also allows each spouse to be each other’s principal and agent. While spouses have some rights to make medical decisions for the other in SC, having an HCPOA will help in expediting health care decisions and will allow the health care provider to be reassured that the agent does in fact have the right to make those medical decisions. An HCPOA also allows for successor agents to be named who can make those decisions if a preceding agent is unable or unwilling to act.
Why Have a HIPAA Waiver?
HIPAA (Health Insurance Portability and Accountability Act) is a federal law that protects privacy rights for individuals’ medical records. Each person in the U.S. has a right to privacy when discussing medical records, and no one can see those documents unless that person has given someone permission to access those records.
While exceptions exist under medical emergencies, unless a HIPAA Waiver is executed, people who you may want to have access to your medical records will not be able to access that information, which may be important if you are unable to make those decisions yourself. Further, having this HIPAA Waiver will expedite the process of obtaining these records as the health care provider can be reassured that you have permission to access those records, and they will not have to worry about any possible fines or punishments for giving out information that may have been private.
For married couples, HIPAA Waivers can ensure that no roadblocks are involved when trying to obtain a spouse’s medical information. The information may be able to be obtained without a Waiver, but the Waiver can provide clarity and prompt appropriation. Further, the Waiver allows for people other than a spouse to obtain this information if wanted, such as friends and other family members.
Conclusion
In conclusion, the best way to properly plan for your future is to make sure you have the documents mentioned above in place before any unanticipated events may occur. At AVP Law, we are dedicated to preparing you and your family for life by making sure you have everything you need before something unexpected may happen to you or your family. Life is full of surprises, not all of which are good. Why worry about the future when you can live your life free from anxiety? When terrible times do come, you can rest assured that everything will be taken care of by choosing AVP Law for your Estate Planning needs.
Typically we urge people to go with our Will or Living Trust Package, which contains several documents including the Wills (or Living Trust and Pour Over Wills), Durable Powers of Attorney, Health Care Powers of Attorney, HIPAA Waivers, Burial Wishes, Guardianship Nomination Forms, and also a free initial consultation and then execution of the final documents. Go ahead and book your appointment today to allow us to walk with you through the short and painless process of forming an Estate Plan specific to your needs and desires. Book Now or visit our website for more information about our firm and practice areas here.
This article and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal advice on any legal matter. If you would like to hire us as your attorneys please call (864.301.9009) or email us (info@avplawfirm.com).
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