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LAWYERLISA

Real Estate Law. Estate Planning. Simplified.

LawyerLisa, LLC focuses on Real Estate Closings, Estate Planning, Probate Litigation, and Elder Law.  Our firm is here to provide clients with comprehensive solutions in a comfortable environment.  Let our experience lead you to the solutions you seek.

Do you trust your trust?

Is it time to have your trust reviewed?

I have a lot of people tell me they have a trust or that their parents had a trust done and that their estate planning is complete. Some of them come to see me for a review to verify that everything was prepared correctly. The great thing about a consultation is that I can get all the information and in one sitting I can either confirm that everything looks great and they don’t need to worry, or identify problems and suggest immediate solutions to fill in any gaps in their plan.

In my experience at least 9 out of 10 plans that I have reviewed were not comprehensive. Some of them are not properly funded. Some don’t leave assets to beneficiaries the way people intended. Some are missing legal provisions that could be important in certain circumstances. Many times, the point of the trust is to avoid probate at death, but unbeknownst to the person, assets will go through probate.

As a Certified Elder Law Attorney, credentialed through the National Elder Law Foundation, I have experience not only in drafting fully comprehensive estate plans, but also in reviewing plans previously prepared to check for potential issues. If you have been wondering about the accuracy or completeness of your or a loved one’s plan, schedule a consultation with our office.

-Lisa Hostetler Brown, CELA

Don't get your legal advice from a soap opera...the reading of the will

How do you know if rich Aunt Susan left her favorite nephew all the family fortune?  If you watch a lot of television, you may think that the lawyer calls the family together and reads the will aloud, announcing the lucky "winner" in dramatic fashion.  Well, you'd be wrong.

In South Carolina, there is no formal event such as a reading of the will.  When someone dies, the person in possession of the will has 30 days to file the will with the county probate court.  

Reading of the Will and Filing the Will with the Probate Court

All immediate family members will receive notice of the probate of the will and anyone who is named in the will also receives notice.  The initial notice sent to everyone is called the Information to Heirs and Devisees.  If someone would like to receive more information, they will need to file a Demand for Notice with the probate court.  Just because someone receives the Information to Heirs and Devisees notice, does not mean that they will get anything from the deceased person's estate.  

If you think you should receive something, you should file a Demand for Notice and consult with a probate attorney as soon as possible to protect any rights you may have.

If you have questions or need assistance with probate matters, or if you would like to avoid probate for your own estate, you can contact LawyerLisa for a consultation.

Changes to VA pension benefits are coming.

The Department of Veterans Affairs has been working for over two years to make changes to the eligibility standards for VA pension benefits.

Changes are coming to VA pension benefits LawyerLisa

Some of the proposed changes would include setting a concrete net worth for veterans applying for pension benefits and importantly, creating a 3 year look back period for asset transfers.

There is currently a 5 year look back period in place for persons applying for Medicaid benefits, such as long-term skilled nursing care.  Putting a 3 year look back on applications for VA pension benefits would align with the policy of ensuring applicants don't intentionally divest their assets in order to have the government provide them with benefits.

The proposed changes to the final rule are still pending and an effective date has not been announced yet.

Thanks to Krause Financial Services for publishing on this topic.  Click here for a link to their article.

What about mama? How to care for an aging family member.

Mama is living by herself.  Daddy passed away 7 years ago.  She can perform most of the tasks and chores around the house, but is getting a bit frail and forgetful.  Sometimes she misses her daily medications.  

Nana is 84 and has dementia.  She was recently hospitalized.  Prior to this she was living at home with her husband of 62 years.  She is now in a wheelchair and gets angry often.

Mimi has been in an assisted living facility for the last 5 years.  Her health is declining.  She has 3 kids.  Her daughter is very involved and has been helping with her care, but her son keeps visiting her and getting money from her.  She doesn't have the resources to keep giving away her money.

These are just a few of the examples of common elder law situations.

Lisa Hostetler is a Certified Elder Law Attorney with the training, experience, and resources to assist your family with the right plan for an aging family member.

Call 803-563-5163 today.

Notorius: New SC case clarifies test for prescriptive easements

The South Carolina Supreme Court recently ruled in Simmons v. Berkeley Electric, Op. No. 27674 (S.C. Sup. Ct. filed November 2, 2016) and clarified how a prescriptive easement is established. The Court laid out the test for a prescriptive easement: "In order to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner's rights for a period of twenty years." This ruling helps clarify the elusive third element and provides guidance for courts in deciding cases where one party claims a right to use another's property.

Click Here to read the full case online.

