Probate – Linda Knapp

PROBATE, ESTATE PLANNING

scarletccarter@gmail.com — Mon, 13 Sep 2021 22:35:40 +0000

Q. What things can be done to avoid probate?
A. A simple way to avoid probate is to give away property during your lifetime. But there can be consequences because you lose control and cannot recover the item, cash or property just by asking. The new owner has to agree to return something to you or even use funds for your benefit. You should only give away what you can spare. Gifting over $15,000 per person in a year requires you to file a gift tax return with the IRS.
A second thing you can do is to make an asset payable on death. An example is life insurance, an IRA, a 401k, or an annuity. As long as you don’t name your estate or fail to name any beneficiary the property will pass outside of probate to the person you designate. You should name a contingent beneficiary in case the first person you select predeceases you.
Likewise you can use payable-on-death (POD) accounts. These are also sometimes called multiparty accounts. POD accounts do not provide the beneficiary with immediate access to your financial accounts, such as checking and savings accounts. The funds are given to the named beneficiary after you die. With a multiparty account the other person on the account can have immediate access while you are alive and after you die it belongs to the other person and does not pass thru probate. This can be a useful way for loved ones to have quick access to funds to pay for funeral expenses, last bills, and even support themselves.
Similar tools are called transfer on death (TOD) accounts used for stocks, bonds and other securities. Some states do not allow this form of designation, but South Carolina does.
Joint ownership with right of survivorship or a life estate are often used with real property, vehicles, and mobile homes to avoid probate. These types of ownership create various rights and limitations such as needing the other owner’s permission to mortgage the property or sell it. You need to understand the drawbacks before creating any changes to your real property. This change in title is a gift and subject to the five-year-look-back-period for Medicaid eligibility.
Living trusts have grown in popularity because they avoid probate and let you retain control as long as you are competent. These kinds of trusts can hold your real property in multiple states, including time shares. Said trusts can also hold household goods, vehicles, cash, accounts, etc. They can work in conjunction with some of ideas above.
Do not act on any of these ideas if you feel pressured by someone or are confused. You should consult with an elder law attorney well versed in Medicaid law before gifting away property and assets, changing your beneficiaries, or even creating a living trust.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

WHEN IS AN ANCILLARY ESTATE REQUIRED IN PROBATE COURT?

scarletccarter@gmail.com — Wed, 09 Dec 2020 13:04:00 +0000

When a decedent owned real property in another county of South Carolina or another state other than the state in which probate proceedings have been initiated, it will usually be necessary to institute separate probate proceedings to arrange for the administration of the property in both counties and/or states. The proceedings in the primary state, usually where the decedent was domiciled will be the more important proceedings and deal with all the personal property and debts of the estate. The secondary proceedings are referred to as “ancillary” probate proceedings, and will usually be limited in several important ways:
• The personal representative appointed in the domiciliary state will be automatically entitled to appointment as ancillary personal representative subject, however, to the state’s residency requirements for personal representatives.
• No will contests or other challenges to the authority or effect of the domiciliary state proceedings will be permitted in the ancillary administration.
• No formal accounting requirements will be imposed on the ancillary proceedings, on the theory that the accounting will be completed in the domiciliary state.
Ancillary estate administration allows for effective title searches of real property in the counties or states where homes, land, vacation homes, time share interests, farms, and inherited real property is located. A lawyer in another state or county may be required to assist with the ancillary probate.

Generally, there is a modest fee to open the ancillary estate and certified copies of all documents filed in the primary estate are provided to the ancillary court. A file or case number is given for the ancillary estate. Deeds of distribution will be filed in the county or state where real property is located. Certified copies are then filed where the primary estate is being administered.

For example if the deceased lived in Aiken County and had a vacation condo in Hilton Head that he or she also rented, then the primary estate administration would be opened in Aiken County to deal with his or her house here, bank accounts, stocks, and outstanding medical bills. The ancillary estate would be opened in Beaufort County. The same personal representative could collect rent on the condo and report any expenses in connection with the condo like insurance, repairs, and painting prior to placing the condo on the market to the Aiken Probate Court. When the condo is sold, likely under approval from the Beaufort County Probate Court, any Summons, Petition, Lis Pendens, proof of service and consent documents, the resulting HUD statement and deed to the buyer is recorded there. Certified copies of the pleadings and the order granting the sale, HUD statement and deed are recorded with the Aiken County Probate Court.

