There are many reasons why some people do not prepare a will:
- Belief that they don’t have sufficient assets;
- Belief that they are too expensive;
- Belief that jointly titling will handle distribution
In these cases, the law steps in with “default” laws that choose a Personal Representative for the deceased, as well as beneficiaries: who have priorities in inheriting amongst their surviving blood relatives?
What are the benefits of having a will?
- Waiving bond for personal representative
- The ability to lengthening the period of survivorship (see Section 62-2-104 period of survivorship required to inherit is 120 hours): Assume you are divorced and have a child. What happens if you die in a common accident with your child, who survives you by a week?
- Ability to name a Personal Representative
- Ability to state who will receive your assets upon passing
- Naming a Guardian for minor children
- Naming trustees to manage your estate for children or other persons who may need to have a trust imposed
- Omitting special needs persons to avoid their losing benefits
What happens when a person is unable to make medical decisions for themselves due to incapacity, whether from dementia or other illness/injury?
Advanced planning is crucial.
There are a few documents that one can sign while you are competent and able to make such decisions, called “advanced directives”, which allow a person to indicate what their desires are. This also spares their loved ones from having to make agonizing decisions during emotional times. The most common of these advanced directives are the Living Will (a/k/a “Declaration of Desire for Natural Death”) and the Health Care Power of Attorney (a broader document addressing more than just life support). Most hospitals have these forms, and they can also be obtained from the Commission on Aging. I do them free as part of the estate planning to ensure the client understands the form and that they are properly witnessed/signed.
The Living Will primarily addresses that the person does not want to be kept alive by life support, and addresses whether the person wants nutrition and hydration under two situations: one is if their condition is terminal and could result in death within a very short time, the other is if the person is in a permanent vegetative state.
The second most common document is a “Health Care Power of Attorney”. It basically allows a person to appoint someone to make decisions for them. It usually encompasses the terms of the Living Will, but is broader in that it does not only address life support and nutrition/hydration issues, but all medical decisions.
The S.C. Code also contains an Adult Health Care Consent Act at 44-66-10, providing by law the appointment of persons to make decisions for those who cannot express their desires concerning their health care and who did not already execute an “advanced directive”. First in line is a court-appointed Guardian if there is one; if not, then a person designated under a durable health care power, if one; then to a spouse, next to the person’s parents and adult children and so on.