 

Prince Died Without a Will. It made the news. Don't let this happen to you.

According to news sources, Prince's sister filed probate documents stating that Prince died without a will.  Prince passed away on Thursday at the age of 57.  Under the law, a person who dies without a will, dies intestate.  This means that state law determines who their assets belong to.  In this case, Prince had a sister and 5 half-siblings who stand to inherit his legacy.

Do you know who will inherit from you when you pass away?

Call LawyerLisa today if you want to make this important decision for yourself, instead of leaving it up to the government.

The dangers of fill-in-the-blank wills

A will came across my desk to review after someone passed away.  It was a fill-in-the-blank will printed off the internet.  Better than nothing?  Maybe.  Did it distribute assets to the family members this person wanted?  No.  Did it avoid the need for additional court involvement (and costs)? No.

Filling in the blanks seems easy enough, but if you aren't familiar with drafting wills, it is extremely easy to miss something or not include something that is necessary.  If you didn't spend years reading and translating Latin in law school, you might not know the significance of seemingly extraneous terms.

You can pay to do it right or your family can pay to have it fixed later.  Paying to deal with mistakes after death is generally much more time consuming, difficult and costs more than if it were done correctly to begin with.

Do you have a will you're unsure about?  Call us today to make sure your estate plan and will are right.

So, you're getting divorced: Important probate and estate issues to consider

Getting a good divorce lawyer isn't the only legal consideration in a divorce.

There is a lot more to consider and be proactive about.  South Carolina law has changed in recent years.  It's important to consult an estate planning attorney who is familiar with the new laws and how they affect you.

In Palm Springs, they think homelessness is caused by bad divorce lawyers.
— Garry Trudeau
  1. If you intentionally kill your spouse, you will not receive any benefits from their estate.  It's the law!
  2. If you or your spouse pass away prior to a final divorce decree:
    1. A pre-nup or post-nup which waives all rights in the property or estate, or a complete property settlement entered into in consideration of separation or divorce, is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other.
    2. Elective Share: A surviving spouse may elect to take an elective share in one-third of the deceased spouse's probate estate.  This would generally be elected if the surviving spouse is left less than one-third by the deceased spouse or completely omitted from the deceased spouse's estate.
    3. In South Carolina, you cannot just cut out your spouse at your death and expect them not to receive anything without following the proper legal methods to limit or eliminate the amount they can receive---even if you are going through a divorce or are separated from them!  We can set up a Q-Tip trust or provide other options to you.
  3. You must have a final divorce decree (signed by the Court and filed in the office of the clerk of court) or annulment to terminate your marital status for purposes of determining marital rights.  A decree of separate maintenance does not terminate the status of spouses under Section 62-2-802 of the Probate Code.
  4. Beneficiary designations are changed by divorce, but if a company doesn't know, they may send distributions where you don't want them.  It's important to update your accounts, beneficiary designations and fiduciaries.
  5. Common Law Spouse: If two people are living together as a married couple at the death of one of them, the other may claim to be a common law spouse and receive the benefits of a spouse after death (including assets that would normally go to the deceased person's children or family).  
    1. Adjudication must begin within the later of eight months after death or six months after the appointment of the personal representative. Clear and convincing proof of the common law marriage must be presented to the Court.
  6. When writing up property settlement agreements, consult a lawyer knowledgeable in refinances, assumptions, types of deeds and title insurance.  It is easy to direct property transfers in a settlement agreement that don't make sense.  A quit claim deed is often not the best type of deed to use, so ask someone familiar with real estate law before requiring it in your agreement.

If you would like comprehensive advice on these issues and more, please contact us to schedule a consultation.  This is a small snapshot of some of the issues that may be encountered.  

Call 803-563-5163 or send us your info at: www.lawyerlisa.com/contact-attorney-lisa-hostetler

Should I use an online will? Why it's like getting a cancer diagnosis from WebDoctor

If you want a quick answer to a simple health question, you might search online.  But, if you want customized care, tailored to your exact health situation and patient history, you'll go see a doctor.  And if your head hurts, you won't make an appointment with the podiatrist.

The same applies to Estate Planning, and the consequences of poor planning can have a lasting detrimental effect on your loved ones after your passing.

If you want a customized plan made specifically for you, your financial situation, your family, marital status, health wishes, and anything else that is important to you, you'll need an attorney who focuses on comprehensive estate planning.  Online forms and fill in the blanks are not a substitute for competent legal advice.

A website can generate a will; an attorney can give you advice; but the right attorney will be able to provide tailored advice and the right legal documents to ensure your wishes are carried out after your passing.

 

What IS title insurance and why do I need it?

