The novel coronavirus (COVID-19) pandemic has impacted all South Carolinians in a variety of different ways. From working overtime caring for sick patients to facing financial struggles due to layoffs and furloughs, and from homeschooling children to caring for aging loved ones, all South Carolina residents are facing unexpected – and often extremely difficult – challenges.
For many, the COVID-19 outbreak has also brought the importance of estate planning into sharp focus. Across the state, many families are coping with the loss of loved ones as a result of the virus as well. Whether you are thinking about the future or facing the probate process, it is important to make informed decisions. With this in mind, here are some key facts you should know:
Estate Planning Considerations for the COVID-19 Outbreak (and Beyond)
Statewide, more than 3,500 people have been diagnosed with COVID-19 (as of April 15). While this is a relatively small number when compared to the totals of other states across the country, this is still a significant number of people who are sick—many of whom need or have needed emergency care.
How does this relate to estate planning? In addition to deciding how you want your assets to be distributed after your death, the estate planning process also involves deciding who will make important decisions on your behalf should you become unable to do so. For example, if you are unresponsive while you are in the hospital due to an illness or injury, who will have the authority to communicate with your doctors and direct your care? Who will manage your finances? These are important questions; and, although we all hope that we will never need to answer them, it is crucial to have a plan in place in case we do.
While everyone’s personal estate planning goals are different, there are a few estate planning documents that can be utilized to meet a broad range of needs. In South Carolina, the documents that can be used to plan for unforeseen medical events include:
- Living Will – A living will is a legal document that provides specific guidance to your health care providers. It is also commonly known as an advice directive or health care directive. In South Carolina, living will address a number of specific issues, relating primarily to life-sustaining treatment and end-of-life care.
- Health Care Power of Attorney – A health care power of attorney is used to designate someone else who is authorized to make care-related decisions on your behalf. If you are unable to communicate but are not facing a life-threatening condition (or you do not have a living will), the person you designate will be able to ensure that your doctors provide care consistent with your personal beliefs and preferences.
- Durable Power of Attorney – A durable power of attorney is used to allow someone else to manage your finances during a period of incapacity. With regard to both health care powers of attorney and durable powers of attorney, the authority to act on your behalf only lasts for the period that you are incapacitated.
These, of course, are documents that most people will want to prepare in addition to their will and other estate planning tools. For married couples, it will generally make sense to plan together (and each spouse will need to know what the other decides), although a “joint” estate plan can create potential problems that most spouses will want to avoid. In all scenarios, it is important to talk to the individual(s) who you want to make decisions on your behalf and to make sure they know what to expect and what to do if and when it becomes necessary for them to step into your shoes.
Probate and Estate Administration
Coping with the unexpected loss of a loved one due to an illness is extraordinarily difficult, and taking steps to move forward amidst your grief can seem like an insurmountable burden. With regard to probate and estate administration, those who are involved in the process must work diligently to gain a comprehensive understanding of their obligations and to execute the terms of their loved ones’ estate plans consistent with South Carolina law.
If you have been named as a loved one’s personal representative or trustee, you will be primarily responsible for administering his or her final affairs. For personal representatives, this means initiating probate, managing the probate process, providing notice to creditors, and distributing estate assets pursuant to your loved one’s will and/or South Carolina’s laws of intestate succession. For trustees, this means administering the trust according to its terms, including managing and investing trust assets and overseeing distributions to trust beneficiaries. When performing these obligations, it is important to be aware of the legal risks involved, and it is highly recommended that you engage the services of an experienced South Carolina probate attorney.
For family members who are heirs, devisees, or beneficiaries, it is important to be patient, but it is also important to remain abreast of the personal representative’s or trustee’s activities. In certain circumstances, it may be necessary to seek to have a personal representative or trustee removed in order to protect the estate. However, there are other alternatives as well, and, ultimately, everyone’s goal should be to administer their loved one’s estate correctly and as efficiently as possible.
How have you been impacted by the novel coronavirus (COVID-19) outbreak in South Carolina? Do you have questions about creating (or updating) your estate plan? Have you recently lost a loved one? If you would like to discuss your situation with an attorney, please contact us today.
Contact Summerville, SC Estates and Trusts Lawyer Patrick R. Watts
Patrick R. Watts is a Summerville, SC estates and trusts lawyer who has been representing Lowcountry residents and families for more than 40 years. If you have questions about estate planning or estate administration, we invite you to call 843-851-7070 or send us a message online to schedule an initial confidential consultation.