Moving to South Carolina is an exciting new chapter whether you’re drawn by the Lowcountry’s beauty, the warm climate, or the slower pace. But with every life change comes important legal to dos. South Carolina has its own rules for estate planning, real estate, healthcare decisions, and probate, and understanding them can save your family confusion and stress down the road. 

Here are 7 essential legal must knows for anyone newly calling South Carolina “home”.

1. Update Your Will or Trust After Moving States

   One of the first steps after a big move is making sure your estate plan still works the way you intended. Wills and trusts drafted in another state may not be invalid, but they often don’t align with South Carolina’s probate laws. Small differences can cause delays later. Updating your plan ensures your wishes are honored smoothly and without further expense to your family.   

2. Understand How South Carolina Handles Property Ownership  

   If you purchased a home, how your property is titled matters. South Carolina recognizes several forms of ownership. The choice affects what happens automatically at death, what passes through probate, and how easily your heirs can inherit. Reviewing your deed with a professional is a simple step that can prevent major complications.  

3. Refresh Your Powers of Attorney and Healthcare Directives  

   Every state has its own requirements for legal decisionmakers. South Carolina’s Healthcare Power of Attorney and Durable Power of Attorney forms differ from those used elsewhere, and institutions here often prefer (or require) the local versions. Updating these documents ensures that the person you choose can step in quickly during a medical emergency or financial crisis without red tape.  

4. Know the Tax Differences for Retirees  

   Good news: South Carolina is known for being retireefriendly. New residents are often surprised to learn about available deductions for retirement income, Social Security benefits, and property tax exemptions. Understanding these rules early can help you plan wisely and maximize benefits now and in the future.  

5. Explore Local Aging & Care Resources  

   Bluffton and the surrounding Lowcountry communities offer strong support networks for seniors and caregivers. From local aging agencies to veteran services and memory care programs, knowing what’s available helps you plan confidently and proactively.  

6. Review Your Beneficiary Designations 

   Many people don’t realize that beneficiary designations on accounts like life insurance, retirement plans, and payable‑on‑death accounts override what’s written in a will. If you recently moved to South Carolina—or experienced other life changes such as marriage, divorce, or the loss of a loved one—this is the perfect time to review and update these designations. Making sure your beneficiaries are current prevents assets from accidentally going to the wrong person and helps your estate settle smoothly. 

7. Meet With a Trusted Elder Law Attorney  

   One of the most important steps you can take as a new South Carolina resident is meeting with a local elder law and estate planning attorney. A move is an important moment to ensure your planning still reflects your life, goals, and current state laws. A professional review helps confirm that your documents are up to date, coordinated, and aligned with both your long term wishes and South Carolina’s legal requirements. Connecting with a trusted local elder law attorney provides clarity, confidence, and peace of mind, so you and your family are well prepared for the future.  

Ready to take the next step?

Give us a call at 803.563.5163. We’re here to help and ready when you are.

For educational purposes only. This is not legal advice.

The One Big Beautiful Bill Act (OBBBA) was signed into law on July 4, 2025, making tax provisions that were scheduled to expire at the conclusion of 2025 permanent under the law. The OBBBA directly impacts your tax situation, your retirement, funding and paying for education, and your estate planning. Here are a few important provisions that may benefit you and your family.

What Might Affect Me?

•             Tax Brackets & Standard Deduction: The standard deduction for 2025 is $15,750 or $31,500 for single or joint filers.  For 2026, it is $16,100 or $32,200 for single or joint filers.

•             Estate & Gift Tax: Federal lifetime estate and gift tax exemption will remain the same rather than sunsetting at the end of 2025. Beginning in 2026 the federal estate, gift and generation-skipping (GST) tax exemption is set at $15 million per individual, with married couples eligible to combine their exemptions for a total of $30 million. If you previously did taxable estate planning and are below these new thresholds, you may consider revisiting your previous trust planning for smoother updates.

•             New Senior Deduction: If you are 65 or older from 2025-2028, you can deduct $6,000 or $12,000 for single or married taxpayers. This is in addition to the standard deduction. There is a phase out starting at $75,000 or $150,000 Modified Adjusted Gross Income (MAGI) for single or joint filers.

•             SALT Deduction: The State and Local Tax (SALT) deduction cap increases to $40,000 in 2025, with a 1% annual increase until 2029, reverting to $10,000 in 2030. If you're paying lots of state taxes, there may be a benefit to itemizing deductions, subject to MAGI limits.

•             New Trump Account: Newborns born between 2025 and 2028 can receive an initial $1,000 government contribution to start their savings journey. These funds are not accessible until age 18, but annual contributions of $5,000 are permitted without income requirements or phase out limitations.

•             Other OBBBA Considerations Include: Child Tax Credit, 529 Plan and ABLE-Account Enhancements, Charitable Giving, Qualified Opportunity Zones, Qualified Business Income Deduction, No Tax on Tips and Overtime (2025-2028), Student Loan changes, and Auto Loan Interest Deductions (2025-2028).

Why Planning Matters: You’re Not Alone

The good news? You don't have to navigate these changes by yourself. Partnering with qualified professionals in elder law and financial planning who stay current on tax law changes can help you feel confident about your estate planning and financial decisions to maximize your opportunities.

For educational purposes only. This is not legal advice.

During holiday visits, I often find myself quietly assessing:

Is my loved one’s home still safe? Are they still thriving? Do they have a plan for the future?

These observations aren’t about judgment—they’re about love and preparedness.

Home Environment: Is It Supporting Safe Aging?

As you walk through your loved one’s home, take note of a few key safety indicators:

• Are there loose rugs, cluttered pathways, or stairs that could become hazards?

• Do bathrooms have grab bars, a walk-in shower, or space for future modifications?

• Would the layout accommodate a walker, wheelchair, or other mobility aid if needed?

• How close is the home to essentials like grocery stores, pharmacies, and medical care? If they could no longer drive, would they still have access?

These small details often provide the first clues about whether someone can safely age in place.

Daily Living and Mobility: How Are They Moving Through Their Day?

Holiday gatherings provide a natural opportunity to quietly observe:

• Is their gait steady, or are they shuffling more?

• Are they holding onto furniture for support?

• Have they begun relying more on canes, walkers, or wheelchairs?

• Do they still appear to be showering regularly and caring for themselves?

• What does their refrigerator look like—balanced meals, mostly snacks, takeout, or not much food at all?

These patterns can indicate changes in physical ability or overall well-being.

Cognitive Changes: Are Conversations Different This Year?

Engage gently and pay attention to:

• Difficulty answering simple questions

• Repeating stories or asking the same question multiple times

• Confusion about time, place, or familiar details

• Delayed responses or mixing up facts

These signs can suggest that cognitive changes may be underway—and early awareness is key.

The Importance of Planning Together

When possible, weave soft, supportive questions into conversation:

• Do they know their wishes for future care?

• Do they have plans in place?

• Do they feel prepared, or do they need help getting started?

And ask yourself honestly:

What can your family reasonably handle if a crisis occurs?

Not everyone can become a full-time caregiver—but everyone can play a role in planning.

If You Notice Changes, It’s Time to Talk

Whether you discover:

• noticeable decline,

• a lack of planning altogether, or

• a binder full of documents that hasn’t been updated in years…

It’s time to plan—or revisit the plan.

Our loved ones deserve to age with dignity, safety, and support. And families deserve the peace of mind that comes from being prepared instead of reacting in crisis.

If you need guidance, support, or a place to start, our team at LawyerLisa is here to help.

Your estate plan isn’t just about what happens after you’re gone. It’s about protecting your well-being, your assets, and your loved ones throughout your lifetime. Health care costs can quickly derail even the most carefully crafted financial or estate plan if coverage gaps or unexpected out-of-pocket expenses arise. That’s why an annual Medicare review deserves a place on your planning checklist.

Health coverage affects financial stability.
Choosing the right Medicare plan—or failing to adjust an outdated one—can make a significant difference in your long-term finances. Prescription drug costs, copays, and coverage limitations can add up quickly. Reviewing your plan ensures you’re not paying for coverage you don’t need or missing benefits that could save you money. Those savings can be redirected to preserve your retirement income or strengthen your legacy goals.

Plans change—and so do your needs.
Each year, Medicare Advantage and prescription drug plans update their formularies, provider networks, and premiums. Meanwhile, your personal health or financial situation may have shifted. A new diagnosis, a move, or changes in income can all impact which plan best fits your needs. Regular reviews help ensure your coverage continues to support your broader estate plan, especially when medical expenses or long-term care costs are part of the picture.

Estate planning is about control.
The goal of estate planning is to make sure your wishes are followed and your loved ones are protected. A Medicare review aligns with that same principle of control—by ensuring your health care decisions are intentional, informed, and well-coordinated with your legal documents, such as powers of attorney and health care directives.

In short, Medicare reviews and estate planning go hand in hand. Together, they provide a proactive approach to maintaining both your health and your financial security. Check with your elder law attorney to see what Medicare review workshops or educational sessions they are holding this season—these events can be an excellent opportunity to get personalized guidance and make confident, informed choices. As open enrollment approaches, take time to sit down with your insurance provider to make sure your Medicare choices support your long-term plan—so you can focus on living well today and protecting your legacy for tomorrow.

Understanding Probate
Probate is the legal process through which a court oversees the administration of someone’s estate after they pass away. This includes validating a will, paying debts and taxes, and distributing assets to heirs. If you only own property in one state, probate typically occurs in the county where you lived at the time of your death.

Multiple Properties = Multiple Probates
When you pass away, your loved ones will need to handle your affairs in the state you primarily resided. If appropriate estate planning isn’t taken care of prior to your death, that will also mean probating of your estate in every additional state you owned property through processes known as “ancillary probate.”

For example, if you live in South Carolina but also own a vacation condo in Florida, your loved ones may have to open probate in both states. This can mean additional time, expense, and stress for your family.

Challenges of Ancillary Probate
Ancillary probate often requires:

• Hiring an attorney licensed in that state.

• Additional court filings and fees.

• More delays before heirs can receive property.

• Complicated rules, since each state has its own probate laws.

These extra layers can increase costs significantly and prolong the estate administration process, sometimes for many months or even years.

How to Avoid It
The good news is that with proper estate planning, you can often sidestep ancillary probate altogether. Strategies may include:

• Revocable Living Trust: Property in multiple states can be titled in the name of your trust, avoiding probate completely.

• Joint Ownership with Right of Survivorship: Property passes automatically to the surviving co-owner, though this may not always align with your broader plan.

• Transfer-on-Death Deeds (where allowed): Some states permit deeds that automatically transfer property upon death.

The Bottom Line
If you own property in more than one state, failing to plan can create headaches and unnecessary expenses for your loved ones. By working with an experienced estate planning attorney, you can structure ownership in a way that avoids multiple probates, keeps the process simple, and ensures your assets pass smoothly to the next generation.

