Yes, by law, you can draft your own will or trust in South Carolina. However, I strongly advise against doing so.
There are several reasons why it is a bad idea to simply draft you own will or trust. For one thing, in order for a will to be valid, it has to be notarized by a notary public and signed by two additional witnesses. Often, when people draft their own wills, they forget this part of the process and the will is not immediately valid.
Perhaps even more importantly, laypeople drafting their own wills and trusts are much more likely to leave out essential parts of the document. Just this week, I was handling a case where someone had written their own will but had left out a residuary clause, which is one of the most important parts of a will.
People who write their own trusts are even more at-risk of accidentally omitting something essential, as trusts have many crucial clauses and paragraphs that must be included for the document to be valid and thereby be able to protect the property and assets it holds from creditors and taxes.
Writing wills and trusts is a highly specialized professional skill, and it is generally quite rare for a layperson to draft their own will/trust and have the execution be exactly as intended.
What Should You Not Put into Trust?
There are several types of property and assets that you should not put into a trust, but the foremost among them are protected accounts. These include accounts like your 401(k), IRA, or employer-sponsored retirement account.
The reason you should keep protected accounts out of trusts is that taxes on that sort of account are delayed until you withdraw the money in the account. If you transfer those accounts to a trust before withdrawing the money, it acts as a distribution, and you’ll have to pay taxes on the entire amount immediately.
What Should I Do with Assets That Should Not or Will Not Go into a Will or a Trust?
The best thing to do for those types of assets is to designate a specific beneficiary for them. That beneficiary can be an individual or it can be a trust.
If all else fails, or if you do not want to designate a beneficiary for these assets (for whatever reason), you can always transfer them to whomever you desire while you are still alive. This will also help you avoid some taxes.
Can a Will be Changed Without the Executor Knowing?
Yes, wills can certainly be changed without the knowledge of the executor. The maker of the will can change it at any time, for any reason. No one else can change a will.
This does not mean that doing so is a good idea. In fact, it is usually not a good idea to change your will without letting your personal representative know, since this is very likely to confuse the execution process for the will when you pass away.
How Specific Does the Maker of a Trust or Will Need to be When it Comes to the Sources of the Money Left Behind?
The level of specificity required in a will or trust when it comes to where assets are kept depends on how a will or trust is drafted.
If you are giving all of your liquid assets to A, B and C in equal shares, nothing has to be specified when it comes to the location of those assets. The various institutions and banks where individual assets are contained will all combine their contents to be equally split, so specification about exactly which account each asset is stored in is unnecessary.
However, if you want to give specific people the assets contained in specific accounts (i.e., you want to give Person A the contents of the accounts in Bank C), then you would need to specify the bank, the specific location, and the account numbers for the transfer to be initiated.
What Happens if the Creator of a Will or Trust Didn’t Update Their Estate Planning Documents to Reflect Desired Changes or additions?
In these situations, the outcome depends on the wording of the will or trust.
When it comes to wills, every will should have a residuary clause, in part to address this scenario. A residuary clause is a sort of a catch-all that says, “If I haven’t given any particular things here, then they should go to Person X by the residuary clause.
Unfortunately, if there is no residuary clause and things are left out of the will, then those things have to be distributed by statute, as if there was no will at all.
In a trust, if you leave something out, it will go into a probate estate. It will then be distributed in accordance with a will (if you have one). In the absence of a will, items left out of a trust will also be distributed by statute, as if there was no trust to begin with.
What if a Trust Conflicts with a Will?
Trusts take precedence over all other documents, including wills. If there is a trust, it determines how all of the assets of a trustor are distributed before a will is even considered. Therefore, if a will conflicts with a trust, the trust prevails.
If there are items left out of the trust, then those items would be governed by the will. However, that is only in the event that they are left out of the trust.
Who has the Right to See a Deceased Person’s Will?
No one has the right to see a person’s will while they are alive. Of course, the personal representative should be allowed to see it so that they know what to expect. After a person dies, the will is recorded in probate court, and it becomes a public document. So, anyone can go to the probate court and access a copy of that will.
For more information on Wills & Trusts In The State Of South Carolina, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (864) 271-7940 today.