Will Preparation

The cornerstone of Estate planning is the Last Will and Testament. A Last Will and Testament is a prepared document that primarily details how a person’s property is distributed to heirs upon his or her death. Additionally, a will can provide instructions for guardianship of minor child, funeral plans, charitable donations, and designation of a personal representative to ensure that the terms of the Will are followed. If a person dies without a Will, his or her property is subject to distribution pursuant to South Carolina’s laws of intestate succession, which may be considerably different from the distribution that he or she desired. A Will ensures his or her desires are known and followed in distributing the estate. The probate attorneys at Smith Ammons can help you begin planning for your family’s future and help you avoid having the State determine what happens to your estate.


Sometimes health issues arise, or accidents occur that render a previously competent person unable to make decisions or manage his or her personal affairs. Without a prior power of attorney in place, the Probate Court may be needed to appoint a guardian and conservator to manage the affairs of the incapacitated person. Though the roles of conservators and guardians are somewhat similar, there are some significant differences in the roles. A guardian has generally broader role with duties such as determining where a person lives or making healthcare decisions. A conservator’s role is limited to financial affairs such as maintain assets and paying bills.

The same person can serve as both guardian and conservator, or the roles can be filled by two different individuals. Disputes concerning guardians and conservators typically arise over the questions of whether a conservator or guardian necessary and who should be appointed to serve in those roles. Other common disputes occur when a party seeks to have the guardian or conservator removed for self-dealing or otherwise failing to carry out the duties of the role. Whether you are seeking to have a guardian or conservator appointed or removed, the probate lawyers at Smith Ammons are experienced in matters involving guardians and conservators and are ready to help you with your matter.

Powers of Attorney

In South Carolina, a person can delegate legal authority to another person to his or her act behalf through a power of attorney. That delegee, the attorney-in-fact, has the right to take certain actions on behalf of the delegator with respect to finances and personal affairs. In South Carolina, the Uniform Power of Attorney Act sets forth detailed duties and powers of the attorney-in-fact and provides for remedies if powers are abused. Typical abuses of a power of attorney include exploiting authority to steal or misappropriate assets, or exceeding the legal limits allowed under the UPAA.

There are several types of Powers of Attorney in South Carolina:

  • Health Care Power of Attorney: grants the authority to make health-related decisions if you should become incapacitated,
  • General Power of Attorney: grants authority to act on your behalf in a wide range of areas, including insurance, real estate, finance, and banking,
  • Limited Power of Attorney: This narrows the general Power of Attorney.

In general, Powers of Attorney are effective for a specific period. A durable Power of Attorney can extend that time if the grantor of the authority is mentally incompetent or incapacitated at the time the POA is set to expire. It is important to have an experienced legal professional such as the lawyers at Smith Ammons to prepare your POA.

Elective Share/Omitted Spouse

Under South Carolina probate law, a surviving spouse is automatically entitled to receive a portion of a decedent’s estate. This is known as an elective share or an omitted spouse claim. The elective share claim is intended to prevent a surviving spouse from being unfairly the purpose of this law is to prevent a surviving spouse from receiving an insufficient and unfair division of the decedent’s estate if he or she is omitted or inadequately provided for in the Will. An elective share claim may also allow a surviving spouse to set aside transfers, or Will provisions made for the purpose of or having the effect of limiting the spouse’s inheritance. Smith Ammons attorneys are experienced in addressing elective share and omitted spouse claims and will work to ensure that a surviving spouse receives his or her fair portion of the estate.