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]]>What Happens to Probate If I Own Property in More Than One State?Caring for Aging ParentsLong Term Care PlanningEstate PlanningLisa Hostetler BrownFri, 29 Aug 2025 15:20:42 +0000https://lawyerlisa.com/blog/vehicle-tod5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:68b1c47116208710da8ffb1cAs of July 1, 2025, South Carolina residents have a new tool for estate planning—the ability to add a Transfer on Death (TOD) designation to their vehicle titles. This simple change can help families avoid probate and ensure a smoother transfer of ownership after death.

A TOD designation works much like a beneficiary designation on a bank account or life insurance policy. While you are living, you remain the full owner of your vehicle. Upon your death, ownership automatically transfers to the person or people you’ve named on the title—without the delays, costs, and complications of probate.

To set up a TOD designation on your vehicle, you must complete the TOD-1 form, which is available on the South Carolina DMV website. You’ll also need to submit a Form 400, your current title, and a $15 fee. Once processed, the DMV will issue a new title reflecting the TOD designation.

It’s important to note a few key rules:

• Only individuals—not businesses or trusts—can add TOD beneficiaries.

• All current owners of a vehicle must agree to the designation and sign the form. For example, if you and your spouse co-own the car, both must sign.

• Vehicles with outstanding loans or liens typically need to be paid off before adding a TOD designation, unless the lienholder agrees.

• Jointly owned vehicles must be titled with “or” between the owners’ names (creating a right of survivorship) in order to use TOD. If the title uses “and,” probate will still be required.

The person you name as your TOD beneficiary has no rights or control over the vehicle during your lifetime. Ownership only shifts upon your passing. If you name multiple beneficiaries, the DMV will title the vehicle jointly in their names with “and” as the connector—meaning if one passes away, their share will go through probate.

After your death, the beneficiary (or beneficiaries) must submit the title, a $15 fee, and your death certificate to the DMV to complete the transfer. If multiple owners are listed on the title, the transfer won’t occur until all owners are deceased.

This new law offers South Carolinians a straightforward way to ensure their vehicles pass smoothly to loved ones. However, it’s important to remember that vehicles are just one piece of your overall estate plan. Adding a TOD beneficiary may not be the best option in every situation, especially if there are multiple heirs, complex family dynamics, or larger assets to consider. Consulting with an experienced elder law attorney can help you determine whether a TOD designation fits into your broader estate planning goals and ensure that your plan works seamlessly to protect your family and your wishes.

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]]>What Does the New Vehicle TOD Law Mean for My Estate Plan in South Carolina?Caring for Aging ParentsLong Term Care PlanningEstate PlanningLisa Hostetler BrownThu, 03 Jul 2025 14:18:38 +0000https://lawyerlisa.com/blog/incapacity-planning5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:6866900f625a22175d577943In 2022, the world learned that actor Bruce Willis had been diagnosed with aphasia, a condition that affects speech and language. A year later, his family shared that his condition had progressed to frontotemporal dementia (FTD), a rare brain disorder that impacts behavior, communication, and decision-making.

Willis’ diagnosis was heartbreaking—but it also serves as a powerful reminder that incapacity can strike anyone at any time. Planning for it isn’t just smart—it’s one of the most compassionate things you can do for your loved ones.

What Is Incapacity Planning?

Bruce Willis’ diagnosis highlights the importance of planning for the possibility of incapacity. No one expects to lose the ability to make their own decisions, but conditions like dementia, strokes, or traumatic brain injuries can strip people of that ability. Incapacity planning ensures that if you become unable to make financial or medical decisions for yourself due to illness or injury, your wishes are honored and your loved ones aren’t left overwhelmed or conflicted.

It includes legal documents that fall into two main categories: financial and medical.

Financial Documents

• Durable Financial Power of Attorney: Appoints someone to handle your financial matters if you become incapacitated.

• Revocable Living Trust: Helps manage your assets and avoid court involvement if you can no longer do so yourself.

Medical Documents

• Living Will: States your preferences for medical treatment in situations like terminal illness or permanent unconsciousness.

• Health Care Power of Attorney: Appoints someone you trust to make medical decisions on your behalf.

• Do Not Resuscitate (DNR)/Do Not Intubate (DNI): Specifies your preferences for emergency interventions like CPR or ventilator use.

• HIPAA Release: Gives chosen individuals access to your medical information when needed.

Having these documents in place reduces uncertainty during emotional moments and prevents confusion, guilt, or disagreements among family members.

A Lesson in Preparedness

While Bruce Willis’ family hasn’t shared his planning details, their unified response suggests they were prepared. Their example shows the importance of making these decisions ahead of time—when you still can.

Estate planning is more than a legal task—it’s a way to show love and respect for your family. Talk with your loved ones about your wishes, and then work with your elder law attorney to put those wishes in writing.

Because when the unexpected happens, the greatest gift you can give your family isn’t just your guidance—it’s a plan that speaks for you when you no longer can.

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]]>How Can I Protect My Family If I’m Diagnosed with Dementia?Caring for Aging ParentsLong Term Care PlanningEstate PlanningFinancialLisa Hostetler BrownFri, 20 Jun 2025 17:23:44 +0000https://lawyerlisa.com/blog/information-needed5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:685596fb98efd36f7e46a355If you’ve decided to start your estate planning journey, congratulations—you’ve taken an important step toward protecting your future and your loved ones.

But as you begin the process, you might be surprised by how many questions your attorney asks. Why do they need to know so much? Isn’t a simple will enough?

Estate Planning Is More Than Just Documents

Many people come in thinking they just need a will, a power of attorney, or maybe a trust. But estate planning with an elder law focus isn’t just about preparing paperwork—it’s about designing a long-term strategy tailored to your life, your goals, and your family.

That’s why your attorney needs a complete picture:

• What assets do you have?

• Who depends on you—now or potentially in the future?

• What are your health concerns, personal values, or charitable wishes?

• How do you want to be cared for later in life?

These aren’t just questions—they’re the building blocks of a plan designed around you.

We Plan for the Long Game

The goal of comprehensive estate planning is to think beyond what you need right now and anticipate what you might need in 10, 20, or even 30 years.

Here’s why it matters:

• A basic will might work today, but it could cause complications later if your family or financial situation changes.

• If you own a business, you’ll need more than a simple plan to ensure it passes smoothly to the next generation.

• If you have a loved one with special needs, a standard inheritance could unintentionally do more harm than good.

• If you’re concerned about long-term care, we can help you plan strategies to protect your assets and options.

By understanding your full story, we can design a plan that works now and later—even if life throws curveballs.

It’s Not Just a Transaction—It’s a Relationship

Estate planning is not a one-size-fits-all process. We take the time to get to know you so that your plan reflects your unique situation. And as your life changes, your plan should evolve too. That’s why we aim to build a long-term relationship with our clients—not just prepare a set of documents and send you on your way.

Final Thoughts

So when your attorney asks detailed, even personal questions, it’s not about being nosy—it’s about being thorough. Your life isn’t generic, and your estate plan shouldn’t be either.

The better we understand your life, the better we can protect it.

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]]>Why Does My Estate Planning Attorney Need So Much Information?Caring for Aging ParentsLong Term Care PlanningEstate PlanningFinancialLisa Hostetler BrownFri, 06 Jun 2025 14:03:55 +0000https://lawyerlisa.com/blog/delayed-planning5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:6842f4667c131e069f56b696Don’t Wait: The Real Cost of Delaying Estate Planning

If you’ve been thinking about retirement, helping aging parents, or planning for the next phase of life, now is the time to make sure your own affairs are in order. One of the most overlooked—but most critical—steps is creating or updating your estate planning documents.

It’s easy to put it off. Life is busy, and you may feel healthy and capable. But waiting to take action can carry real, lasting consequences for you and your family.

A Family Left Guessing

Mark passed away unexpectedly after a brief illness. He had always said he would get a will and power of attorney “someday,” but never made it a priority. His loved ones were left scrambling to figure out what he would have wanted—without any legal authority to act on his behalf. It led to court delays, family conflict, and unnecessary stress during an already painful time.

Healthcare Decisions Without a Voice

Susan suffered a sudden medical emergency that left her unable to communicate. Without a healthcare directive or appointed proxy, her family struggled to make decisions. Because she wasn’t legally prepared, the hospital had to follow default protocols that didn’t reflect her personal values. The emotional toll was enormous—and avoidable.

When the State Decides for You

Without a will or trust in place, your estate is distributed according to state law—not your wishes. Long-term partners, stepchildren, or friends you consider family may not receive anything. We’ve seen people heartbroken to learn that their loved one’s assets were legally out of reach, all because the planning was never finalized.

Planning Ahead = Peace of Mind

Estate planning isn’t just about death—it’s about control, protection, and clarity during your lifetime and beyond. It allows you to:

• Choose who will make decisions if you can’t

• Avoid family disputes and legal delays

• Protect your assets and your legacy

• Ensure your healthcare and financial wishes are followed

The best time to plan is before a crisis, while you have the full ability to make thoughtful choices. Delaying only limits your options—and increases the risk that important decisions will be made by others.

Take the time now to create a plan that protects you and the people you care about. It’s one of the most important gifts you can give your family—and yourself.

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]]>Don’t Wait: The Real Cost of Delaying Estate PlanningCaring for Aging ParentsLong Term Care PlanningEstate PlanningFinancialLisa Hostetler BrownTue, 03 Jun 2025 13:09:01 +0000https://lawyerlisa.com/blog/annuities5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:683ef2b9e1607c0b048b04acAs an elder law attorney, one of the questions I often receive from clients planning for retirement or long-term care is about annuities—what they are, how they work, and whether they’re a good fit for their estate or Medicaid planning strategy.

An annuity is a financial product typically offered by insurance companies. In simple terms, you invest a lump sum or series of payments in exchange for regular income payments, either for a set period of years or for the rest of your life. There are different types of annuities: fixed, variable, and indexed. Each of these has their own structure and risk level.

From an elder law standpoint, annuities can serve a couple purposes. Retirees can use them to create a predictable stream of income, especially when they’re concerned about outliving their savings. For Medicaid planning, a specific, Medicaid-compliant annuity can help a healthy spouse retain income while allowing the other spouse to qualify for Medicaid benefits for long-term care. However, a Medicaid-compliant annuity must be structured very carefully to comply with Medicaid requirements.

Like any financial tool, using an annuity as part of your financial plan has its pros and cons.

Pros:

• Guaranteed income: Annuities can provide financial stability for individuals who worry about market volatility or running out of money in retirement.

• Customizable: You can tailor an annuity’s payout terms, whether you want income for life or over a specific number of years.

• Useful in Medicaid planning: When properly structured, annuities can help protect assets while helping an individual qualify for long-term care assistance.

Cons:

• Complexity: Many annuities have fine print, fees, and surrender charges that can be confusing or costly if not fully understood.

• Lack of liquidity: Once you invest in an annuity, accessing those funds early may come with penalties.

• Tax implications: Income from annuities is often taxable, and the growth is tax-deferred—not tax-free.

