South Carolina Trust
and Estate Law Blog

File this under giving credit where it is due…… This is a fair article by Legal Zoom about when you should consider hiring a lawyer to help you with your legal matter. I note that even this article says that unless you know what you are doing, you should hire a lawyer to help you with your estate planning.

Get Article Here.

We all know that our financial health can be as important as our physical health. Indeed, our financial health or lack thereof can have serious detrimental effects on us physically. But financial health is more than just sufficient money in the bank, saving for retirement, and an estate plan. Financial health includes having the knowledge to avoid the internet scams and frauds that seemingly come at us every day, as well as being able to keep our personal information secure on the web.

Below I have compiled a list of tips that you can follow to keep yourself safe and sound on the internet. Review them carefully, many of these tips are straight forward common sense, others a little less so. Be careful out there. And if you have any tips of your own, feel free to leave them in the comments.

Tips For More Secure Internet Browsing

• a. Keep your internet browsers and antivirus security up to date. As vulnerabilities are discovered, they are made known to the browser companies and to the public. The vulnerabilities are then patched. If your software is not up to date, you can become vulnerable.
• b. Scan files before downloading them, even if you think you trust the file and the sender.
• c. Protect your cookies! When you log in to a website, the website will typically place a cookie in your browser so it can remember who you are. An attacker can set up a phony website to steal your cookies if you visit the phony website. These cookies can be useful to attackers who can take the information and attempt to impersonate you on the website that generated the cookie. This obviously is bad news. You can prevent this by being sure to sign out from any websites that you are logged into before browsing to any other unknown website. And you should always sign out from websites by actively clicking on the ‘Sign Out’ or ‘Log Out’ button provided by the site.
• d. Do not use options that allow you to remain logged into a website when you are done using the website. While this may be convenient, this stores the login information on your computer and makes you vulnerable if your computer is ever lost or stolen, or if a hacker can get to the stored information over the internet.
• e. Consider refraining from any leisure internet browsing on any computer that you use with sensitive data. While no device is 100% safe from hackers, consider only doing leisure browsing on an iPhone or iPad, which are heavily protected from intrusion via the internet. Use your actual work computer only to do what is required to get your work done.
• f. Avoid free public wifi hotspots, particularly when engaging in any sensitive activity, like checking bank balances or online shopping. Attackers can set up dummy hotspots that enable them to look at everything you send from your computer through the hotspot. Attackers can even attack legitimate hotspots by hacking into the routers. It is best to avoid these.
• g. Websites should allow you to use SSL encryption whenever you engage in any sensitive activity, such as login, create a new account, or make a purchase. SSL prevents an attacker from listening to the communications between your computer and the website you are visiting by using encryption. You can identify that SSL is being used by seeing ‘https://’ before the website address, and you should see a lock icon in the address bar.
• h. You should always assume that emails sent to you that reference issues about your bank accounts, credit account, payment processor accounts, shopping accounts, email accounts, and/or social network accounts are fraudulent phishing attempts unless and until proven otherwise. If you receive such an email, do not click on any link in the email. These links very well can lead to a counterfeit version of the relevant website designed to get you to give up your important account information. Instead, close the email, and log directly into the account through your internet browser. If the email was legit, you will see so when you log into the account. Because email phishing attacks are so pervasive, you should pretty much never click a link that comes to you in an email, particularly if you are not familiar with the relevant company’s policy for sending notices via email.

Tips For More Secure Passwords

• a. Do not use actual words or names in your passwords, even foreign words or names. These types of passwords are vulnerable to dictionary-based attacks where every word found in the dictionary is used as a guess password. Even if you put symbols, numbers, or capital letters within or around the word, it is trivial for hackers to also add symbols, numbers and capitals to their guesses to crack your password.
• b. Do not use all letters, or all numbers for your password. Again, computer processing power makes it trivial to try all the possible combinations to guess your password.
• c. Do not use addresses or telephone numbers for your passwords. If a hacker is specifically targeting you, assume they will have access to this info.
• d. Use longer passwords. If a website lets you submit a long password, do so. Longer passwords (over 20 characters), if they can be cracked at all, will take much longer to be cracked than a shorter password.
• e. But you ask, how can I remember a 20 character password? Easy, use a password manager. With a password manager you only have to remember a single password to log into the manager, then you can copy and paste the passwords into whatever website you want to log into. These are available for iOS and Android devices, as well as Windows and Apple computers. It takes a few extra seconds, but it is worth the extra security.
• f. Also, consider using a random password generator. Random password generators will create passwords for you using cryptographically secure random string generators. They allow you to set the length of the password you create, and also allow you to insert any special characters, numbers, or capital letters that a website may require. And they are truly the most difficult passwords to crack. Keypass is an open-source random password generator/password manager that has worked very well for my purposes.
• g. If you have a high profile in public, you will want to be careful about what you use for security questions and answers. It is possible that the answer to your security question can be determined by doing a little research on the internet. This is how Sarah Palin’s Yahoo email account was hacked by a twenty year old college student during the 2008 presidential campaign. The attacker simply made a request to Yahoo to reset Sarah Palin’s email password (all he needed to initiate the process was the email address). To be able to complete the password reset, the attacker had to answer two security questions. The first question was Sarah Palin’s birthdate. The second question was where Sarah Palin met her husband. The answers to these questions were readily available on the internet. Be careful selecting security questions and answers.
• h. Do not use the same password on multiple sites. Not all website security is created equal, if one website gets hacked, it will be a big hassle to have to change passwords on every site you have registered for.

