Estate Planning, Wills and Trusts

In North Carolina, a new husband and wife automatically have new legal rights just by saying “I do.”  Each spouse can share in the estate of the other.  Children also have rights if they were born in the marriage or adopted.  If you have step-children that you wish to share in your estate, you will need a will as they do not have legal rights.   For those with small children, you will want your child to be cared for after your death and you may nominate a guardian for your child and set aside funds for your child’s care and wellbeing.  If you do not make financial arrangements for the money inherited by your minor child, under NC law, the statutory required method will be used.  In order to avoid the court’s involvement in managing the minor child’s monies, you may decide to have a trust be set up to manage the money until an age you feel is appropriate for the child to manage his/her own affairs.  In addition, if you do not have a will, the state laws will govern how and to whom your property and income will be distributed.

If you have a loved one who has special needs, you should strongly consider consulting an attorney to assist you in preparing a will or trust that allows your loved one to have a trust set up to for your loved one and yet not affect that person’s governmental benefits.

Deciding how your assets are handled after death can be a very emotional process. The laws surrounding estate administration and distribution of wealth are complicated. You can meet with an attorney to discuss how you would like your estate to pass to surviving relatives, friends, charities, or any other entity. Your financial concerns might include real property, liquid assets, business interests, stock, benefits, or personal prized belongings.   

You may be interested in a Revocable Trust, sometimes referred to as a “Revocable Living Trust.”  This is an agreement between the person creating the trust (“grantor” or “settlor”) and a trustee.  Under this document, the grantor transfers assets to the trust and provides instructions as to how the assets are to be held and distributed upon the grantor’s death.  Since the trust is “revocable” the grantor has the power to add and remove assets as he/she sees fit.  Sometimes persons who are not attorneys market the sale of Revocable Living Trusts, but you should consult an attorney before you buy one of these products.

Whether something is of financial or sentimental value, or both, it is important that your wishes be carried out within the confines of the law. An attorney can craft a will or trust to protect your interests and the interests of your loved ones and beneficiaries.

Power of Attorney and Healthcare Power of Attorney

A Power of Attorney and a Healthcare Power of Attorney are two different legal documents. There are a variety of reasons to execute a Power of Attorney so that another party can act in your stead if you are unable. For instance, you might live out of state and need a friend or relative or another trusted party to sign a legal document in your extended absence. Alternatively, you might be planning for the possibility that you might have diminished capacity to make decisions in the future, and you want to make sure you appoint the right person to handle your finances.

A Healthcare Power of Attorney determines who can make decisions about your healthcare if you are incapacitated. If you are going to have a serious surgery or want to plan for the onset of diminishing mental capacity, then a Healthcare Power of Attorney appoints a person who can make decisions about what type of medical treatment you receive. You can also have a Living Will that puts certain restrictions on the Healthcare Power of Attorney, requiring the agent, the person you designated to make decisions, to follow your directives.

Deciding which documents to complete, who to appoint, and under what circumstances they apply can be difficult. An attorney can assist you with discussing the documents, drafting the necessary paperwork, finding appropriate witnesses, and making sure the right documents are filed at the Register of Deeds or sent to the appropriate healthcare providers. If you would like to speak with an attorney about your rights, whether you are thinking about documents or if you are someone’s agent, then feel free to call to set up a consultation.

Probate and Estate Administration

When a loved one passes away, the surviving family members are left to pick up the pieces. Whether a person did or did not have a will, it is crucial that the person’s property be handled carefully. Executors and Administrators have very important duties to protect property interests.

Probate is the administration of a person’s estate and is overseen by the Clerk of Superior Court.  A person who has died is called the “decedent.” The person who settles the decedent’s estate is called the “executor” or “personal representative.”  An executor is typically nominated in the decedent’s will, however, the court must approve of the appointment of this nominated person.

The executor’s or personal representative’s is to settle the decedent’s estate.  This includes notifying the beneficiaries, gathering all of the assets, paying debts and distributing assets to the proper persons.  An accounting of all of the decedent’s property must be provided to the Clerk of Superior Court.    The process typically lasts a year, but can take longer depending on the circumstances.