One often-overlooked aspect of annuities is how they fit into your overall estate plan. Annuities can avoid probate and pass directly to heirs when they are properly titled and designated to your beneficiaries. However, if not carefully coordinated with your will or trust, they can cause unintended tax burdens or distribution issues. That’s why it’s essential to ensure your annuity strategy is aligned with the rest of your estate plan.

Before purchasing an annuity, it’s crucial to review the details with both your financial advisor and an elder law attorney. What works well for one individual may not suit another’s goals, health, or financial picture.

In the right circumstances, annuities can be a valuable part of a comprehensive elder law plan—but like all tools, they need to be used wisely and with proper guidance.

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]]>Can Annuities Help with Long-Term Care Planning?Caring for Aging ParentsLong Term Care PlanningEstate PlanningLisa Hostetler BrownMon, 14 Apr 2025 17:16:46 +0000https://lawyerlisa.com/blog/capacity5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:67fd42471998bf0d276efbceWhat if the day comes when you or your spouse is no longer able to make decisions about your health, finances, or future? Whether due to illness, injury, or age, losing the ability to manage your affairs can happen unexpectedly. In estate planning, capacity is the key factor that determines whether you can create or update essential documents like a will or power of attorney. So, how do you know when it's too late to act, and what happens if you miss your chance? Let’s explore why planning ahead is the best way to protect yourself and your loved ones.

What is Capacity?

Capacity refers to the ability to understand and make decisions about your legal and financial matters. It's not an all-or-nothing concept. To create a valid will, for example, a person must have a clear understanding of their assets, the objects of their affections, and to whom they would like to leave those assets. Similarly, to designate a power of attorney, a person must be able to comprehend the authority they’re giving to someone else to act on their behalf.

How Do You Know When Capacity is an Issue?

It’s not always easy to recognize when capacity starts to decline. Signs like forgetfulness, confusion, or unusual decision-making can be indicators. Medical conditions such as Alzheimer’s disease or dementia can impair capacity, but even with these conditions, a person might still be able to create estate planning documents if their capacity is assessed by a qualified professional.

Capacity can vary by decision. A person may still be able to make some decisions, like choosing a healthcare provider, while struggling with others, such as creating a will. This is why it’s important to assess capacity for each decision separately.

What Happens if You Miss the Boat?

If a person loses capacity and hasn’t created key documents like a will or power of attorney, the consequences can be significant. Without a valid will, the state will decide how a person’s assets are distributed, which may not reflect their wishes. Additionally, without a power of attorney or healthcare directive, family members may need to go through a lengthy court process to have a guardian or conservator appointed to make decisions.

In addition to the legal and financial complications, missing the window to complete estate planning can create emotional stress and conflict among family members. Without clear documentation, disagreements may arise about who should make decisions or how assets should be handled. This can lead to prolonged legal battles, fractured relationships, and unintended outcomes. The court-appointed guardian may not be someone the individual would have chosen, and the delay in decision-making can negatively affect care and financial management. These situations are not only costly but can leave loved ones feeling helpless. That’s why timely action is critical to preserving both control and harmony.

Act Early to Protect Your Wishes

The best way to ensure your wishes are honored is to plan early, and working with an experienced elder law and estate planning attorney will help ensure your documents are in place. This proactive approach provides peace of mind for you and your loved ones – do don’t wait, or else it may be too late.

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]]>My Spouse is Starting to Forget Things. When Is It Too Late to Get Estate Planning Documents?Real EstateEstate PlanningLisa Hostetler BrownFri, 14 Mar 2025 16:01:04 +0000https://lawyerlisa.com/blog/deed-theft5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:67d44e39dec8f67a93568bebYou may have seen commercials for companies offering software services to monitor your property’s title for a monthly fee. While the idea may sound appealing, it’s important to understand that deed theft is uncommon. The risk of someone stealing your property is low, and even if such a crime were attempted, it is not likely to hold up legally.

What is Deed Theft?

The process of deed theft involves a criminal forging documents and filing them with the county clerk’s office, potentially allowing them to try selling, mortgaging, or renting your home without your knowledge. Even if a criminal attempts to file a forged deed, they would likely face significant obstacles like being unable to secure financing or title insurance. In South Carolina, a forged deed should not hold up in court, and the rightful owner should ultimately be able to reclaim their property.

How to Safeguard Your Property

While deed theft is unlikely, there are still steps you can take to protect your home. Keep a close eye on your bills, mail, and property tax notices for any unusual activity. If you’re away or have a second home, make sure the property is properly maintained, or ask someone you trust to check on it regularly. For properties in rapidly growing areas like Bluffton, Charleston, and Hilton Head, staying vigilant is particularly important, though the likelihood of property theft remains very low.

South Carolina Property Alert Services

A simple and effective way to monitor your property is by signing up for South Carolina’s free Property Alert services. Several counties offer this service, which notifies you if a document, such as a deed or mortgage, is filed under your name. If a fraudulent transaction occurs, you’ll be alerted immediately.

Consider a Trust for Extra Protection

Another possible layer of protection is placing your property in a trust. This makes it more difficult for criminals to gain access, as they would need to prove they have authority over the trust before taking any action.

Why Act Now?

While deed theft is highly unlikely, taking precautions like using Property Alert services and considering a trust can help keep your property safe. For more information on property protection or estate planning options in South Carolina, contact an elder law firm today. Safeguard your home, your assets, and your peace of mind for a secure future.

• Having an open, honest discussion with your loved ones about what you would prefer for your end-of-life care can be helpful in preparing for the unexpected.

Talking about death, especially one’s own death, remains a topic that most people avoid thinking about or openly discussing. However, avoiding conversations about death and end-of-life care can lead to discomfort, confusion, and unfulfilled wishes in the long run.

According to AARP, 85 percent of adults over the age of 45 say they’re comfortable discussing end-of-life issues but seven in 10 of them admit that the topic is generally avoided. By avoiding planning for end-of-life care and failing to discuss preferences with our loved ones, we do them a disservice. Without knowing our wishes, they will have to guess what our preferences are, and conflicting views may create unnecessary tension.

Whether you are in perfect health or facing a serious medical issue, discussing your wishes for end-of-life care and creating an estate plan to formalize those wishes can give you and your loved ones invaluable peace of mind now and for the years to come.

Why End-of-Life Conversations Are Important

Conversations about end-of-life care can provide you and your family with an opportunity to address wishes, values, and preferences related to medical care, financial matters, spiritual support, and legacy planning. They help reduce uncertainty and stress during emergencies and empower family members to make informed decisions.

For instance, discussing and formalizing your preferences for medical treatments can ensure that you receive the care you would want and remove the burden of those difficult choices from your loved ones. Doing this will reduce the chance of disagreements and conflict among your loved ones over the type of care and end-of-life treatments you receive.

When to Have the Conversation

It’s never too early to begin discussing end-of-life care. Ideally, these conversations should occur long before a crisis arises. Here are some key milestones when these discussions should take place:

• Early Adulthood: Once an individual reaches adulthood, they should consider creating basic legal documents such as a health care directive, which can include a living will and a health care power of attorney.

• Major Life Events: Marriage, parenthood, retirement, or a significant medical diagnosis can be appropriate times to reassess and document end-of-life preferences.

• Chronic Illness Diagnosis: A long-term health condition often prompts deeper discussions about future care.

• Aging Parents or Loved Ones: When supporting aging relatives, you want to make space to discuss their care preferences and estate plans. This can serve as a segue to talking about your own preferences as well.

Preparing for the Conversation

There are different ways to make end-of-life decisions and to discuss those decisions with loved ones. Before broaching the subject with loved ones, you may find it helpful to consider your preferences and jot them down. Here are some things to consider when starting your list of topics to discuss.

Health Care Decisions

Take some time to think about which medical treatments you would and wouldn’t want if the occasion for them should arise.

• Would you want to be kept alive artificially for as long as possible?

• Would you rather forgo treatments for a terminal illness or injury if they are proving ineffective?

• Where would you prefer to spend the last weeks or days of your life? In a hospital? In your home?

These are questions your loved ones should know the answers to in case you ever become unable to communicate with them. By completing a living will, you can put these wishes in writing and make them official.

Your Health Care Agent

Choosing a health care agent (as well as backups) is an important part of the end-of-life planning process. Choose people who know you and are familiar with your values and health care wishes. Make sure they would be willing to carry out your wishes regardless of what other family members may say.

Memorial Wishes

Write down any wishes you have for arrangements after you die. Decide what you want to happen to your body after you are deceased. If you want your body cremated, specify what you want to happen to the ashes.

Decide what type of funeral service or celebration of life you would want. Some people give specific instructions for their service – from what colors their loved ones might wear to what music to play.

Overcoming Barriers to the Conversation

Many people hesitate to discuss end-of-life care due to fear, discomfort, or cultural taboos. To overcome these barriers, you can:

• Acknowledge the Difficulty: Recognize that these conversations are challenging but emphasize their importance.

• Focus on Benefits: Highlight the peace of mind and clarity these discussions provide.

• Share Personal Stories: Relate experiences where planning helped or where the lack of planning caused difficulties.

• Seek Professional Help: Enlist the guidance of a counselor, mediator, or estate planning attorney if needed.

How to Start the Conversation

Approaching end-of-life care discussions requires sensitivity, preparation, and an understanding of your preferences, as well as the emotional readiness of your loved ones. Here are some ideas to help you navigate these conversations effectively:

• Choose the Right Time and Setting: Select a quiet, private space and a time when everyone involved can participate without distractions. Avoid rushed or stressful environments. Perhaps someone you and your family know has recently gone through a situation that raises these questions, and you can use that as a jumping-off point for the conversation.

• Express Intentions Clearly: Start the conversation with an honest explanation of your goals. For example, “I want to make sure we understand each other’s wishes and views and are prepared for the future.”

• Ask Open-Ended Questions: Encourage dialogue by asking thoughtful questions, such as how your loved ones feel about life-sustaining treatments and palliative care. Ask them to describe what matters most to them and what their ideal day would be like. Some people would like to spend as much as time as possible with their family; others might want nothing more than to be able to enjoy a bowl of ice cream with a book or while watching television. There are no wrong answers.

• Be an Active Listener: Allow your loved ones to share their thoughts and feelings without interruption or fear of judgment. Validate their emotions and acknowledge their perspectives.

• Use Resources for Guidance: Leverage conversation guides and other tools from organizations such as The Conversation Project or National Hospice and Palliative Care Organization.

• Follow Up: End-of-life care discussions are ongoing. Revisit the conversation periodically to update plans as circumstances or preferences change.

Topics to Address

There are a few topics that should be central to discussions about end-of-life care. Being clear about your health care preferences, such as treatment options, palliative care, hospice, resuscitation, and pain management, will alleviate confusion down the road.

You may also wish to discuss preferences for spiritual rituals or support if this is important to you or your loved one. For instance, would you want a member of the clergy involved at the end of your life in some way? Would you want to consider working with a death doula?