If you follow the above tips, you will be well on your way to fortifying your private information on the internet. Have a tip of your own? Please share it below!

Sometimes clients come to me because they have tried to deal with Probate Court themselves, but the Court returned their paper work and directs them that a formal appointment proceeding is required and to go find a lawyer. So what is this formal appointment thing? And when is it necessary? And why do you need a lawyer?

It is definitely preferable to administer estates on an informal basis in the Probate Court. Informal appointment means that the familiar trappings of litigation, such as a summons, service of process, and court hearings will not be required to get appointed as a Personal Representative. Unfortunately, informal appointment is not possible in all cases. In some cases, you must instead proceeed formally.

Formal appointment is required in the following circumstances:

• 1. The Decedent did not leave a Last Will, surviving family members cannot agree on who will serve as the Personal Representative, and there is no single person who has priority to serve, or
• 2. The Decedent left a Last Will designating a particular person to serve as Personal Representative, but that person either cannot or will not serve, there is no alterate designation in the Last Will (or there is an alternate but that designee cannot or will not serve as well), and there is no single person who has priority to serve.

So what does formal probate require? Formal probate requires that you file a formal petition with the Court, as well as a summons. Once filed, you must serve the petition and summons on all the heirs of the decedent, as well as all the will beneficiaries, if any. The summons provides a thirty day period for any interested party to file an Answer to the petition. A hearing must also be requested from the Court, and notice of the hearing served on all interested parties as well, providing at least twenty days notice of the hearing.

After the hearing is held, the Probate Court will make its decision as to who will serve as Personal Representative. It is obviously preferable to have all the interested family members in agreement so that informal probate can be undertaken. But in some cases there is no agreement, and the more complex formal probate procedure is available.

Next up in South Carolina Estate Lawyer A to Z, is the marital estate tax deduction. This is a deduction against the estate tax, and it results in significant tax savings when utilized correctly.

The marital deduction was first introduced in 1948 with the passage of a fifty percent marital deduction applicable to non-community property. In 1977, the marital deduction was changed to be the greater of $250,000.00 or fifty percent of the decedent’s estate, still applicable only to non-community property. In the Economic Recovery Tax Act (there seems to be a lot of these Recovery Acts doesn’t there?) of 1981, the marital deduction became unlimited and it was applied equally to separate and community property. This is where we stand at present with the marital deduction.

There are seven major requirements in order for a transfer to a spouse to qualify for the marital deduction. They are set forth in IRC Section 2056 and are:

• 1. The decedent must have been legally married at the time of death.
• 2. The person to whom the decedent was legal married must survive the decedent.
• 3. The surviving spouse must be a US citizen (or the property is held in a QDOT trust).
• 4. The interest passing to the surviving spouse is includible in the decedent’s gross estate
• 5. The interest must pass to the surviving spouse.
• 6. The interest received by the surviving spouse must be a deductible interest.
• 7. The value of the interest passing to the surviving spouse must be at its net value.

The fifth requirement is one of the more interesting, as it leads to the question of what qualifies as an interest that passes to the surviving spouse. Certainly, property acquired by will, intestacy, elective share, power of appointment, or beneficiary designation qualifies as passing to the surviving spouse. But what about transfers in trust where the surviving spouse only has an interest for life? Do these qualify for the marital deduction as property passing to a surviving spouse?

The rule has existed that terminable interests in property do not qualify for the marital deduction. The reasoning behind this is that while the government is willing to defer the estate taxes owed when the first spouse passes away, the government wants some assurance that it will eventually be paid when the surviving spouse passes away (the marital deduction can be seen more as a delay in the payment of estate taxes rather than a full avoidance of the tax). Property given to the spouse that is a terminable interest would circumvent this principle. Some examples of terminable interests are run-of-the-mill life estates and interests in trusts that fail to meet certain requirements.

What are the certain requirements that could result in a marital deduction being available for a terminable trust interest? Well that would be the QTIP trust (Qualified Terminable Interest Trust), and I will talk about that some more when I get to the letter Q.

When you open an estate and there are creditors who would like to get paid for unpaid debts, you will likely find that creditor’s claims will be made by the creditors filing a claim form in the Probate Court where the estate is being administered, as well as serving said claim on the Personal Representative.

The claim period for doing this is the earlier of 8 months after the Personal Representative is appointed, or 12 months after the death of the Decedent. Once this claim period is expired, it falls to the Personal Representative to determine which of the claims is: 1) valid and must be paid, 2) which is invalid and should not be paid, and 3) which is valid but cannot be paid because there are insufficient assets with which to pay.

What should a Personal Representative do when he or she believes that a claim is either invalid, or is valid but there are insufficient assets to pay with? In this case, the Personal Representative should send a notice of rejection of the claim to the creditor. This is done pursuant to SC Code Section 62-3-806. What sending this rejection does is it puts the onus on the creditor to petition the court for a hearing to have the validity of the claim determined. And it forces the creditor to do this within 30 days of the mailing of the rejection notice. If the creditor fails to file said Petition, the claim will be forever barred.

Like any decent lawyer, 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 doesn’t 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.