DISCLAIMER The information given in this article is of a general nature and does not create an attorney-client relationship. You should always consult with an attorney regarding the specific facts of your situation. December 2020

WRITTEN BY LINDA KNAPP

HOW DOES AN ELECTIVE SHARE WORK?

scarletccarter@gmail.com — Wed, 11 Dec 2019 11:16:30 +0000

In most states the law allows a surviving spouse to make an election against decedent’s will to ensure the surviving spouse receives a fair inheritance. In South Carolina the percentage for an elective share is 1/3 of the “probate estate”. The elective share replaced the old English concept of dower which gave a woman a life estate in a fraction of her husband’s lands acquired at any time during the marriage. Dower was found to be unconstitutional by the South Carolina Supreme Court in 1984 and a violation of the equal protection clauses of the South Carolina and US Constitutions.

Do not confuse an elective share with a spousal share when the decedent dies intestate or without a will. The surviving spouse of a decedent who dies without a will receives 50% of the probate estate if there are children and the children receive the other 50%. If decedent had no children, the surviving spouse receives 100%.

And do not confuse the elective share with an omitted spouse, one who is not named in decedent’s last will and testament because it was prepared before the marriage or who was provided for by his or her spouse outside the will as shown by the amount of transfer or other evidence. See S.C. Code §62-2-301.

It is important to note that a married person not domiciled in South Carolina but having property in this state is governed by the state of decedent’s residence not South Carolina law when determining a person’s rights to and amount of an elective share.

For purposes of the elective share the “probate estate” consists of property passing under the will PLUS the decedent’s property passing by intestacy, reduced by funeral, administrative costs and valid claims against the estate.

The election must be filed by either the surviving spouse, his or her duly appointed attorney-in-fact or pursuant to an order of the probate court when a protected person is involved. A filing for an elective share must be made within 8 months of decedent’s date of death OR 30 days after the surviving spouse is served a summons and petition to set aside an informal probate or to modify or vacate a formal probate of decedent’s will.

The surviving spouse can withdraw his or her election or reduce the demand at any time prior to a final court determination. A hearing is required after which the probate court determines the amount and how contribution will be enforced.

The amendments that became effective in 2014 substantially changed how the elective share is computed in South Carolina. Any assets claimed as part of the homestead allowance under S.C. Code §62-2-401 are included in those that are counted as going to the surviving spouse, as well as those passing under life insurance policies to the surviving spouse, plus any assets he or she would have received but for making a disclaimer or renunciation, the amount he or she receives as beneficiary of an IRA, or as beneficiary of a trust created in decedent’s will or as beneficiary of a revocable living trust created by decedent. Additional provisions are complex.

Regarding Medicaid eligibility the states vary how they interpret use of a power of attorney or court order to claim the elective share. SC is among the states that require action be taken to claim an elective share, unless provisions are made for the institutional spouse pursuant to a special needs trust in a will that meets both the required 1/3 distribution and upon the surviving spouse’s death the balance in the trust is payable to the State in an amount equal to the State’s expenditure for Medicaid. SC will assess penalties and disqualification for Medicaid benefits if the elective share is not satisfied in an acceptable way. Similar results can occur if the institutional spouse or his or her agent files a disclaimer to avoid receiving a bequest. The disclaimer is considered an uncompensated transfer.

You really need to consult with an attorney knowledgeable in estate and probate law if you are thinking of claiming an elective share.

WRITTEN BY LINDA KNAPP

MY MOM’S POWER OF ATTORNEY WAS PREPARED SOME YEARS AGO IN ANOTHER STATE. WHEN I TOOK A COPY TO HER LOCAL BANK IT WAS REFUSED. AMONG OTHER THINGS I WAS TOLD IT WAS OUTDATED. DOES MOM NEED TO HAVE A NEW ONE PREPARED?

scarletccarter@gmail.com — Thu, 29 Nov 2018 10:18:02 +0000

It is always a good practice to have out-of-state legal documents reviewed when you establish a new domicile and it is not unusual for there to be problems with a document.

The concept of a durable power of attorney was first adopted into the Uniform Probate Code in 1969 as a modest means of planning for surrogate decision making. Wealthy families had long relied on trusts. Over the years many issues arose with use of the documents that required clarification. Effective January 1, 2017 South Carolina adopted many of the updated provisions of the Uniform Probate Code to govern financial powers of attorney. Provisions in the new code grandfathered in the validity of previously executed powers of attorneys and those created in other states that conformed to the law of the other jurisdiction in which its meaning and effect would be determined. That being said, one problem could be the copy you took to the bank was not certified or the certified copy was old. Normally banks like to see certification within six months of the date of presentment. The original could be re-recorded in the county where Mom now lives and must be recorded if she is no longer competent. I recommend a notarized Affidavit be attached as a cover that states Mom now resides in Aiken County, South Carolina and she can then sign to ratify the prior document as written. The Affidavit will not cure any defects in the underlying document or a current inability for her to sign if she is no longer competent.