Expressing your wishes for where you would ideally like to live during the last part of your life will help your loved ones make the necessary decisions if you are ever unable to make them. Discussing the cost of end-of-life care and after-death expenses will help both processes go more smoothly, too. Sharing your personal values with your loved ones can be a guide if they need to make decisions on your behalf.

Next Steps in End-of-Life Care Planning

It is never too early in your adult life to start your end-of-life planning or to talk about it with your loved ones. Make life easier for your loved ones by starting the process sooner rather than later. LawyerLisa can guide you through the process and create an estate plan that works for your unique needs and wishes.

• A transfer-on-death (TOD) account may be a simple and straightforward way for you to pass your wealth or property on to your loved ones after your death.

• TOD accounts can help your loved ones receive your financial assets upon your death without having to go through the court.

What Is a TOD Account?

When considering how to pass your assets on to the next generation or other beneficiaries, you have many options. One tool in your estate planning toolkit is the transfer-on-death account.

Transfer-on-death (TOD) accounts allow account owners to designate beneficiaries who will automatically inherit the account’s assets upon the owner’s death. These accounts can apply to various types of financial assets, such as bank accounts, brokerage accounts, and even some real estate, depending on state laws. At this time, TOD deeds for real estate are not an option in South Carolina.

By sidestepping the court process known as probate, TOD accounts offer an efficient way to pass assets to loved ones or charities. However, they are not suitable for all situations. Knowing when and how to use a transfer-on-death account can help your assets get to your beneficiaries in a timely manner.

When a TOD Account Can Be Beneficial

TOD accounts can be useful for numerous reasons. Here are some scenarios to consider.

Avoiding Probate

One of the primary advantages of TOD accounts is that they bypass the probate process, which can be time-consuming, expensive, and public. The assets in a TOD account transfer directly to the designated beneficiaries, often within weeks, reducing administrative delays. Because probate proceedings are public record, this keeps the transfer private.

Cost-Effective Estate Planning

Setting up a TOD account typically involves minimal cost, making it a more affordable option than creating a trust. This can be particularly advantageous for individuals with smaller estates.

Simplicity in Asset Transfer

TOD accounts are straightforward to set up and administer. The account owner simply names beneficiaries, who then receive the assets after the account owner dies – without having to go through additional paperwork or court intervention.

Flexibility During the Owner’s Lifetime

The account owner retains full control of the assets during their lifetime and can change or remove beneficiaries at any time without the beneficiaries’ consent.

When a TOD Account May Not Be Beneficial

Though TOD accounts can be useful in many situations, there are times when they may not provide the best solution. Consider the following scenarios and see if any apply to your situation.

Complex Family Dynamics

In families with complicated relationships, TOD accounts can lead to disputes. For example, if beneficiaries are not equally named or if some family members are left out entirely, conflicts may arise.

Inadequate Estate Planning for Large Estates

For individuals with substantial assets or complex estates, TOD accounts may not address all planning needs. They do not provide tax advantages or the level of control over asset distribution that a trust might.

Lack of Contingency Planning

Though TOD accounts allow for primary beneficiaries, they may not always offer robust options for contingent beneficiaries. If the named beneficiary predeceases the account owner and no alternates are listed, the assets could end up in probate. Also, TOD accounts do not address the possibility of the beneficiary becoming incapacitated or disabled.

Potential for Unintended Consequences

Life events, such as divorce or estrangement, can render a TOD designation outdated. If account owners forget to update beneficiaries, assets might go to unintended recipients.

Not Suitable for Minors

If the named beneficiary of a TOD account is a minor, they cannot legally manage the inherited assets until reaching adulthood. This situation often necessitates the appointment of a conservator or the creation of a trust, complicating the transfer process.

Creditors’ Claims

Beneficiaries of TOD accounts are not shielded from creditors. If the beneficiary has significant debts, creditors may claim the inherited assets to settle outstanding liabilities.

Considerations When Using TOD Accounts

Though TOD accounts are relatively simple and straightforward, there are some things you should keep in mind when employing them.

Review and Update Regularly

Periodically review your beneficiary designations, especially after major life events such as marriage, divorce, the birth of children, or the death of a beneficiary.

Coordination With Other Estate Planning Tools

Ensure TOD accounts align with your overall estate plan to avoid conflicts between documents like wills and trusts.

Beneficiaries With Disabilities

For individuals with disabilities who are receiving government benefits, being the beneficiary of a TOD account could cause them to lose their benefits. Other estate planning tools, such as a special needs trust, may be necessary in such a situation.

Understand State Laws

Regulations governing TOD accounts vary by state, particularly for real estate. Consult an estate planning attorney near you to ensure compliance.

Setting Up a TOD Account

Designating an account or other asset as a transfer-on-death account is relatively simple. Here are the steps that generally need to be taken:

• Determine eligibility. TOD designations are often available for financial accounts such as brokerage accounts, individual retirement accounts (IRAs), savings accounts, and even certain types of real estate (depending on the state).

• Choose a beneficiary. Decide whom you want to name as the beneficiary. Some accounts allow multiple beneficiaries with specific percentages assigned to each.

• Contact the financial institution. Reach out to the bank, credit union, or brokerage firm where the account is held. Request the necessary forms to add a TOD designation.

• Complete the TOD form. Fill out the form provided by the institution. Some institutions may require notarization or witnesses.

• Verify state laws. Check whether your state supports TOD designations for all account types. Some states have restrictions or require specific registration (e.g., for real estate through a transfer-on-death deed).

• Update beneficiary information. Periodically review and update beneficiary designations, especially after major life events, such as marriage, divorce, or the death of a beneficiary.

Getting More Help With TOD Accounts

If you need specific advice or assistance, consulting with LawyerLisa can help ensure your TOD designations align with your overall estate plan.

• Legislation signed in January 2025 seeks to secure better access to home- and community-based care for military veterans.

• The bipartisan Dole Act also focuses on coordinating assistance for family caregivers of veterans.

On January 2, 2025, the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act was signed into law. The legislation represents a significant step forward in supporting the needs of veterans, their families, and their caregivers.

Named in honor of former United States Senator Elizabeth Dole, a longtime advocate for military families, the law represents a significant advancement in the services and support provided to U.S. veterans. Through the Department of Veterans Affairs (VA), this new legislation aims to enhance veterans’ access to home and community-based services (HCBS). The Act also recognizes the critical role that caregivers play in ensuring the well-being of veterans and seeks to provide them with better support and resources.

Expansion of Home and Community-Based Services

The Act requires the VA to increase access to HCBS for eligible veterans, enabling them to receive care in their own homes or communities rather than institutional settings. Before this law passed, a veteran could receive HCBS only if those services did not exceed 65 percent of the cost they would be if administered in a VA nursing home.

Under the new law, veterans can receive HCBS if the cost is equal to the cost of receiving the same care in a VA nursing home. The VA can also allow home and community-based services that exceed the cost of VA nursing home services if the VA determines that paying the higher cost is in the best interest of the veteran.

HCBS can include personal care, homemaker services, adult day health care, respite care, and other services.

Support for Caregivers

In addition, the Elizabeth Dole Act will provide enhanced training and education programs for caregivers of veterans. Such programs will seek to help them manage the unique challenges of caring for this population. The legislation also will make more veterans and their families eligible for the VA’s Program of Comprehensive Assistance for Family Caregivers.

Pilot Programs and Innovation

The law calls for the development of various pilot programs, including one focused on exploring innovative HCBS models that provide homemaker and home health care services to veterans who live in communities with a shortage of home health aides. Recognizing the importance of a skilled workforce, the Act provides funding for training programs to increase the availability of home health aides and other professionals specializing in veteran care.

Addressing Challenges for Veterans and Caregivers

Veterans often face unique health challenges, including physical disabilities, post-traumatic stress disorder (PTSD), and chronic illnesses. These conditions can make daily living tasks difficult, increasing reliance on caregivers. For many veterans, caregivers are loved ones who often sacrifice their own well-being and financial stability to provide care. By strengthening HCBS and caregiver support, the Elizabeth Dole Act addresses both veteran-specific health needs and the burdens placed on caregivers.

Other Benefits of the Legislation

The law’s emphasis on home-based care aligns with veterans’ preferences to age in place and maintain their independence. By reducing the reliance on institutional care, the legislation also has the potential to lower overall health care costs. Furthermore, the Act’s focus on caregiver support may help improve the mental and physical health of those providing care, ultimately benefiting veterans by ensuring consistent and high-quality assistance.

“The Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act will better support veterans, caregivers, and survivors by improving access to VA health care and benefits, expanding long-term care programs, strengthening programs for student veterans and military family members, and more,” said U.S. Senator Jerry Moran, a sponsor of the bill.

Learn More About Benefits for Veterans

Many benefits are available for veterans, although navigating the different benefit systems can be confusing. LawyerLisa's Life Care Planning team can guide you through available options and ensure you receive the benefits to which you are entitled.

Preventing Falls

Snow and ice can make outdoor areas dangerously slippery. Falls are a significant risk for older adults and can result in serious injuries. Here are some ways to reduce the risk of falling:

• Wear Proper Footwear: Wear shoes or boots with good traction and nonslip soles to provide more stability on icy or wet surfaces. Choose waterproof footwear to keep feet dry and warm.

• Use Assistive Devices: Canes and walkers can help with balance. For added safety in slippery conditions, attach an ice tip to the end of the cane or walker supports.

• Walk Carefully: When walking outdoors, take small, slow steps, and try to keep your center of gravity directly over your feet. Avoid rushing or carrying too many items that could throw off your balance.

• Keep Walkways Clear: If possible, enlist help from family or neighbors to keep your sidewalks, driveway, and porch free of snow and ice. Use ice melt or sand for added traction.

• Install Handrails: Handrails on steps and pathways can provide added support, especially in icy conditions.

Driving Safely

Winter roads can be hazardous due to snow, ice, and reduced visibility. Older adults should take extra precautions when driving during winter weather. Here are some tips for driving safely during the winter:

• Check the Weather: Avoid driving in severe winter storms. Check the forecast before planning trips and postpone any non-essential travel if conditions are poor.

• Prepare Your Car: Get your vehicle winter-ready; keep tires in good condition, top off antifreeze, and have a full gas tank. Consider keeping emergency supplies in the car, such as blankets, a flashlight, extra gloves, and nonperishable snacks.

• Drive Slowly: Reduce speed on icy or snowy roads and increase the distance between your car and the vehicle in front of you. Use headlights to improve visibility.

• Avoid Distractions: Stay focused on the road. Keep your hands on the wheel, eyes on the road, and avoid phone use or other distractions.

• Consider Alternatives: If winter driving feels too risky, consider alternative options. Ask a family member for help, take public transportation, or use a rideshare service.