If you own something, chances are you have insurance for it. Car insurance, homeowners insurance, boat insurance, there are all sorts of insurance policies. But what if it turns out that you don't actually own something that you thought you did? What if someone tried to take it away, or place their own claim to it? 

Title insurance covers the title to your property: your ownership of it. Simply put, title insurance covers you from past owners and possible issues like outstanding heirs, mortgages, tax liens, and other types of judgments that attach to real property. 

If you're purchasing a home or piece of property, make sure to ask your closing attorney about the importance of title insurance and a full title search. 

It just might save you a mountain of headache later.

ABLE Accounts: IRS lessens burden; waiting for SC to pass bill

The Internal Revenue Service recently announced less stringent federal rules for new accounts that  allow people with disabilities to save money without jeopardizing their government benefits. Earlier this year, the IRS established how the Achieving a Better Life Experience (ABLE) Act accounts would operate. After push-back from disability advocates that the proposed requirements would be too burdensome, the IRS is issuing final regulations with less stringent reporting requirements. Specifically, individuals opening ABLE accounts will not need to submit medical documentation, but will have to certify under penalty of perjury that they have a qualifying diagnosis.

South Carolina has a bill pending to be reconsidered during this legislative session to establish the South Carolina Able Savings Program to allow individuals with a disability and their families to save private funds to support the disabled individual.  The Act allows private funds to be used for disability-related expenses in a way that supplements, but does not supplant, benefits the person is already receiving through insurance, Medicaid, SSI or other sources.

Please contact LawyerLisa for information on disability planning, special or supplemental needs trusts or guardianship and conservatorship actions at 803-563-5163.

For more information, visit the State Treasurer's page: http://www.treasurer.sc.gov/citizens/sc-able/

The text of the bill is available at: http://www.scstatehouse.gov/sess121_2015-2016/bills/3768.htm

 

A Lesson to SPUR you to read restrictive covenants.

Last week, The SC Court of Appeals decided a case filed against The SPUR at Williams Brice Owners Association, Inc.  Owners of a unit at The Spur were renting their unit to college students.  They had hoped to sell, it but were unable to sell because of the economic decline several years ago.  The Master Deed for the condo stated that units cannot be rented to any student currently enrolled in a two or four year college, unless it's the child or grandchild of the owner, who may have up to one roommate.  The Court held that the owners were bound by the restrictive covenants that were filed when they purchased the unit and they cannot rent to the college students.

The Lesson: Always read the restrictive covenants that affect your property BEFORE you buy.

Why set up a QTIP Trust?

What is a QTIP Trust?

As you embark on your estate planning journey, there are many different strategies to consider. One of them is the Qualified Terminable Interest Property (QTIP) Trust.  A QTIP Trust provides limited access to trust assets for a surviving spouse.  The spouse receives income from the trust, but cannot decide on who ultimately receives the remaining balance.  It can be set up to allow the spouse to withdraw the greater of $5,000 or 5% of the trust assets, or not.  No other principal withdrawls are allowed by the spouse.

So why set up a QTIP Trust?

You can limit the ownership of your assets by a spouse, yet still provide for your spouse during their lifetime.  This type of trust may be used in a second marriage to ensure that the assets are ultimately distributed to children of a former marriage.

If estate taxes are a concern, your personal representative can claim a deduction for amounts transferred to the trust.

If you have a spouse that is or may receive Medicaid long term care, you would not want to leave assets to him or her at your death.  However, in South Carolina, you can not "cut out" your spouse and failure by your spouse to claim an elective share may result in Medicaid disqualification.  A QTIP trust can be used to leave your spouse only a stream of income from the trust, thus eliminating a transfer of assets to them at your death.  

LawyerLisa, LLC 3202 Fernandina Road Columbia, SC 29210 Phone: 803.563.5163

LawyerLisa, LLC 5175 Sunset Boulevard Ste 1 Lexington, SC 29072 Phone: 803.832.1068

LawyerLisa, LLC 100 Williams Street Greenville, SC 29601 Phone: 864.990.0347

Serving: Anderson | Clemson | Columbia | Ballentine | Bamberg | Blythewood | Cayce | Chapin | Elgin |  Forest Acres | Fort Jackson | Gadsden | Gaston | Gilbert | Greenville | Hopkins | Irmo | Lake Carolina | Lake Murray | Lancaster |Laurens | Lexington | Mauldin | Pelion | Rock Hill | Red Bank | Seven Oaks | South Congaree | Springdale | St Andrews | Simpsonville | Spartanburg | Sumter | Swansea | West Columbia | White Rock