There is a section in the new code outlining how and for what reasons a bank or person can refuse to accept a power of attorney. The law requires that the bank either acknowledge or request a certificate, a translation or opinion of counsel within seven business days of presentment. Upon receipt of the certification or opinion the bank then has five business days to accept the power of attorney as valid. The bank is not required to accept the document if it knows the principal has revoked the authority of the agent or knows someone has in good faith reported to an appropriate state agency possible physical or financial abuse, self-neglect, exploitation, or abandonment by the agent of his or her duties. Of course the authority the agent is trying to utilize to transact business on behalf of the principal must be expressly permitted under the terms of the document. There are other good faith grounds listed in the statute for denying acceptance of a power of attorney.

Failure to acknowledge a valid power of attorney can be grounds for a court order and the award of all attorney’s fees and expenses.

Let an attorney review the facts of your situation and review your mother’s existing power of attorney. It may be an easy fix or a more complex situation. New powers of attorney prepared in South Carolina require specific language and should be prepared by those that stay current in this area of the law.

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, VA benefits, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 11/2018

WRITTEN BY LINDA KNAPP
You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

I AM CONFUSED IS THERE MORE THAN ONE KIND OF PROBATE IN SOUTH CAROLINA.

scarletccarter@gmail.com — Wed, 19 Sep 2018 10:32:58 +0000

No and yes. Probate is a court procedure by which a will is proved to be valid or invalid and then the terms of that document are applied to the estate situation. Probate is also the procedure for administration of an estate under the State of South Carolina intestacy laws when the decedent died and there is no will. Even though the situations can be very different there is still only one body or system of law relating to all matters which the probate court handles, although the circuit courts do have concurrent jurisdiction. In short it is best to think of probate as a process with a fair number of forms for someone to complete and file.

Depending on the factual situation there are four ways to address probate administration. Which way is right for your family situation will likely need to be determined after a detailed discussion of whether or not there is a will, how assets are titled, what bills are owed, and if any litigation is expected, such as when someone dies as a passenger in a car accident. Any kind of probate can have pitfalls for the unwary. An experienced attorney can best advise you on the best course of action.

Informal probate is probably the administrative procedure most people are familiar with. It is commenced by the person applying to be made the personal representative (the new term for executor or executrix of the will) completing and filing the mandatory petition that contains answers to certain required allegations, along with a death certificate and the original Last Will and Testament, any original codicils and personal property memorandum(s). The Probate Court may request other documents such as a deed or paid funeral bill in order to verify the answers in the petition before going forward. Informal probate can be used with a will or when someone has died intestate (i.e. without a will or the will is not valid for some reason, such as lack of proper execution). However the intestacy situation requires additional forms known as Renunciations to be filed by all other heirs-at-law with equal or greater priority consenting for the petitioner to serve as the personal representative. Informal administration is generally conducted without hearings, but hearings could be required if you sell real property or the distribution of assets is contested by beneficiaries, heirs-at-law or creditors.

Summary administration starts like informal probate but allows the Personal Representative who is also the sole devisee or heir-at-law or when the personal representatives and devisees are identical to notify creditors, file an Inventory and a statement that will automatically close the estate after nine (9) months, if no claims are filed or additional action by the personal representative is required. The total value of the estate must be less than $25,000 after liens, exempt property, administration costs, reasonable funeral expenses and necessary medical expenses of the last illness are paid. Your lawyer or local probate court staff can advise if this is an option for you.

A different summary administration is available when there are no known assets and for some reason it is deemed wise to not only file the will, but still probate the estate. Again the probate court is apt to alert you to your eligibility to proceed with this form of administration.

An Affidavit for Collection of Personal Property pursuant to Small Estate Administration is appropriate for estates that have no real property and less than $25,000 in assets after payment of the funeral bill AND at least 30 days has passed since decedent died and the person(s) seeking payment or delivery of tangible personal property is entitled to the same either pursuant to a valid will or by intestacy. This may be used when a trust holds most assets or most assets are joint with right of survivorship between spouses and one or more assets of a small value are solely titled in the name of the decedent, for example a used car, some stock and/or a checking account.