Heating a Home Safely

Heating a home during winter is essential, but it’s important to avoid potential hazards, such as carbon monoxide poisoning or accidental fires. Here are some tips to keep your home warm and safe:

• Use Space Heaters with Caution: If you’re using space heaters, keep them at least three feet away from flammable objects, such as curtains or bedding, and always turn them off when leaving the room or going to sleep.

• Install Carbon Monoxide Detectors: Heating systems, especially those that burn gas, oil, or coal, can produce carbon monoxide. Install detectors in key areas of your home and test them regularly.

• Avoid Using Stoves or Ovens for Heat: Using a stove or oven as a heat source is dangerous and increases the risk of carbon monoxide poisoning.

• Check the Heating System: Have a professional inspect and service your heating system before winter. Ensuring it’s working efficiently can reduce the risk of breakdowns or safety issues.

• Layer Up: Wear warm clothing indoors, such as sweaters, thermal layers, and warm socks. This allows you to keep the thermostat lower, saving on heating costs.

Getting Appropriate Vaccinations

Winter is peak season for illnesses, such as influenza and pneumonia, which can be more severe for older adults. Keeping up with vaccinations can help protect you from seasonal illnesses.

• Flu Vaccine: The flu virus circulates more widely during winter. An annual flu shot is recommended for everyone, especially older adults, as it can reduce the severity and risk of complications from the flu.

• COVID-19 Vaccine: Staying current with COVID-19 vaccinations, including any recommended boosters, can provide additional protection during winter months when respiratory illnesses are more prevalent.

• Pneumonia Vaccine: Pneumonia can be life-threatening for older adults. Talk to your health care provider about getting a pneumonia vaccine, especially if you have chronic conditions that may increase your risk.

• RSV Vaccine: Respiratory Syncytial Virus (RSV) can cause severe respiratory infections. Discuss the newly available RSV vaccine with your health care provider.

Planning for a Safe Winter

By taking precautions, you can stay safe and comfortable throughout the winter season. Remember to keep emergency contacts on hand and communicate regularly with family and friends so they can assist if you need help. Stay warm, stay safe, and make the most of the winter months!

The holiday season offers the chance to spend time with family and discuss long-term care options and estate planning. Though these topics may seem uncomfortable at first, the sooner they are addressed, the sooner a thoughtful plan can be put in place. Working with LawyerLisa's Life Care Planning team can help make the process easier. They can discuss options that will best meet your unique needs.

Estate and Financial Planning: The Impact of Tax and Inheritance Laws

Changes in both estate and tax laws can significantly affect how your assets are distributed and the amount of taxes your beneficiaries may owe. In South Carolina, there is no state-level estate tax, but federal law changes, such as adjustments to estate tax exemptions or gift tax rules, can still impact your plans. Recent federal tax reforms, for example, raised the estate tax exemption limit, allowing individuals to pass on larger estates without incurring federal estate taxes. However, if you haven’t updated your will, trust, or other estate planning documents recently, your plan might not reflect these changes. Regularly reviewing your estate and financial plans with an elder law attorney ensures that you’re optimizing your strategies for the future and making the most of current laws.

Healthcare: Navigating Medicaid and Long-Term Care Planning

For many seniors, healthcare and long-term care planning are top priorities. Legal changes, particularly regarding Medicaid, can significantly impact your access to necessary healthcare services, such as nursing home care, in-home care, or assisted living. Medicaid eligibility rules in South Carolina are complex and can change frequently, especially regarding asset limits and income guidelines.

For instance, South Carolina recently made adjustments to Medicaid’s eligibility criteria, affecting how seniors qualify for long-term care assistance. Without proper planning, these changes could result in disqualification or unnecessary financial burdens. An elder law attorney specializing in Medicaid planning can help you protect your assets while ensuring you meet eligibility requirements for long-term care coverage.

Conclusion: Proactive Planning Is Key

In a world of shifting laws, regular consultations with an elder law attorney are essential for ensuring your legal, financial, and healthcare plans are aligned with current regulations. A proactive approach ensures that your estate and financial plans are optimized. By staying informed and working with a professional, you can help safeguard your legacy, secure your financial future, and ensure that your healthcare needs are addressed.

As we age, thoughtful planning becomes essential to ensure that our future is secure and our hard-earned assets are protected. Many seniors worry about the consequences of dying without an estate plan, but an even more pressing issue is aging without a comprehensive safety net. Without proper planning, you could face significant challenges and stress during your later years.

One of the most significant concerns is the lack of a safety net as you age. Without a clear estate plan, you might find yourself unprepared for unexpected health changes or the need for long-term care. This lack of preparation can lead to difficult decisions for your loved ones and potentially compromise your quality of life.

 Proper estate planning isn’t just about what happens after you’re gone; it’s also about ensuring that you have the support you need while you’re still here. Effective planning using life care planning strategies can make a considerable difference in your access to care. For instance, an Elder Care Coordinator at an elder law firm that focuses on Life Care Planning could help you secure options for free in-home care should you need assistance with daily activities. They can evaluate your home for safety, connect you to social and support activities to fill a needed emotional connection. They can guide you through choosing the right care partners or finding a senior living community if staying home is no longer an option. This can be a game-changer, allowing you to have someone supporting you step by step as life happens and care needs change.

 Moreover, estate planning plays a critical role in protecting your assets. If you ever require nursing home care, the costs can be astronomical. Medicaid, which provides assistance for long-term care, has stringent eligibility requirements, and without proper planning, you might find yourself struggling to qualify. By planning ahead, you can take steps to preserve your assets while ensuring you meet Medicaid’s criteria. This could mean the difference between having your assets protected and facing a substantial financial burden.

 Going to the right professional for your situation will be the difference between getting you to the 20-yard line vs getting that touchdown. You want someone who can deploy various strategies based on your goals and assets and how that fits into your estate plan.

 In essence, estate planning is about creating a roadmap for your future. It helps you ensure that your wishes are honored, provides clarity and support for your family, and safeguards your assets against unexpected costs. Don’t wait until it’s too late—start planning now to ensure that you have the protection and peace of mind you deserve as you navigate the later stages of life.

If it is likely that you will need Medicaid benefits to cover the costs of long term care or to provide for basic health care, it is important to know the qualification criteria and how to plan accordingly.  There are strategies that can be used to reduce countable resources, protect assets and speed up eligibility for Medicaid benefits.

Even if you are wealthy, you need to consider asset protection, how to minimize tax implications, and navigate complex legal and financial issues related to care. An elder law attorney can provide tailored strategies to preserve wealth while securing quality care and addressing potential estate planning concerns.

If you become incompetent, someone must handle your financial affairs and make personal care and health care decisions for you.  A Durable Power of Attorney and Healthcare Power of Attorney are the most important tools, and you would appoint an agent to act on your behalf and that agent will have the authority to make decisions for you.  However, if you become incapacitated without having appointed an agent under a Durable Power of Attorney, a Guardian and/or a Conservator may need to be appointed to make decisions for you by Order from the Probate Court. 

Like everyone else, you will also need a current Will or Revocable Trust to carry out how your estate will be distributed at your death in accordance with your wishes.  If you do not make your own decisions, the intestacy statute will dictate which of your heirs will inherit your assets and in what percentages.

Long term care planning should be proactive. Take the steps now to set yourself up for success later. We can help you later, but it will be harder, longer and more expensive.  This is definitely not “old people” stuff!  Now is the time to plan for your family.

 Easy ways to mess it all up:

•          Leaving money or property to minor children.  If you pass away while your kids are under 18, assets should go into a trust for their benefit.  This will keep your irresponsible ex from getting appointed to manage the money until they turn 18.  Putting the money in a trust will also protect the kids from themselves.  What is 18-year-old Johnny going to spend $50,000 on?  How much will he put away for a rainy day?  A minor trust can include provisions that allow for needed distributions now, but keep the money safe until Johnny is old enough to know better.

•          Not funding your estate plan.  I see it all the time.  Clients come in with their fancy estate plans leaving everything to their 3 children.  Love and share alike.  After we chat a bit, I learn that they have added financially responsible Haley to all of their bank accounts.  Do they think Haley will get her one-third share?  Yes.  Is that what will happen?  No.  Haley will likely get all the money in those joint bank accounts AND one-third of everything else.  Who is the favorite child now?

•          Thinking that your family will start getting along if something happens to you.  Classic amnesia.  You forget about last Thanksgiving’s stand off and anticipate the family will sing “Kumbaya” at your bedside.  The surest way to diminish the chances of fighting and lawsuits is to leave specific instructions for your family.  This is done by executing documents that relate to your health and finances during your lifetime and your estate at death.  You can prevent them from fighting over daddy’s pistol by making sure it goes where it needs to.  Now is also the time to express your wishes about being hooked up to a ventilator, or what happens if you are permanently unconscious. 

 Now is the time to plan ahead.  Estate planning is best served proactively.  I can help you later, but it will be harder, longer and more expensive.  Don’t be fooled into thinking this is “old people stuff”.  Now is the time to establish a solid foundation.  Now is the time to put all your wishes down on paper.  Now is the time to plan for your family. 

People are often surprised when I tell them that their will is a ticket to court. The common misconception is that a will is all you need.  If you own, say a: house, car, bank account, some jewelry, and guns, and you are planning for your will to control their disposition, you may be unintentionally creating more work, more expense, and more drama for your loved ones. 

 Assets that aren’t owned jointly with another person and don’t have a beneficiary designation become probate assets when the owner dies.  In South Carolina, when someone passes away, if they don’t have a will, their probate assets go through the court process (which normally takes about a year) and are distributed to their heirs.  Your heirs are who the state of South Carolina says they are.  Right now, and very simplistically, the law says it’s your spouse and kids.  If none, then your parents.

 So why does this matter?  If you don’t want the state to decide by default who is in charge and who gets your stuff, then a will gives you some ability to state your wishes. The problem is there are a plethora of ways in which your intentions can be thwarted.  Even a quick reading of the general provision that probate assets pass according to a person’s will should be enough to make to make anyone skeptical. The person named as the Executor, now called a Personal Representative, must be appointed by the court, qualify, and be issued letters. Potential creditors of the decedent are given ample opportunity to present claims against the estate. Heirs who are supposed to receive nothing are nonetheless given notice of the will and an opportunity to get involved.

 This is why a “will” isn’t good enough.  Contrast jumping through all the probate hoops with quick, efficient, and thoughtful administration under a trust. Assets that are properly titled in a trust prior to a person’s passing will COMPLETELY AVOID PROBATE. Trusts can have creditor protection. Trusts can protect assets for people with special needs.  Trusts can hold and use assets for minors. Trusts can be used to avoid probate in multiple counties or states. Trusts can significantly shorten the administration timeline.  And the list goes on and on.

 So what’s the catch?  A well-crafted estate plan centers around the “plan”. Trusts are just a tool to make things easier and more efficient, but the pieces of legal paper mean very little if there isn’t a comprehensive plan making it all work.