Will Contests

Sometimes, beneficiaries and heirs have reason to believe that a certain Will is not a true reflection of the last wishes of the testator for how his or her estate will be distributed after death. In such instances, there can be several legal reasons for challenging the validity of the Will:

  • Undue Influence – This is when someone, usually a beneficiary, improperly pressures a testator to make last-minute changes to his or her Will. This typically arises when a family member, a person in a fiduciary relationship (e.g., power of attorney, financial advisor), or other person with close access to the testator alters a long-established estate plan.
  • Mental Incapacity – In order to execute a valid Will, a testator must be of sound mind. In determining whether a person possesses the requisite mental capacity to execute a Will, the primary concerns are ensuring that the testator knows the assets he or she possesses and ensuring that the testator knows to whom he or she desires to leave the possessions. Proving lack of legal capacity requires more thana showing of occasional forgetfulness or confusion.
  • Fraud – There are several actions regarding a Will that can be considered as fraud. Forged the testator’s signature, omitting pages, changing pages, and hiding or destroying a will are all instances of fraud.
  • Duress – This is when someone makes a testator execute or change a Will through threats, coercion, force, or intimidation making the Will something the testator would not have otherwise executed.
  • Mistake - A mistake of fact can invalidate a Will.

The attorneys at Smith Ammons are familiar with these legal challenges to the validity of a Will and can help you defend or invalidate a Will.

Fiduciary Litigation

A fiduciary is a person or organization that has a duty to act on behalf of someone else, putting that person’s needs and interests above their own. A fiduciary relationship requires trust and confidence, and the fiduciary has duties of loyalty, good faith, and fair dealing. This is a stricter standard of conduct than is generally required to participate in the marketplace. In probate law, there are different types of fiduciaries, like personal representatives and trustees who acquire their fiduciary roles upon the passing of the testator (will) or settlor (trustee). Other fiduciaries, like accountants, financial advisors, and health care agents, acquire their obligations prior to an individual’s passing.

A common accusation made against a fiduciary is that he or she is acting in his or her own interests, rather that enforcing the terms of the authority-granting instrument. At Smith Ammons, we have attorneys and staff that have worked effectively in bringing claims on behalf of a beneficiary against a fiduciary, as well as in defense of a fiduciary.

Partition Actions

Oftentimes in a Will or Estate, several beneficiaries are granted shared interest in a home or parcel of property. These beneficiaries may not share the same intentions or plans for the property and may not be able to reach consensus as what should happen to the property. In circumstances like this, the personal representative of the estate or beneficiaries of the estate can petition the court for a partition of the property. Partition can be achieved by actual division of the property into smaller parcels or by selling the property and dividing the proceeds of the sale among the beneficiaries. In situations where the court orders a sale of the property, beneficiaries typically are given first right to purchase the property. Whether seeking to retain the property or sell the property, Smith Ammons’ lawyers can assist you through the partition process.

Intestate Estates

An intestate estate occurs when a person dies without having a will. In South Carolina, when a person dies without a will, there is a set of statutory rules to decide who will inherit property through intestate succession. A personal representative is appointed through the probate court to manage the process. The statutory rules for intestate succession are rather complicated, particularly personal representatives who are not well-versed in South Carolina probate law can make critical errors in carrying the PR duties. Whether you have been appointed as the personal representative or are a potential beneficiary of an intestate estate, the lawyers at Smith Ammons can help protect your interests and make sure the process is followed as required.

Trust Litigation

A trust is a legal instrument that provides for a fiduciary, a trustee, to hold property for the benefit of a beneficiary. A trust can serve the purpose of providing financially for generations of family members, protecting family assets, managing a family business, eliminating, or minimizing taxes, or carrying out charitable objectives. In managing the trust assets, the trustee has a duty to act in the best interests of the beneficiary and to follow the rules established in the trust.

Oftentimes, a beneficiary may have reason to believe the trustee has mismanaged the funds or violated his or her duties as defined in the trust. This could include making improper investments or self-dealing through misappropriated assets. The trustee can be held liable in court for violating fiduciary duties and the guidelines specifically set forth in the trust. In certain circumstances, a beneficiary can seek to have the trustee removed from serving in that role. The probate attorneys and supporting staff at Smith Ammons understand the complex relationships between trustees and beneficiaries and are experienced in representing both trustees and beneficiaries in trust litigation.

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The law firm of Smith Ammons is committed to providing quality representation for every client matter that we undertake. Our staff is courteous, compassionate and competent and is eager to assist you in resolving your legal matter. Give us a call today to schedule your free consultation to learn how we can help you.

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