Formal administration or Part 5 Administration requires close supervision by the probate court, notice to interested parties, and often motion and multiple hearings. Formal testacy can be an original proceeding to probate will. It can also confirm whether a prior informal probate was correct or reverse or overrule it. Part 5 Administration can be used to block an informal probate which is pending, secure a declaratory judgment as to either partial or total intestacy and in that connection to determine who are the heirs in the intestacy, or establish that a will has been lost, destroyed or is unavailable. An attorney knowledgeable with probate administration, wills, trusts and estates should be used when Part 5 Administration and litigation is involved.

Probate administration typically takes 1 year, but it could be longer.

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 9/2018

MISTAKES IN WILLS

scarletccarter@gmail.com — Wed, 11 Jul 2018 15:36:21 +0000

Q. What mistakes should a person avoid when doing a will?

A. I have chosen the five[i] following mistakes to avoid.

NOT HAVING A WILL IN THE FIRST PLACE IS A BIG MISTAKE PEOPLE MAKE. They think they have nothing worth addressing and so they don’t make a will. Or they might believe some bad luck will immediately follow such that they will die soon after making the will. Superstition. A will is a gift you give your love ones. Don‘t focus on money and things. Focus on clear statements that create peace of mind, express your generosity in directing personal belongings, and leave no confusion and or misunderstandings. Sad as your passing may be, planning via a will reduces stress for the ones who are left behind.

THE SECOND MISTAKE IS NOT SHARING INFORMATION. Even with a will, it is very difficult to properly administer an estate if no one can find your assets. Most of us like to keep our finances and bills private, but it is helpful to those left behind if your affairs are at least documented and organized. I tell all personal representatives to act like a detective. Check drawers, files, banks, and the mail over several months and remember some statements come quarterly, 1099s and other tax information come at the end of January.

THE THIRD MISTAKE IS GETTING SOMEONE TO MAKE A WILL WHO LACKS MENTAL CAPACITY. Oral wills are not valid in South Carolina. And death bed wills made when grandpa can barely make an X and is on some strong pain medication is highly questionable. The situation is even more questionable when family members don’t get along. Likely you, the beneficiary, will be unable to testify at the hearing because of the SC Dead Man Statute, therefore the testimony of the drafting attorney is critical.

THE FOURTH MISTAKE IS MAKING HANDWRITTEN EDITS TO THE WILL. A will is valid in SC only if it is signed in front of two witnesses, one of which is a notary, and contains certain factual allegations that there has been no undue influence etc. While the testator can cross out provisions in a will, any portion you think you are adding, must in fact be in writing and properly witnessed. This rarely happens unless a true codicil or new will is created with all the execution formalities required by law being followed.

THE FIFTH MISTAKE PEOPLE MAKE WHEN CREATING A WILL IS NOT COORDINATING BENEFICIARY DESIGNATIONS WITH WILL LANGUAGE. If you want life insurance to be used first for your funeral, then it is important to understand your will has no impact whatsoever on the insurance company. The Company will pay to the named beneficiary, who may or may not use it for burial purposes and who may seek reimbursement for any monies spent on behalf of your estate.

Likewise, you may have a nice nest egg in assets now, but twenty years from now you may have a lot, lot less. Leaving exact dollar amounts could mean someone you thought would get a lot in fact ends up getting nothing. Percentages with caps are much safer.

[i] Credit to Minnesota Attorney Douglas P. Radunz for his article on “The Ten Most common Mistakes in Estate Planning,” that got me thinking.

THE FIRST STEPS TO TAKE AFTER A DEATH

scarletccarter@gmail.com — Tue, 23 Sep 2014 15:51:45 +0000

Death is a part of life – but for the surviving family it is a time of stress, both emotional coping with loss and knowing what to do to handle the paperwork and the practicalities of what happens when a family member dies.

1 – Call a funeral director and the person’s pastor – These professionals will help with the many choices to be made. Often older people have a prepaid funeral plan or have created burial instructions – look for these directives before making plans. When setting the date for services, keep in mind travel arrangements that close family and friends may need to make.

2 – Contact close friends and family and employers – Speak to key people who can contact others. You may want to change your voice mail or send an e-mail with answers to questions about the details of the memorial services and where a donation in lieu of flowers could be made.

3 – Make burial arrangements – The funeral director can help you with burial arrangements, but note that you will want to check to see if prior arrangements or any special requests have been put in writing by the decedent. Your local VA office or Veterans group may need to be contacted. (See Attachment A. for more VA details)

4 – Write an obituary – You should consider where it should be placed – a local paper, a state publication, newspapers where the person once lived, alumni publications.