Probate is a court-supervised process that is required after the death of an individual who owns probate assets.  A Will provides instructions for how probate assets should be distributed.  If you are planning to use a Will at your death, that means your family will have to go to court.  If a deceased person doesn’t have a Will, probate assets will still be distributed through the probate process, but state law (and the Judge!) will decide who receives those assets and who will be responsible for managing the estate.  The probate process generally takes a year or more to complete after death and requires the filing of a significant amount of paperwork with the Probate Court.  This includes, but is not limited to, notifying state law beneficiaries (think next of kin), and filing the Will (if there is one), a probate application, an inventory of the deceased person’s assets, a general publication of notice to potential creditors, an accounting of estate transactions, and more.  There will also be court fees which must be paid, and, depending on the circumstances, court hearings may be necessary to resolve various issues.

The probate process is only required when there are probate assets to be distributed.  This means that non-probate assets do not go through the probate process.  Skilled elder law attorneys design a plan for their clients that completely avoids probate court.  By creating a plan that utilizes various techniques and strategies, assets can pass much easier and more efficiently.  Trusts can be used to move and protect assets.  An irrevocable trust may be used to avoid probate, maintain legal residency tax discounts, and protect a home from Medicaid estate recovery.

In the majority of cases, it is better to move assets into a trust than to add a family member directly to an asset.  While adding a family member may avoid probate (if the asset has the proper survivorship titling), it can cause unintended consequences.  One issue that arises is that when you add someone to your asset, they now have a current, lifetime interest in it.  If you add a family member to your home, they can prevent you from selling it or mortgaging it.  If it is sold, they are entitled by law to their share of the proceeds.  This can cause disastrous consequences for some families.  Adding family members to assets during lifetime can also trigger gift tax concerns and can be considered gifts for Medicaid purposes.  Again, this has had disastrous effects for many families.  There is also the potential for a recently added family member’s personal problems to affect the asset.  If the family member has creditors or goes through a divorce, the asset could be implicated.  A trust can be utilized to maximize benefits and minimize the potential issues.

Trusts allow Settlors (the persons who create the trust) to create ongoing rules, requirements, and stipulations which will dictate a beneficiary’s access to trust assets.  While the probate process ultimately results in a final outright distribution of assets to the intended recipient under the Will, trusts can exist for many years and can set forth numerous rules and requirements that the Trustee follows during the term of the trust.  The possibilities are practically endless, so Settlors are able customize their trusts in ways that align with their values and will be most beneficial for each beneficiary.  For example, a Settlor may decide to hold funds in trust for a child who is too young to be responsible with a large sum of money, or the Settlor may opt for a longer trust term to protect assets from the spouse of a beneficiary in case of divorce.

A comprehensive elder law plan that includes a thoughtful combination of trusts and asset titling can avoid the hassle and risks of probate.  If you are interested in avoiding probate for the ones you love, reach out to a qualified elder law attorney for a consultation.  Don’t leave your family in a bind, plan ahead now!

Understanding Elder Law:

Elder law is a branch of legal practice that focuses on the specific needs of older individuals. CELAs are well-versed in a variety of legal areas that directly impact seniors.

Estate Planning and Elder Law

Estate planning is an essential part of being prepared for the future, going beyond simply creating a will. CELAs can assist in crafting a comprehensive estate plan that considers the unique issues facing the aging population. Estate planning seen from the perspective of a CELA is an opportunity to head off a number of common issues—like problems with mental capacity and paying for long term care. This may involve establishing trusts, assigning powers of attorney, and developing strategies to minimize tax implications.

Life Care Planning

As healthcare continues to advance, more of us will live longer and require long term care. CELAs help families navigate the complex landscape of long-term care options, including nursing homes, assisted living, and in-home care. They also provide guidance on qualifying for Medicaid benefits, VA benefits, and protecting assets to ensure that the cost of long-term care does not deplete a lifetime of savings.

Guardianship and Decision-Making

In many cases, seniors will face health problems that compromise their ability to make sound decisions. CELAs prepare powers of attorney that can be relied upon to have the powers your agents will need to engage in asset protection and public benefits planning if you become incapacitated. If someone who has become incapacitated does not have a power of attorney, a CELA can assist in the court proceedings, where a person asks the probate court to appoint them as a guardian or conservator for someone else who does not have legal capacity in order to protect the interests of the incapacitated.

Medicaid Planning

Medicaid is a vital resource for many seniors, providing financial assistance for long-term care medical expenses. However, navigating the complex eligibility requirements is challenging. CELAs understand the intricacies of Medicaid planning and help individuals and families structure their assets in a way that preserves eligibility and safeguards the financial well-being of the sick person and the sick person’s family.

Peace of Mind for Seniors and Their Families

Engaging a CELA offers more than just legal expertise—it provides peace of mind for both seniors and their families. Knowing that a well-thought-out plan is in place for the future alleviates stress and uncertainty. Planning allows seniors to age with dignity, independence, and the assurance that their wishes will be respected. Investing time and resources in proactive future planning with the guidance of these experts can make a significant difference in quality of life during the later stages of your journey.

What Is a Life Estate?

In a life estate, two or more people each have an ownership interest in a property, but for different periods. The person holding the life estate – the life tenant – possesses the property during their life. The other owner – the remainderman – has a current ownership interest. Yet they cannot take possession until the death of the life estate holder.

Benefits of a Life Estate Deed

The life tenant has full control of the property during their lifetime. They also have the legal responsibility to maintain the property and the right to use it, rent it out, and make improvements to it. Life estate deeds permit parents to pass ownership of their homes to their children while retaining absolute possession of the property during their lives. By executing a life estate deed, the property would avoid probate at the parents' deaths. A life estate deed also protects the property from a Medicaid lien and receives a step-up in tax basis, but this strategy only works if the transfer is outside of the Medicaid lookback period, and there are other issues and risks to consider.

Potential Issues and Risks

Be sure you have a handle on the myriad of potential issues that may arise with life estates. The following are examples of the possible risks or downsides you should understand:

Selling or Mortgaging the Property

As a life tenant, you may not easily sell or mortgage property with a life estate interest. The remaindermen must all agree if you decide you want to sell or borrow against the property. If the property is sold, the remaindermen are entitled to a share of the proceeds equal to what their interest is determined to be at that time.

Removing a Remainderman

It is not as easy to remove or change a name once it is on a deed to real estate as it is to change the beneficiary on a life insurance policy or bank account. Once a remainderman is named on the deed to your house, they have an interest in the home, and their legal problems could become yours. For example, if your child, who is a remainderman, is sued or owes taxes, a lien could be filed against your home.

Protecting the Remaindermen

Again, you may wish to make your child a remainderman in your life estate deed. However, be sure to consider the following: Their interest in the home is not protected if they file for bankruptcy. If your child gets a divorce, their spouse could claim all or part of your child’s interest in your home. Should your child die before you do, the child’s estate would have to go through probate unless at least one other remainderman was listed as a joint tenant. Note that while these claims may be made against the property, no one can kick you out of it during your life.

Qualifying for Medicaid

Giving away an interest in property could disqualify you from receiving assistance from Medicaid should you require long-term care within five years of the transfer. Often life estate deeds are signed without any thought about the need for Medicaid, and these deeds can practically be difficult to reverse, especially when a remainderman dies or has an uncooperative spouse. In addition, if you and the remaindermen were to sell the property while you were in a nursing home, the state could have a claim against your share of the proceeds for payments it has made on your behalf. (The share of the proceeds allocated to your children would be protected.)

Consult With an Elder Law Attorney

As with most planning tools, a life estate can prove useful and have several valuable benefits, but it is often not the best solution. In many cases, the potential problems can outweigh the benefits. As the law in this area is complex, it’s important to talk to a lawyer who has extensive knowledge in this area. Talk with your team at LawyerLisa about the best way to transfer your home to your heirs at your death.

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]]>Considering a Life Estate? Understand the Potential ProblemsCaring for Aging ParentsLisa Hostetler BrownWed, 03 Apr 2024 14:39:48 +0000https://lawyerlisa.com/blog/elderlawlessonslearned5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:660d68629984ea46e5d22838Q: My loved one was just diagnosed with Alzheimer’s and I am overwhelmed with all that we are facing now. Where do we even begin?

A: This is everyone’s worst nightmare! But, do not fret; we have a solution for you. First and foremost you need a plan, a life care plan, that starts with a legal and financial foundation that will provide for peace of mind as you begin the journey with your loved one. Ensuring that you have all of your basic estate planning documents in place (Financial Power of Attorney, Health Care Power of Attorney, Will/Trust, HIPAA Authorization form) is the first step to safeguarding the wishes of the unwell loved one.

Simultaneously, you can seek the support of an Elder Care Coordinator (ECC) who will use their experience and expertise as a nurse, social worker or geriatric care manager to help them guide you with a comprehensive approach to developing a care plan for your loved one through assessment, education, coordination and advocacy.  They take all the numerous options out there and boil them down to the top choices based on consultation with you on your goals and preferences as well as their own knowledge of industry resources and relationships.

As a supportive and knowledgeable professional your ECC will coordinate your care by referring you to qualified local care providers, facilities, counselors and support groups. The ECC will advocate for your care needs so you can remain in your home as long as possible. By personally visiting the home, they are able to assess safety issues and recommend solutions like transportation programs and stay up to date on technology to improve quality of life. They identify quality and cost of resources in the community allowing you to make better decisions. When remaining in your home is no longer an option, your ECC will attend care plan meetings and be a zealous advocate for your loved one to ensure the best possible care in the most appropriate environment. Your ECC keeps you informed on patient’s rights, responsibilities of care needs, and what to expect from care providers or when a new level of care is needed, like end-of-life care.

We know that changes occur and when they do your ECC will collaborate with the Life Care Planning team to revise your plan and to assure that your loved one receives the quality of care they deserve through all stages of aging. The nature of aging can be complex, but when you have a team supporting you that can pivot your plan as life unfolds and guide you through optimal options, the journey becomes lighter. The dedicated ECC is what sets apart Life Care Planning and Elder Law firms from other solutions.

The information contained in this article is for general educational purposes only and should not be relied upon without a specific review of your particular situation.  It is not legal advice.  If you would like legal advice on this topic, please schedule a consultation with our office by calling 803-563-5163 or by emailing info@LawyerLisa.com.  Lisa Hostetler Brown is a Certified Elder Law Attorney certified by the National Elder Law Foundation.  7511 Saint Andrews Road, Suite 3, Irmo, SC 29063

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]]>Elder Law Lessons Learned - Navigating a New DiagnosisEstate PlanningLong Term Care PlanningCaring for Aging ParentsSpecial NeedsLisa Hostetler BrownFri, 15 Mar 2024 16:54:41 +0000https://lawyerlisa.com/blog/sportstalkradio-trusts5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:65f47bcbe74b252ab0a517a2When we talk about trusts, we talk about having a plan- what is going to happen in your life- out of the blue or after aging takes place? Do I have things set up so that my family is not overwhelmed by the details? Make sure your family is taken care of with a gameplan ahead of time. The legal document should correspond to your plan.

