Plan for the future.

At the Law Office of Russell D. Hilton, we not only want to help you plan for the disposition of your estate, but we also want to assist you with a complete package to prepare for the inevitable. No one wants to think about death and losing loved ones, but you also don’t want to leave a mess behind for your loved ones.

Every estate planning client is offered a package consisting of the following documents tailored to your specific desires.

• Last Will and Testament
• Declaration of a Desire to Die a Natural Death (“Living Will”)
• Health Care Power of Attorney
• Durable Financial Power of Attorney
• Legacy Packet

If you don’t have your estate documents in place, contact our office for a free consultation. We generally serve the areas of Moncks Corner, Summerville, Goose Creek, Ridgeville, Hanahan, Charleston, North Charleston, Berkeley, Dorchester, Orangeburg, Holly Hill and Santee.

The information below is designed to answer some of the most frequently asked questions about the basic documents and help you better understand the contents of each. Please understand that every document may not be correct for everyone’s situation, and that each person’s estate plan is different based on many factors. You should consult our office if there are any questions regarding your particular estate plan.

Most people know what a “Last Will and Testament” is, but many don’t know exactly what it does. A “Will” allows you, the “testator”, to direct how your property will be disposed upon your death. A Will is only effective upon death, and can (and should) be reviewed and modified throughout your lifetime.

“I’ve had my Will in place for 25 years.” Chances are, you’ve had children or grandchildren born, you’ve married, divorced, moved, or had other life-changing events that necessitate the updating of your Estate Plan. Your Will should be reviewed by a competent professional at least every 5 to 10 years and when any of the following occur:

• Change in marital status
• Death of a family member
• Birth or adoption of a new child
• Purchase of a major asset
• Declining health
• Substantial change in net assets
• Significant tax law changes

Having a valid Will doesn’t eliminate the necessity for the estate to be probated. It does, however, make for a more certain and easier process. A valid Will also gives you peace-of-mind knowing that you get to decide how your property will be distributed. A person who dies “intestate” (without a Will) leaves it to state probate laws to determine who will inherit their property.

In a Living Will, you are able to express your desires regarding life prolonging procedures in the event you have a “terminal condition.” A terminal condition is one that is incurable and irreversible such that death is imminent, and certain medical procedures would only prolong the dying process.

This document is essentially a “declaration” (set of instructions) to your doctor whereby he or she will know your desires should you be unable to communicate them. A Living Will does not apply if you have a non-terminal health issue. (See Health Care Power of Attorney.) As with any of the Life Planning documents, the Living Will can be changed or revoked at any time. There are specific procedures, however, so make sure you consult with our office prior to making changes.

The Health Care Power of Attorney is a “durable” document meaning that it remains in effect at such point in time when you are unable to make decisions because of incapacity. This document allows a person that you choose to make health care decisions as you would be able to make them for yourself if you were able. As long as you are mentally capable of making health care decisions, you will continue to direct your health care. At such time when you are unable to make informed decisions, your named agent will make decisions for you regarding your health care and treatment. While the Living Will also has directives regarding care and treatment, remember that it only becomes effective upon terminal illness.

Like the Health Care Power of Attorney, the “Durable Financial Power of Attorney”, also known as a “Durable General Power of Attorney”, remains in effect after you are no longer mentally competent to make decisions on your own. This Power of Attorney is very broad and allows the agent general access to all of your finances. This document, unlike the others, can take effect immediately and is recorded with the Register of Deeds in the county where you live.

Executing a durable power of attorney ensures that someone you trust (your “agent”) will be on hand to manage the many financial tasks that will arise if you become incapacitated. For example, bills must be paid, bank deposits must be made, and someone must handle insurance and benefits paperwork. In many cases, a durable power of attorney for finances is the best way to handle tasks like these.

If you don’t have a durable power of attorney and you become incapacitated, your family or other loved ones will have to petition a court to name a conservator to manage your financial affairs. Conservatorship or guardianship proceedings can be expensive and take time. An effective, properly executed durable power of attorney can eliminate this requirement.

You have to be careful in who you select as your agent. For a Durable Power of Attorney to have its full effect, the document should allow your named agent to sell property, draft funds from bank accounts, apply for credit in your name, etc. Your agent MUST be someone you trust with this very task.