5 – Plan a reception – If you are having a gathering to celebrate a life, you may need help with food or a photo display. Delegate to a friend or family member who wants to help as much of the work as practical. There are some details you may want exclusive control over.

6 – Find the original Will – Note only about 30% of the U.S. population has written a Will – there may not be one to find, in which case the law of the state the person lived in when they died will determine who gets what property. If need be, call the decedent’s attorney and local law firms.

7 – Make like an accountant – If you are named as Personal Representative in the Will or you are the surviving spouse, you will need to gather all financial information. First, look to the mail and monthly statements – put each in a separate file compartment so you are aware of the assets. Some people use automatic withdrawals from checking, have payments set up on credit cards, and some get statements intheir e-mail and pay online. Next place, review the tax return – are assets listed you don’t get monthly statements for. Third, keep records of all bills being paid. At the very beginning you may not have access to the decedent’s funds, so one or more people may be making loans to the estate by paying expenses – these should be repaid as soon as the Personal Representative has access to the funds.

8 – Contact the person’s employer or former employer – There may be employer provided death benefits. If the person has retired and gets pension benefits, a former employer should be contacted as well.

9 – Watch the mail – After the initial monthly statements, other asset information may eventually arrive by mail. For assets that only report once a year (life insurance dividends for example), may give statements in early February for income tax return preparation, so you may find additional information then.

10 – Pay the bills – You can call and advise that you don’t have access to the funds if bills will be delayed. This will also usually get any interest charges waived. Keep good copies of all bills paid as these will be reflected on the estate tax returns.

11 – File tax returns – At a minimum, a final income tax return (Form 1044) on the decedent may need to be filed with the IRS and State. Depending on the state your live in, the size of the estate, and who the beneficiaries are, you may also have to file one or more Federal Estate Tax Returns.

12 – Consult an attorney – Especially if this is the first estate you have ever handled. Attorneys that do probate administration can quickly identify potential problems – like time shares out of state, and heirs’ property that may need professional attention. Being a Personal Representative is a temporary job – with all the responsibilities of a real job, but one for which you may have no training. When you partner with a professional, they will help map out the estate administration process and assign responsibilities between the estate attorney and the Personal Representative. The Personal Representative can choose what actions they feel comfortable handling, and delegate the difficult ones to the professionals. These will keep costs down. Stock, business assets and real property may have to be transferred.

ATTACHMENT A:

BURIAL ARRANGEMENTS FOR VETERANS

Burial Benefits Available from the National Cemetery Administration

Requests for burial in a Department of Veterans Affairs (VA) national cemetery cannot be made via the Internet. The VA does not make funeral arrangements or perform cremations. Families should make these arrangements with a funeral provider or cremation office. Any item or service obtained from a funeral home or cremation office will be at the family’s expense.

For Burial in a National Cemetery

Burial benefits available include a gravesite in any of our 131 national cemeteries with available space, opening and closing of the grave, perpetual care, a government headstone or marker, a burial flag, and a Presidential Memorial Certificate, at no cost to the family. Some Veterans may also be eligible for Burial Allowances. Cremated remains are buried or inurned in national cemeteries in the same manner and with the same honors as casketed remains. Burial benefits available for spouses and dependents buried in a national cemetery include burial with the Veteran, perpetual care, and the spouse or dependents name and date of birth and death will be inscribed on the Veteran’s headstone, at no cost to the family. Eligible spouses and dependents may be buried, even if they predecease the Veteran.

For Burial in a Private Cemetery

Burial benefits available for Veterans buried in a private cemetery include a government headstone or marker, a burial flag, and a Presidential Memorial Certificate, at no cost to the family. Some Veterans may also be eligible for Burial Allowances. There are not any benefits available to spouses and dependents buried in a private cemetery. You may want to ask the following questions when preparing for burial in a private cemetery: When responding to an offer of a “free” gravesite for Veterans, ask if there is a requirement to purchase an additional gravesite. If an additional gravesite is required, where will it be located and what is the cost? What type of trust fund does the cemetery have to protect buyers? Ask if there are restrictions on the type of headstone or marker that can be used to mark the grave. Does the cemetery require a special marker base to be purchased prior to ordering a free government marker for a Veteran’s grave?

Is there an additional cost for the placement, setting or care of a free government headstone or marker? Is it more than if a private headstone or marker is purchased?

Is an outside container (usually called a “vault” or “grave liner”) required and how much does it cost?

