Will and Estate Planning - Five Reasons Why I Don't Have A Will

By Wayne Patterson, Greenville South Carolina Estate Attorney and South Carolina Probate Attorney


One:I hate my children and want them to never speak to each other again after the battle over my estate.

Two: I hate my spouse and want him or her to suffer the agony of attempting to probate my estate without a will.

Three: I think foster care is great and I want my minor children placed there while a court decides which greedy relative will get custody.

Four: My family doesn't need the money so I want the government to take as much of my estate for taxes as possible.

Five: I have reliable information that I am never going to die.

Of course the above is written tongue in cheek. However the tragedy of the Twin Towers, the battle over freezing Ted Williams body, and now the sniper shootings in the D.C. area are bringing to more Americans a deeper realization of their own mortality and that of their loved ones. The American Bar Association estimates that 70% of Americans do not have a will. The median age of those killed in the terrorist attack on the World Trade Center was 39 and over two thirds of those killed were men. This is the age group least likely to have a will and the court battles will last for many years after the physical scars are erased.

A case in point is the story of a young lady from Atlanta, Georgia. Her parents divorced when she was a baby and her mother died several years later. Her aunt took in the child and worked two jobs so the niece could graduate from college. The young lady was ambitious and bright. After college she excelled in her job and which allowed her to buy a house and a new car. Eventually the aunt became disabled and was taken in and cared for by her niece. One foggy morning a crash on an Atlanta freeway ended the young lady's life. Without a will her entire estate; home, car and bank account; was awarded by the court to two half-sisters that she had met only briefly at her father's funeral. The aunt was forced to enter a nursing home. Unfortunately what is fair is not always what is legal.

It is not unusual for a family member to confiscate or destroy the will and refuse to provide any information, often in defiance of a court order. You can avoid much of your loved ones emotional stress and legal bills if an attorney drafts your will and has a copy of it in their files. It is not unusual for the son/daughter/next wife that has been left out to search the house and destroy the will. While only an original is acceptable in probate court, your attorney may be able to overcome the presumption that you destroyed the will.

Review the five reasons not to have a will and ask yourself which one applies to you. I will also be glad to add any new reasons to the list. One that is not acceptable is that it costs too much. Some PrePaid Legal Plans prepare a will for you and your spouse for free with a membership and provide reduced rates on trusts and other estate legal issues. An attorney that specializes in estates can be located through your state's Bar Association. Standard software programs are available from many sources but your will still needs to be reviewed by an attorney. Whatever route you chose, don't leave your final arrangements to the whim of a judge.

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Basic Requirements for a South Carolina Last Will and Testament:

Age: The testator must be at least 18 years old.

Capacity: The testator must be of sound mind (capable of reasoning and making decisions).

Signature: A South Carolina last will and testament must be signed by the testator, or by some other person under the testator's direction in the testator's presence.

Witnesses: At least 2 witnesses (who are not beneficiaries) are required for a valid South Carolina last will and testament by subscribing their names to the will, or by signing an affidavit, while in the presence of the testator and at the testator's direction or request. If a witness is a beneficiary, his or her bequest is void unless he or she would have received the bequest anyway in the absence of the will. To be self proving, the will must also be notarized.

Writing: A South Carolina last will and testament must be in writing to be valid.

Beneficiaries: A South Carolina last will and testament may make a disposition of property to any person.

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