South Carolina Trust
and Estate Law Blog

I get this question pretty frequently. The terms above refer to two very general categories of trusts.

An inter vivos trust is a trust that was created during the lifetime of its creator (the Grantor or Trustor).

A testamentary trust is set up upon the death of its creator, usually in the creator’s Last Will and Testament.

Some distinctions are that an inter vivos trust may be freely revocable and modifiable by its creator during his/her lifetime, whereas the testamentary trust is typically irrevocable, except under certain circumstances. The inter vivos trust may be set up to accomplish asset management, incapacity planning, or Medicaid planning for its creator. A testamentary trust is useful to protect the creator’s eventual beneficiaries from dissipating their inheritance through immaturity, creditors’ claims, divorce, and the like.

These two trust types probably represent the most general distinction that can be made among trusts. Make no mistake though, there are a lot of different types of trusts that can be created. In future posts, I will write more about these different types of trusts.

Since my young son was diagnosed with high functioning autism while in kindergarten a few years ago, I have become more aware of the rights and requirements of the federal Individuals with Disabilities Education Act (IDEA), and have had my share of IEP meetings and updates with his schools. For others dealing with these issues, an interesting problem could arise when a child who is eligible to receive special educational services under IDEA turned 18 years old.

Prior to the child reaching the age of 18, the rights under IDEA would be accorded to the child’s parents. But when the child turns 18, the rights transfer to the child. This obviously brings up the issue of what happens if the child is not capable of exercising those rights? A newly proposed statute would allow several resolutions to this issue.

First, if the child has not previously been determined to be incapacitated, the child may delegate these rights to another adult. This could be done via a power of attorney or other document to be created by the South Carolina Department of Education.

Second, if the above cannot be accomplished, it would be possible for certain qualified licensed professionals to make a certification in writing that the student is incapable of providing informed consent to make educational decisions. This certification would allow the custodial parents of the child to make decisions as an educational representative, or if they are not available, certain other designated close family members. The child would have the chance to object to this certification, and a determination of incapacity pursuant to a guardianship proceeding would seem to take precedence over this certification.

This proposed act appears to make it somewhat easier for family members to maintain control over an adult student’s rights to an education under IDEA. Without these amendments it would seem that the only alternative would be to bring a guardianship proceeding in order to gain control over the right to make educational decisions. However, the guardianship proceeding might very well not be appropriate in every situation, and can be a costly endeavor.

This new proposed law seems to try to fill in this gap where somebody may have rights under the law but be unable to adequately and thoughtfully exercise those rights. If there is any news on this new law I will provide an update, so keep coming back.

One night back in October, I started having a dull pain throughout my stomach. It was not too bad, but it was noticeable, and it woke me up from my sleep in the middle of the night. I took some Advil and went back to sleep. Woke up in the morning feeling a little better and went to work. That day my morning consisted of a lot of walking around. The pain came back, and started getting worse. In the afternoon I went home to rest. Around 4:00, I went back to work. Over the next few hours, the pain moved to the lower right side of my stomach. I started to think I had appendicitis.

Back in college many years ago I volunteered a few times in the local hospital’s ER. I remember one time discussing with the attending ER doctor the classic presentation of appendicitis, because there was a patient there he suspected had it. It was very similar to what I was experiencing … a dull pain throughout your stomach that migrates to the lower right side. That night I went to the local urgent care to get checked out. They didn’t see signs of infection (an indicator of appendicitis) and the doctor thought that since the pain was not that bad, it was most likely not appendicitis. With the caveat that in 5-10% of cases, it very well still could be. Went home that night, and was pretty uncomfortable sleeping. Woke up the next day, and had to take a day off from work. The pain was worse. Then all of a sudden in the afternoon, I started to feel much better. Until after dinner, when all heck seemed to break loose in my stomach. My stomach seemed to be on fire everywhere. Sleep was very difficult.

The next day I went to my primary care doctor who through a blood test now found signs of infection. He strongly suspected appendicitis and sent me for a office surgical consult. The surgeon also suspected appendicitis, who sent me for a CT scan. The radiologist diagnosed a ruptured appendix and sent me straight to the hospital. I had surgery that very night. The surgeon who did my surgical consent used the term “classic presentation” and suspected that the appendix probably ruptured the day before when I started feeling better. After the surgery I had a week long stay in the hospital with a few weeks recovery time thereafter.

In the grand scheme of things, this was a relatively minor medical blip. Certainly it could have been worse, and I certainly had some of those worse outcomes going through my mind. Anyway, as I was waiting to be brought into the operating room, my wife was there and I recall reminding her where she could find our life insurance policies and estate planning documents in case she needed them. Luckily we had taken care of that stuff already, so I guess I knew that if anything happened to me, she and the kids would be okay financially. So the lesson is, don’t procrastinate on getting your affairs in order, it is easy to do. Sometimes people think the process will be too long and complex so they do not want to engage in it. They put it off. I’ll tell you, I find that most of my clients are pleasantly surprised as to how painless and quick the process can be.

And of course the final lesson is this. Never ignore the signals that your body is sending you. If you notice a change in your body’s functioning or a pain that seems different from anything you’ve experienced before, definitely go get it checked out as soon as possible.

The South Carolina Bar Association has announced its second annual Aging Gracefully conference.

“The fastest growing segment of South Carolina’s population is senior citizens. As more of the population reaches their golden years the issues associated with the aging process increase. Recognizing and preparing for the legal, medical and social issues that accompany aging is often difficult. This conference provides an opportunity for seniors, their families and caregivers to learn and recognize these issues and make intelligent, informed choices about their care and prepare for the road ahead.”

Two dates available:

Thursday October 8, 2015, 9am-3pm, at the TD Convention Center in Greenville, SC
Thursday November 5, 2015, 9am-3pm, at the Florence Civic Center in Florence, SC

Click here for more information and tickets.

One night while out on the town with some friends, a friend of a friend asked me what estate planning was. I thought about the question for a moment, quickly raced through what my answer should be, and realized that there are many different ways to answer that question. Since the goals to be accomplished by estate planning can be varied, how you might define estate planning can differ.

My answer was three fold. First, estate planning arranges for the orderly transfer of assets to your heirs after your lifetime. Second, estate planning allows you to protect your heirs from the potentially detrimental effects that an inheritance can have. Third, estate planning can be utilized to protect assets from creditors and illness.

The estate planning task can also vary based on the stage of life you find yourself at. If you are at a younger stage of your life, estate planning can address issues such as guardianship for your young children, and management of your children’s finances if something were to happen to the natural parents. If you are at a later stage of life, estate planning can address transmission of retirement assets and protection of assets from medical expenses and, if the estate is large enough, from estate taxes. While we also might focus on the transmission of assets to the next generation, we also have to be concerned with the management of assets in the current generation in the case of disability or mental incapacity.

The typical estate plan is made up of several basic documents. They are the Last Will and Testament, the Durable Power of Attorney for Property, the Durable Power of Attorney for Health Care, a Living Will, and possibly a testamentary or inter vivos trust. We also must not forget that beneficiary designation forms play a large role in the estate plan, and oftentimes these important documents receive scant attention. The documents to be used in a particular estate plan depends on the individual situation.

I am often asked how much estate planning costs. My standard reply is that is a lot like walking into a car repair shop and asking how much to fix a car. The answer is it depends on what you need. You can expect a truly bare bones simple estate plan to run several hundred dollars, whereas an estate plan using one or more trusts can be several thousand dollars. Bottom line is it depends. It can seem like a significant investment, but some attorneys will give you a free consultation to discuss your situation.

Okay, so here comes the lawyer stuff, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs does not make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.