Know what you are receiving and what is required by the company and have them put it in writing prior to burial. We suggest that if burial will be in a private cemetery and a government headstone or marker will be requested for the Veteran’s grave, that the family complete, in advance, VA Form 40-1330, Application for Standard Government Headstone or Marker for Installation in a Private or State Veterans’ Cemetery and place it with the Veteran’s military discharge papers for use at the time of need. Only an eligible Veteran may receive a government-furnished headstone or marker for placement in a private cemetery. Veteran’s spouses and dependent children are not eligible.

State Veterans Cemeteries

Many states have established state veterans cemeteries. Eligibility is similar to Department of Veterans Affairs (VA) national cemeteries, but may include residency requirements. Even though they may have been established or improved with government funds through VA’s State Cemetery Grants Program, state veterans cemeteries are run solely by the states. We cannot answer your questions or comments about any of these state veterans cemeteries. Please contact the specific cemetery for information.

Presidential Memorial Certificates

A Presidential Memorial Certificate (PMC) is an engraved paper certificate, signed by the current President, to honor the memory of honorably discharged deceased Veterans.

History

This program was initiated in March 1962 by President John F. Kennedy and has been continued by all subsequent Presidents. Statutory authority for the program is Section 112, Title 38, of the United States Code.

Administration

The Department of Veterans Affairs (VA) administers the PMC program by preparing the certificates which bear the current President’s signature expressing the country’s grateful recognition of the Veteran’s service in the United States Armed Forces.

Eligibility

Eligible recipients include the next of kin and loved ones of honorably discharged deceased Veterans. More than one certificate may be provided.

Application

Eligible recipients, or someone acting on their behalf, may apply for a PMC in person at any VA regional office or by U.S. mail or toll-free fax. Requests cannot be sent via email. Please be sure to enclose a copy of the Veteran’s discharge and death certificate to verify eligibility, as we cannot process any request without proof of honorable military service. Please submit copies only, as we will not return original documents.

If you would like to apply for a Presidential Memorial Certificate, VA Form 40-0247, Application for Presidential Memorial Certificate, Instructions for Ordering a PMC Using our Toll Free Fax Line (800) 455-7143, or if you have already requested one more than sixteen (16) weeks ago and have not received it yet, please call (202) 565-4964 to find out the status of your request. Please do not send a second application unless we request you to do so.

If you have any questions about a certificate you have received, a request you have already sent in, or about the program in general, please use the “Contact Us” link at the top of the page.

Veteran Service Officers and Funeral Homes – If you have questions about the status of a request please contact us at (202) 565-4964. You may also send request for status by email to pmc@va.gov.

We do not administer to other VA programs and we do not have access to military documents or records.

For assistance with other VA benefits or records please use the “Contact Us” link at the top of this page or you can call your closest VA Regional Office at (800) 827-1000.

Burial Flags

A United States flag is provided, at no cost, to drape the casket or accompany the urn of a deceased Veteran who served honorably in the U. S. Armed Forces. It is furnished to honor the memory of a Veteran’s military service to his or her country. VA will furnish a burial flag for memorialization for each other than dishonorable discharged.

Veteran who served during wartime
Veteran who died on active duty after May 27, 1941
Veteran who served after January 31, 1955
peacetime Veteran who was discharged or released before June 27, 1950
certain persons who served in the organized military forces of the Commonwealth of the Philippines while in service of the U.S. Armed Forces and who died on or after April 25, 1951
certain former members of the Selected Reserves

Generally, the flag is given to the next-of-kin, as a keepsake, after its use during the funeral service.

When there is no next-of-kin, VA will furnish the flag to a friend making request for it. For those VA national cemeteries with an Avenue of Flags, families of Veterans buried in these national cemeteries may donate the burial flags of their loved ones to be flown on patriotic holidays.

Generally, the flag is given to the next-of-kin, as a keepsake, after its use during the funeral service. When there is no next-of-kin, VA will furnish the flag to a friend making request for it. For those VA national cemeteries with an Avenue of Flags, families of Veterans buried in these national cemeteries may donate the burial flags of their loved ones to be flown on patriotic holidays.

You may apply for the flag by completing VA Form 21-2008, Application for United States Flag for Burial Purposes. You may get a flag at any VA regional office or U.S. Post Office. Generally, the funeral director will help you obtain the flag.

Headstones and Markers

The Department of Veterans Affairs (VA) furnishes upon request, at no charge to the applicant, a government headstone or marker for the unmarked grave of any deceased eligible Veteran in any cemetery around the world, regardless of their date of death.