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]]>Lisa Hostetler BrownEveryone Needs a Game PlanWhen we talk about trusts, we talk about having a plan- what is going to happen in your life- out of the blue or after aging takes place? Do I have things set up so that my family is not overwhelmed by the details? Make sure your family is taken care of with a gameplan ahead of time. The legal document should correspond to your plan. falseSports Talk Radio Interview- Why are Trusts important?Sports Talk Radio Interview- Why are Trusts important?Estate PlanningLong Term Care PlanningCaring for Aging ParentsLisa Hostetler BrownMon, 19 Jun 2023 19:59:03 +0000https://lawyerlisa.com/blog/2023/june/ask-the-expert-lawyerlisa-talks-elder-law-kw7c2-zwkck5325cd83e4b057c7f6c54fd4:54359abce4b0a0801c68f1f3:6490b25fd158267ec7eccc1bAsk the Expert: LawyerLisa talks Elder Law

Question: My spouse is sick and is starting to need a lot of care.  We can’t afford the cost of my spouse’s care forever, and I’m worried that one day soon we will run out of money. I’ve heard that I either need to become impoverished or divorce my spouse in order to get Medicaid to pay for care. Do we have any other options?

Answer: There are many options.  Unfortunately, there are very few professionals well-versed in what all the options are and which are best for your particular situation.  It’s important to make sure you find an advisor who knows the intricacies of how to maximize this benefit.

Depending on the extent of your assets and your monthly income, one plan may be preferable to another.  For example: if your sick spouse has a high monthly income and your income is much less, we can reallocate some of the higher income to you.  We can do the same thing with assets, moving them around to maximize what you can keep.  Some assets are exempt.  If you are taking your yearly required minimum distributions (RMDs) from your IRA, you may be able to keep that entire account in addition to the other funds Medicaid allows you to keep.  For some families, the well spouse is actually put in a better financial position because they are no longer paying any out of pocket care costs.

Getting divorced is rarely the best answer.  Families throughout South Carolina utilize the assistance of a Life Care Planning firm to help them develop the plan that is best for them to preserve income and assets for the well spouse as well as obtain the best option for care of the sick spouse.

If you are concerned that you don’t know all of your options or that you are spending down all of your savings and shouldn’t be, the life care planning team at LawyerLisa is available to consult with you on your particular situation.

Just remember, the longer you wait to have a long term care plan, the less money you are able to save.  For many people, their biggest mistake is waiting too long to implement a plan to protect their savings.

No one should attempt to navigate the Medicaid maze alone.  Get a team behind you that can support you and your family.

If you would like to learn more about emergency asset preservation techniques or pre-emergency Medicaid or benefits planning, visit our website at www.lawyerlisa.com/lcp.  If you are ready to schedule a meeting to see how much money you can protect, give us a call at 803.563.5163 or email info@lawyerlisa.com.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

Q: I am a mother, daughter, full time employee, wife, and more. I am pulled in a million different directions trying to take care of my own family, and now my parents are having health issues and need care of their own. It’s a constant worry for me and I know I need help figuring out how best to manage it, but where do I start?

A: First, take a deep breath. You have taken the first leap of faith and are asking for help. There are a lot of options and great planning techniques that can be utilized to ensure the proper care for your parents without it being an extra burden on your family. Many families utilize the assistance of Elder Care Coordinators through a Life Care Planning firm to help them navigate the challenges of caring for aging family members.  Think of them as trusted allies who know what to expect down the road. Juggling all the important roles you play in your life is no small feat. Working in cooperation with an Elder Care Coordinator can ease some or all of the burden and give you peace of mind for the future.

An Elder Care Coordinator (“ECC”) is a trained professional with a non-legal background that works in conjunction with a legal team.  They are great at filling the gaps that are left by traditional estate planning and elder law.  While the legal team addresses issues such as designing the best advance directives and making sure the general durable power of attorney has the necessary powers, an ECC wants to know what keeps you up at night, and their focus is on helping to resolve that concern.

Is your loved one in the hospital or been recently discharged?

Has your loved one had some close calls at home?

Is there a diagnosis of dementia or do you see signs of dementia worsening?

Does your loved one need some extra help with showering? Cooking? Taking medicine?

Are you concerned their money will run out?

An ECC addresses a wide range of concerns that a lawyer alone may not.  Life Care Planning firms develop a Life Care Plan that walks clients through keeping their loved one safe, connecting them to appropriate resources, creating a long-term legal plan, and having a financial plan to pay for the cost of care for the family member’s entire lifetime.

If the goal is for mom or dad to stay at home, an ECC will evaluate their home and make safety recommendations on changes or suggest vetted professionals to make whatever modifications are needed. If they need to move to a facility, an ECC will help you find the right facility and help manage the logistics of that transition. If part of the Life Care Plan involves applying for Medicaid, an ECC will help navigate the application process and track the progress. The list of things an ECC can help with is vast. An ECC is also there to support the caregiver. We all know that without you, the plan doesn’t work as anticipated, so your health and well-being is just as important. Are you going on vacation and need someone to check in on your loved one? Do you need to get tapped into a support group? Do you need validation that you are doing everything possible to take care of your family? An ECC does all of that, too.

Remember, the most gifted leaders know they can’t do it all alone. Get a team behind you that can support you and your family.

If you would like to learn more about how an ECC can support you and your family, visit our website at www.LawyerLisa.com/lcp. If you are ready to schedule a meeting to see how this assistance would apply to your unique circumstances, give us a call at 803.563.5163 or email info@LawyerLisa.com. We are here when you need us.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

In this April’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones can make estate planning mistakes that could have easily been avoided.

Concern: My mom got her Will on the Internet. Is she really protected?

Expert Advice:  Let me explain through a cautionary tale. 

You can have crappy estate planning documents you got off the internet and think you’re all set. It’s after you’re dead that the problems start. Litigation is the only solution.

Right now, I'm tens of thousands of dollars into an estate litigation case that is a classic story of what can go wrong when you get documents online.

A woman (let’s call her Aunt Betty) thought she needed a Will, so she asked a friend (I’ll call him Jim) to create one for her. Based on what we can tell, Jim went online and found a Will, printed it out, and then filled it out for Aunt Betty, who signed it. 

After Aunt Betty died, everyone in the family started scrutinizing this Will. When a person has a Will and somebody doesn't like it, the first thing they're going to ask is, "Which lawyer witnessed this Will?” which will make it much easier to attack the person’s competency. Nobody thinks about this when they’re getting documents from the internet. Aunt Betty certainly wasn’t thinking about it.

If a lawyer isn't the witness on a document prepared by a lawyer, everyone's going to say, "This is suspicious." Now, all the things that people can possibly fight about in a Will contest situation are in play, including duress, undue influence, and lack of capacity, not to mention the unauthorized practice of law by Jim, who has now died.

Choosing the right witness is a big deal. If I have a client whose Will gets challenged, I'm their witness. When it comes to choosing a witness for a Will, there is no better choice than someone who practices elder law, somebody who evaluates people every day about their capacity and their competency to sign legal documents. If you want your Will to stand up under scrutiny, an elder law attorney as your witness is your best choice--better than a general practice lawyer, and a thousand times better than Aunt Betty’s friend, Jim.

In addition to the question about whether Aunt Betty was competent to sign her Will, there is also a problem with the Will’s residuary clause, which covers anything that isn't specifically listed in the Will. If a Will is missing a residuary clause, any assets not specifically mentioned in the Will have to pass through intestacy. The residuary clause is often missing in Wills you get online. Some general practice attorneys even forget to put it in.

In this case, the family members that would inherit by intestacy are the ones challenging the validity of Aunt Betty’s Will. It’s a complicated situation that could have been avoided had they met with an elder law attorney who understood exactly how to help Aunt Betty meet her goals.

Working with the right attorney makes a big difference. A man with several life insurance policies totaling around $1 million brought me his Will, which had been prepared by a general practice attorney. The Will left the $1 million life insurance payouts to ten people, each of whom would get $100,000. I dug a little deeper and discovered that each life insurance policy had a beneficiary—and the beneficiaries named on the life insurance policies were not the people named in the Will. This man’s bequests were doomed to fail. This rookie mistake made by an untrained, unspecialized document drafter would have caused no end of trouble for those left behind.

My advice? Don’t get your Will on the internet. Get it from an elder law attorney. Your family will thank you after you’re gone.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

In this March’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze by comparing the benefits of a will versus a trust.

Concern: I have a will, but I’ve heard that I might really need a trust.  How do I figure out what is best for me?

Expert Advice:  Let’s start with what these documents are and how they work. 

Your will is a legal document that is submitted to the Probate Court after you pass away, along with the required Court documentation, requesting appointment of the person you name as your Personal Representative.  The Judge will ultimately decide who actually gets appointed over your estate, the compensation they may receive, whether creditors are entitled to be paid from your estate, how long the Personal Representative has to wait to distribute assets and how that distribution is to occur.  The Court will also mandate the publication of notice of your death in the newspaper calling for anyone who may have a claim against you to file it.  All of the paperwork that your Personal Representative files with the Probate Court will become part of the public record and can be researched by anyone who is interested in learning about your family, your assets, what your will said, and how distributions are made from your estate.

Your trust is a living document that you can create and implement while you are alive that will hold your assets.  For this type of trust (a revocable living trust), you are the Trustee and you control all of the assets and can do what you want with them.  If you become sick or incapacitated, your Successor Trustee can step in and easily manage your affairs and pay for the things you need.  When you pass away, your Successor Trustee can get immediate access to your assets to pay for any immediate expenses (such as your funeral) and can pay for ongoing expenses (such as your mortgage) during the administration of the trust.

One of the big benefits of having a trust is that your surviving family members will not have to go through the probate process when you pass away.  If you are married and create a trust now, not only will your surviving spouse not have to go through the probate process when you pass away, but when they pass away, your children or other beneficiaries will also get to avoid it.

Probate can sometimes bring out the worst in families.  As an experienced probate litigation attorney, I have seen so many families fight each other during the probate court process.  The fact is, it’s so much easier to fight each other when there is a will that is being probated.  They are already in Court!  The process is long; it can be complicated; everyone may not understand what all the forms are; many times there are forms sent to various family members to sign that need explanation from their own lawyer.  All of this can lead family members to feel like they need to protect themselves, which often leads to multiple lawyers doing what they do…advocating for their client at the expense of a complication-free process and sometimes also at the expense of your wishes.

Wills are more like a request to the Probate Court and current Judge to appoint someone you desire to have your assets distributed in the way you specified.  The entire administration process is still based on what the laws require to be done and how each Judge would like documents to be filed.  A trust is quite the opposite.  You have lots of options for how to set up what you want to happen and when.  A trust is administered without Court involvement.  Your Successor Trustee will not have to ask for permission to carry out your wishes that you have indicated in the Trust.  And, best of all, the various court forms that have to be completed and filed are eliminated.  The list of trust benefits is quite long and will be different for each person, based on their particular situation.

Don’t want your nosey Aunt to know how much money you had?  Get a trust.

Don’t want your children who live out of state to have to jump through hoops with the local Probate Court?  Get a trust.

Own multiple properties, especially in different counties or state?  (Each county will require a separate probate filing)  Get a trust.

Don’t want to chance your ex-spouse controlling money you leave to your children?  Get a trust and name your own trustee over those assets.

Don’t want scammers visiting your surviving spouse because they know about a large inheritance?  Get a trust.

Want to keep assets you own private?  Guns, gold, jewelry?  Get a trust.

Remember, everyone’s situation is unique.  You will need to utilize the plan that is best for you and your family.  But one thing is true for everyone, having a plan (and a trust) in place before you need it can make a world of difference.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

In this February’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze.

Concern: My family member is not competent, but I need to help them with their finances. What are my options?

Expert Advice:  This is one area where planning ahead before there are health issues pays dividends.  If your family member was smart enough to find a skilled elder law attorney to prepare a durable power of attorney for them, you may not have much to worry about.  A power of attorney that addresses elder law concerns and needs will provide you all the authority you need not only to pay their bills and manage their finances, but also to plan ahead to preserve and protect their assets.  If your family member has a basic power of attorney, you may have some ability to manage their finances, but not the ability to strategically engage in asset preservation or Medicaid asset protection. 

If your family member did not create a durable power of attorney while they were competent to do so, you will likely need to file a Conservatorship action in Probate Court.  This process will give you restrictive access to their funds either through a bonded account or through a restricted account that requires Court authorization for each dollar you spend.  If you need to sell an asset, such as a parcel of land, you will need to file a Petition to Sell Real Estate and comply with all of the Court requirements for notice, valuation, and accounting.  The Court process to appoint a Conservator usually takes several months if it is uncontested and there are quite a few extra costs you as the Petitioner will be required to pay.  Once appointed, there is very strict oversight by the Court.

The bottom line is that if your family member is willing and able to do planning in advance of becoming incompetent, it can be a big saver of time, money, and extra work.

Concern: I know I need to create or update my estate planning documents, but I don’t know who to choose as my agent or agents.

Expert Advice:  Choosing the right agent to serve for you in the event you cannot make decisions for yourself can be a daunting, but very important decision.  First of all, it is important to pick agents and back-up agents.  I normally recommend having 3 named in your documents. 

For health care agents, remember that this person decides where you will live and who may visit you.  They also make important end of life decisions related to extending your life through artificial measures.  Your health care agent will act if you are unable to competently communicate your wishes.  It is a good idea to communicate with your agent in advance and let them know what your desires are for end of life care.

Financial agents, such as an agent under a durable power of attorney or a successor trustee of a trust will be responsible for your bills and finances to varying degrees.  The agent you choose should be someone who is financially responsible and is not experiencing their own financial issues, such as bankruptcy, divorce, or unemployment.  This is a role where birth order may not be the best indicator!  If you don’t have a trusted family member to serve in this role or enough back up agents, there are other options to consider to avoid a Conservatorship action down the road.

Remember, each situation is unique.  You will need to utilize the plan that is best for you and your family.  But one thing is true for everyone -  having a plan in place before you need it can make a world of difference.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

In this month’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze.

Concern: I’m worried my parents might not be able to afford to pay for the care they need. What should I do?

Expert Advice: It’s important to understand that there are a variety of options when planning for long term care costs. The biggest factor, aside from how much money they actually have, is how far in advance you plan. Families who create a long-term care plan well in advance of when they need it generally have the most options and save the most money. In the alternative, those who engage in crisis planning have way fewer options available to them and generally are not able to keep the extra resources that the planners do. As a general rule of thumb, a meeting with an elder law attorney is best scheduled at least 5 years before skilled care becomes necessary. This means scheduling a check-up before your parents need assistance with their finances or living situation, before hospitalizations, and before any cognitive impairment interferes in their day-to-day activities. A comprehensive long term care plan will incorporate their specific assets, income, debts, physical and mental condition, and family dynamics to best plan for achieving their long-term care goals. Many families do not have the financial resources to pay the increasing cost of in-home caregivers or facility costs and could greatly benefit from a Medicaid spend-down plan. Medicaid planning is a very complex area of the law that if done correctly can result in saving hundreds of thousands of dollars while allowing the government to pay for the cost of skilled long-term care should it become necessary.

Remember, each situation is unique.  You will need to utilize the plan that is best for you and your family.  But one thing is true for everyone, having a plan in place before you need it can make a world of difference.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.

Let’s say that James passes away without a will and leaves behind a tract of land. No one ever opens up a probate estate for his property. Years later, one of his family members wants to sell the property, or timber it, or draw on the equity in the house, they may run into issues because they don’t have the legal authority to make any of these decisions.

When someone dies and leaves property behind that isn’t distributed through the probate process to their heirs, it remains “hung up” until probate is completed. If more than 10 years pass after a person dies, the land in their estate can no longer be probated. An action called a Petition to Determine Heirs must be filed. This is a formal proceeding to legally name the owners of the property and move it from the “hung up” status to be distributed to the proper family members.

If James passed away and had 4 adult children and now 2 of them are deceased, the surviving children will need to be named, along with the children of his deceased children (his grandchildren). If real property is not probated for many years, there may be grandchildren or even great-grandchildren that have to be named in the lawsuit!

Many people think that if they have been paying the taxes on heirs property for a number of years, that they have a superior claim to the property over the other family members, but this is just not the case. The property must be distributed either through the probate estate or the Petition to Determine Heirs and the legal heirs will have to be named.

So, when is the best time to deal with heirs property? The sooner the better! If you are paying the taxes on a parcel of property that is not in your name, schedule a consultation with us to see what your options are.

So, what does this mean to you?

Under South Carolina law (SC Code 62-2-502), a will must be:

1. In writing;

2. Signed by the person making it, known as the “Testator” (or signed by someone else in the Testator’s presence and at their direction); and

3. Signed by at least two people who witnessed the signing or the acknowledgement of the signature on the will by the Testator.

The Testator may leave a written statement disposing of their tangible personal property (not money or business property).  This written statement may be handwritten by the Testator or signed by the Testator.

So, under South Carolina law, Aretha Franklin’s handwritten wills would likely not be valid since they were not signed with two witnesses.  However, a personal property distribution in this format likely would be held valid.

The Lesson:

If you are considering executing a legal document to dispose of your assets at death, it is best to find a South Carolina licensed attorney who practices in the area of “Estate Planning” or “Wills and Trusts” to make sure your wishes are carried out after your passing.

For more information on our estate planning services, please visit https://www.LawyerLisa.com/estate-planning or call us at 803-563-5163

Unfortunately, many times, after the older or sicker family member can no longer competently explain their plans, someone will look for the supposed estate planning documents. Maybe a doctor is asking for a health care power of attorney, or there is an end of life situation requiring a living will or declaration of a desire for a natural death, or the person passes and assets need to be probated.  

Many people don't understand there is a difference between having the original will and merely presenting a copy of the will to probate. If you only have a copy, you have to file a formal petition and it will be more closely scrutinized and could be subject to dispute. There is an even bigger issue if you can't find a will or if they never had one executed. In this case, the assets may not pass the way the person wished, or the way the family thought they should.  

Confirming that proper estate planning has been done is important.  If you have questions about what documents your loved ones should have or if you'd like them reviewed, please contact us at www.LawyerLisa.com or at 803-563-5163.

For more information on how to set up an estate plan, please visit www.LawyerLisa.com/estate-planning

1.       Start or grow accounts in your name that you can get access to if needed, but that are good investments.  Using a ROTH IRA and a savings or investment account can help you have a safety net.

2.       Make sure you have updated Advance Directives.  If you have not updated your health care power of attorney, living will, and financial durable power of attorney to name the people you trust to make decisions for you, you are leaving your care and finances up for a potential court battle.  Outdated advance directives or lack thereof are key reasons why family or interested parties may have to resort to the probate court for legal proceedings.

3.       Make sure your immediate family members have their estate planning done.  Estate planning may include putting property into a trust to avoid probate, doing Medicaid planning in anticipation of the high costs of long term care for parents, setting up accounts to avoid fighting amongst siblings, planning around debt from an illness, and more.  If your immediate family members have their planning done the right way, it can save a lot of time, money, and conflict for you.

4.       If you are considering getting married and you have assets or plan to inherit assets, you can plan protection of your assets through the use of a prenuptial agreement, postnuptial agreement, or creative estate planning without spousal knowledge. 

5.       Plan for your long term care needs.  You need to think about how you will be cared for long after retirement.  What financial and family resources do you have available to you to provide you with care your entire lifetime?

6.       Always review contracts before signing them.  Many contracts are negotiable or can be modified.  If you are creating a contract or other legal document, get a lawyer to review it for you.  Landlords who have well-crafted leases are much more likely to have a favorable court ruling if they get into a dispute with their tenants than if they have a poorly drafted lease.

7.       If you are negotiating a deal where you are giving or loaning something to someone, make sure you get enough of a deposit or earnest money to offset your costs in enforcing the deal.  Your agreement should provide for you to be reimbursed for your costs and fees (including attorney fees), but if the other party doesn’t have enough money, you may not get anything, even if you win.  If you are holding money or an interest as security, you are much more likely to be reimbursed if the deal goes south.

8.       Structure any business interest you may own in a corporation, LLC, or partnership to protect your assets.  Explore ways to avoid losing your personal assets in the event of a business default or law suit.

The Estate and Gift Tax Exemption is $5,600,000 per individual and totals $11,200,000 with portability for a married couple.  

The Annual Gift Exclusion is $15,000 per person, other than gifts of future interests in property.

To read more from the IRS on the new amounts, check out https://www.irs.gov/pub/irs-drop/rp-17-58.pdf (gift exclusion found on page 20 – section .37; tax exemptions found on page 19 – section .35)

Parents also need to plan for their children with autism.  You can plan ahead for your child with a supplemental needs trust or testamentary trust, depending on your particular child.  Call LawyerLisa to see how we can help.
    
Source/more: WebMD and NAELA eBulletin

1. there is no agreement binding all the tenants regarding a partition of the property; AND

2. one or more of the tenants received title from a relative; AND

3. Either:

20% or more of the interests are held as cotenants by relatives; 

20% or more of the interests are held by an individual who received title from a relative; OR

20% or more of the cotenants are relatives.

Highlights:

The new law will apply unless all of the cotenants agree otherwise.

If the property is heirs' property, the court will determine the fair market value of the property by ordering an appraisal, unless all the cotenants agree on the value.

The property can be partitioned by sale (selling it and splitting the proceeds) or a cotenant can purchase another cotenant's portion (someone who requested the partition) for fair market value.

The full bill is available here.

This is a brief overview of some of the provisions of the new law, if you have questions, please contact our office at 803-563-5163 or at info@lawyerlisa.com