For eligible veterans that died on or after Nov. 1, 1990 and whose grave is marked with a privately purchased headstone, VA may also furnish a headstone or marker to supplement the graves or a Medallion to be affixed to the privately purchased headstone.

Flat markers in granite, marble, and bronze and upright headstones in granite and marble are available.

Bronze niche markers are also available to mark columbaria used for inurnment of cremated remains.

Note: There is no charge for the headstone or marker itself, however arrangements for placing it in a private cemetery are the applicant’s responsibility and all setting fees are at private expense.

Burial Allowances

VA burial allowances are partial reimbursements of an eligible veteran’s burial and funeral costs.

When the cause of death is not service related, the reimbursements are generally described as two payments:

(1) a burial and funeral expense allowance, and (2) a plot or interment allowance.

Service-Related Death

VA will pay up to $2,000 toward burial expenses for deaths on or after September 11, 2001. VA will pay up to $1,500 for deaths prior to September 10, 2001. If the veteran is buried in a VA national cemetery, some or all of the cost of transporting the deceased may be reimbursed.

Nonservice-Related Death

VA will pay up to $300 toward burial and funeral expenses and a $300 plot-interment allowance for deaths on or after December 1, 2001. The plot-interment allowance is $150 for deaths prior to December 1, 2001. If the death happened while the veteran was in a VA hospital or under VA contracted nursing home care, some or all of the costs for transporting the veteran’s remains may be reimbursed.

You can apply by filling out VA Form 21-530, Application for Burial Benefits. You should attach a copy of the veteran’s military discharge document (DD 214 or equivalent), death certificate, funeral and burial bills.

They should show that you have paid them in full. You may download the form at www.va.gov/vaforms.

Burial at Sea

The National Cemetery Administration cannot provide burial at sea.

For More Assistance: If you have any questions about the Burial at Sea program, please contact the United States Navy Mortuary Affairs office toll-free at (866) 787-0081. Or contact the Department of the Navy for information. Active duty members and Veterans buried at sea may be eligible for a government-furnished headstone or marker.

FOR MORE INFORMATION WRITE, CALL TOLL FREE OR VISIT THE WEB SITE:

U.S. Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

1-800-827-1000

www.cem.va.gov

MY FATHER, AGE 71, DIED OVER A MONTH AGO WITHOUT A WILL.

scarletccarter@gmail.com — Tue, 23 Sep 2014 15:48:48 +0000

The daughter of his sec-ond wife is giving his personal items, like guns and tools, away without consulting me and my stepmother, age 81, refuses to answer my calls. My Dad and I were very close and it hurts to know I will have little to nothing passed down to me, even pictures of my childhood. I know some accounts and property were jointly owned and it was a long marriage of 20 plus years, but Dad had a retirement plan and 401K solely in his name. What rights, if any, do I have as the only biological son still living?

Stories of families in conflict following the death of a loved one are common, even when there is not the added prob-lem of stepsiblings. It may seem petty and foolish from a dis-tance, but I honestly believe the hurt feelings are real and both law and custom honor the expectation of an inheritance from our parents no matter how modest. Things – Grandpa’s gun passed down through the generations along with a story of valor in either pro-viding for a family by hunting or serving his country during time of war symbolize courage and values proudly past from one generation to another. An antique chair once a wedding present from someone famous help us feel the kind of romance and marital love that last for time and all eternity. And Mother’s china preserves our precious memories of togetherness at the holidays. Often individuals at odds with one another trace the root of the argument back to how things changed when Dad married again and how a step-parent favored their own child, or how the baby in the family was pampered and coddled to the child’s own detriment so that he/she grew up to make poor financial and interpersonal decisions. Sometimes there are real bullies with a history of manipulation and abuse, or mental disor-ders or disability involved and the other children feel burdened at having to accommodate or care for a sibling their whole life. There is an old saying that “Money is the root of all evil,” but I find the expectation of receiving some money is not always about greed, but more about an internal sense of fairness and equity, which principles are not identical, and a real world sense of security which money provides.

Under South Carolina intestacy law biological children are entitled to ½ of the probate estate of a parent and the surviving spouse is entitled to the other ½. Those joints accounts are likely not part of the probate estate, but the 401K you mentioned and guns probably are. As 30 days have passed since your father’s death you can file a petition with the probate court in the county where he resided or owned real property to be named the personal representative of your father’s estate. You will also need to file a death certificate and pay the filing fees. However, his surviving spouse has priority for ap-pointment under the law and she can also file and nominate someone to serve in her stead, even your stepsister. You may not ultimately be appointed, but by forcing the estate into probate administration you will be able to learn about the exact nature of your father’s assets and possibly be able to retrieve items distributed without authority. You certainly want to alert the judge to this problem and provide a list of the missing items. Hopefully you can work out a private agreement on distribution of those items dear to your heart. The probate code favors in-kind distribution and probate judges are generally favorable to reasonable requests for personal items. YOU NEED TO TALK WITH AND HIRE AN ATTORNEY because you mention predeceased siblings who might have had children that would share an inheritance with you. These are court proceedings and the probate judge and her staff cannot give you legal advice or make appropriate motions for relief on your behalf.

MY FRIEND HAD DIFFICULTY GETTING ACCESS TO HER HUSBAND’S ONLINE INFORMATION AFTER HE PASSED.

scarletccarter@gmail.com — Tue, 23 Sep 2014 13:54:15 +0000

My friend had difficulty getting access to her husband’s online information after he passed. What rights, if any, does a spouse have to online stuff?

One of the hot topics in estate planning is digital assets. Digital assets are part of most of our lives to some degree, for example:

Passwords to online banking and business accounts
Facebook
Email accounts
Web pages
Domain names
Blogs
YouTube
Twitter
Digital art and recordings
Bitcoins (a digital currency)
Dropbox and other cloud storage services
All those books you download to read on your Nook/Kindle
Suzanne Brown Walsh, head of the Uniform Law Commission’s Fiduciary Access to Digital Assets Drafting Committee, and her renown legal colleague Conrad Teitell write that “defining digital assets is a bit like nailing jello to a wall, because the digital world is constantly changing.”[i]

I think of digital assets as electronic records that a person is entitled to access through a tangible device like a computer, smart phone, tablet or server. Such assets are subject to Terms of Service Agreements (TSA), which generally are take it or leave it contracts where the consumer has no chance to negotiate terms of use between his or herself as the online account holder and the account custodian. Yahoo!’s TSA prohibits all postmortem transfers and access. Facebook will allow a personal representative or family member to access content with a court order via a “Special Request”. Once memorialized no one else is allowed to log in to the site. The entire account can be removed from Facebook. Amazon’s Kindle and Apple’s iTunes allows account holders only to download book and music files, but prohibits transfers or sales. Death is not specially mentioned in Apple’s TSA and I’ve not personally heard how Apple handles bequeaths in wills, but leaving someone your iTune music could easily be considered a transfer. Video sharing services like Instagram and Vine have policies to remove the account when notified of someone’s death. Google adopted an “Inactive Account Manager” option last year, which you might want to research. Some cloud storage services could be tied to a person’s work and the employer or business might have exclusive rights to those accounts.

While significant monetary value could be attached to a digital asset, often for family its just a matter of needing to protect and manage personal finances under a durable power of attorney or in a conservatorship, and after death to determine who and how such assets should be distributed under a will or the intestate statutes.

My brother-in-law passed in August 2013 just months after learning he had stage 4 lung cancer and his grieving widow found comfort for many weeks after his death from his many online friends and business associates some as far away as Australia. She was delighted when she finally figured out a password and got access to his guitar recordings. The emotional desire to archive or make a permanent copy of pictures, follow a thread of messages, selfie videos, etc. can be great, and currently not always possible unless the survivor has access to passwords, account numbers and encryption information. So be sure to record and tell someone you trust what your usernames and passwords are. Obviously this record will need to be updated. There are online services and apps for handling this kind of private information.

There are commercial services that exist, so a personal representative can show a death certificate and fiduciary letters from the probate court in order to work through only one service provider rather than trying to deal with multiple online account businesses.

It’s not clear yet in South Carolina and many other states whether digital assets can uniformly be left to beneficiaries in a will or if they can be a nonprobate transfer, like a payable on death bank account. Nor is it clear how state law will combine with federal laws that protect privacy, avoid ID theft, and ensure that copyright and data protection statutes are not violated.

Estate planners are increasingly asking their clients about digital assets and ad hoc trying to help them plan. There could be some digital records the owner wants destroyed at death without viewing by family. If digital assets are an issue that needs to be addressed by you and your spouse, your existing estate documents can be modified by adding a limited durable power of attorney to deal with digital assets in the event of incapacity and a codicils to your wills. Both are relatively inexpensive.

[i] “Protecting Clients’ Digital Assets” by Suzanne Brown Walsh and Conrad Teitell, Trusts and Estates, January 2014.