Approximately nine percent (9%) of all existing wills are invalid for one reason or another. If you die without a valid will, you die intestate, and lose control over what happens to your property. This usually also results in your estate paying a lot more to settle your affairs, which leaves less assets for your heirs. Generally estates settle much faster when you have a valid will that names people, charities, or other institutions that you want to inherit your property.
What kind of wills are there and how do I know if it is valid? Most commonly, to have a valid will, people have a formal will drawn up and executed. This consists of a typed will that specifies where your property goes, who will settle your estate, who will care for your children if they are minors, and who will administer any trusts the will may establish. Wills may also be handwritten (holographic wills) or oral. Handwritten and oral wills are not always valid and may only be considered valid in certain circumstances.
If you are married and die intestate, your property will go to your spouse and any children that you have. Each state, including North Carolina, has a specific formula to determine what percentage your spouse and children receive. If you have children from different relationships, they may be entitled to inherit as well, which may lead to an outcome you would not necessarily favor.
If you are not married, your relatives will inherit your property. In these cases, what you may have intended to go to close friends, charities, or an educational institution, may end up going to a distant relative that you may have never had a relationship with. If you die without a will and have no relatives, your estate will likely escheat to the state where you live. Thus only unmarried people without children and without property can justify not making a will; otherwise, you need to have a will in place.
About half of Americans die intestate. Many of these people leave large estates and have minor children. To have a valid will in North Carolina, you need to execute the will with two witnesses and a notary. If you need to have a will drafted, or have an estate planning attorney review your will to ensure that it is valid, contact Adkins Law to schedule a free estate planning consultation.
North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
Did you know that having a will means probate, and potentially probate court? Without an estate plan, your estate cannot be settled without the delays and court fee costs - plus, your assets will be a matter of public record. With an estate plan, you can avoid the probate process entirely. Not only does this save your family legal costs and attorney fees, it makes the process much easier for your spouse and family.
Contempt of court refers to actions that challenge a court’s authority, cast disrespect on a court, or impede the ability of the court to perform its function. Contempt takes two forms: civil contempt and criminal contempt.
The most common form of civil contempt happens when someone fails to adhere to an order from the court, resulting in a violation of the rights of a private party. Usually, the injured party is the one to file an action for civil contempt. For example, failing to pay court ordered child support may lead to punishment for civil contempt. The injured party in this scenario would be the parent who has not yet received the court ordered child support payments.
Civil contempt sanctions are commonly used to coerce such a person into complying with a court order the person has violated. Unlike criminal contempt, which aims to punish the act, civil contempt has one of two goals. The first goal of civil contempt is to reinstate the rights of the party who was wronged by the failure to fulfill the court’s order. The second is to simply move an underlying proceeding along. When either of these goals is met, civil contempt sanctions typically end.
Criminal contempt charges, on the other hand, are punitive. This means that they serve to deter future acts of contempt by punishing the wrongdoer. An individual that has been incarcerated for criminal contempt cannot secure their own release by deciding to comply with the court; however, they are given the same constitutional rights guaranteed to criminal defendants.
Criminal contempt charges become separate charges from the underlying proceeding. Unlike civil contempt sanctions, criminal contempt charges have the potential to continue after the underlying case has been resolved. Criminal contempt charges may occur directly or indirectly. In order for one to occur directly, the act must take place in the presence of the court. In order for one to occur indirectly, the act must take place outside the presence of the court.
A living trust, sometimes call a revocable trust, is a written legal document through which your assets are placed into a trust for your benefit during your lifetime.
Why Do I Want This?
In the State of North Carolina, a living trust is a great estate planning tool that allows you to have your assets owned by your trust during your lifetime and distributed after your death, or while you are still living. This type of trust is very flexible and provides you with the capability to make changes as you choose. A living trust will keep your assets from having to go through probate. Probate is the court process in which a will is verified and carried out. This process can take months to accomplish and cost copious amounts of fees. Also, having the ability to bypass probate means that your assets can be distributed immediately after your death, rather than after the entire probate process.
How Does It Work?
In order to create a living trust in North Carolina, you must complete the trust document and sign it in front of a notary. After completing the trust document, you must then transfer ownership of your assets into the trust for it to be affective. You, the grantor, will be the one in charge of setting up your living trust. When you establish such a trust, your assets will be owned in the name of the trust. In order to gain as much benefit from this trust as possible, it is advised to transfer all of the assets you can into the trust. This trust will be managed during your lifetime by the trustee. More often than not, that trustee is you. Along with the initial trustee, you must name a successor trustee to take over the trust after your passing. The successor trustee will then be in charge of continuing to manage your assets, as well as distributing them to your beneficiaries according to the terms you specified.
The majority of Americans have heard of estate planning and know that it’s an important thing to think about before tragedy strikes. However, most people underestimate the value of their estates because they do not fully understand what an estate is and what it is comprised of. An estate is comprised of everything that an individual owns: a car, home, other real estate, checking and savings accounts, investments, life insurance, personal possessions. No matter how large or how modest, everyone has an estate and something in common, these material possessions get left behind when they die. By definition an estate plan the anticipatory act of preparing for the transfer of an individual’s wealth and assets after his or her death.
The Advantages of Having an Estate Planning Attorney
It is no secret that estate planning attorneys can be a costly investment. Some attorneys charge hundreds and sometimes thousands of dollars for an estate plan while legal document preparation companies charge as low as four hundred dollars. However, hiring an attorney who specializes in estate planning can be advantageous for a plethora of reasons.
First and foremost, and estate plan is an important legal document that will most likely effect an individual’s family for generations. With a document of this importance, it is best to trust an attorney who specializes in estate planning. Secondly, legal document preparation companies create attorney drafted legal documents that are similar to question and answer worksheets. Documents that are drafted in this fashion, are not tailored to a person’s specific situation. Though these documents are legally binding, due to their impersonal nature, there are key elements that can be missed. For example, an estate planning attorney will counsel individuals by listening to their concerns and goals for their families and future generations. A knowledgeable attorney will utilize their background in family law, community property, and real estate and taxes in estate planning meetings with their clients. Finally, at the conclusion of estate planning meetings attorneys will ask about the outcome of decisions that their clients have made to ensure that they feel prepared and empowered to provide for their families with their completed estate plan.
Funding a Living Trust
Upon meeting with an attorney and completing an estate plan, it’s important to begin funding the living trust. A living trust is funded when it owns something, real-estate, bank accounts, a business, or other personal property. A living trust owns something by transferring the title form the owner as an individual to the owner trustee of his living trust.
Making Estate Plans Bulletproof
Estate planning is an important tool in protecting an individual and their spouse in retirement and in leaving a legacy for an individual’s heirs. It would be a lengthy process to come up with an exhaustive list of the ways to make an estate plan as invulnerable as possible. Instead, listed below are common mistakes that people make when they construct their estate plans:
Most people often associate being convicted of a crime with spending time in jail. Although incarceration is a serious matter, it is only one of the numerous potential consequences that a conviction can have on a person’s life. A criminal record can limit employment and housing opportunities, tear apart families, and block a plethora of other benefits essential to being a productive member of society.
What is an expunction and what does it do?
North Carolina defines expunction as the destruction of a criminal record by court order. The main purpose of an expunction (also known as an expungement) is to restore the individual in the view of the law to the status that he or she occupied prior to the existence of a criminal record. An expunction allows the individual (with rare exception) to deny or refuse to acknowledge a criminal incident has occurred without committing perjury or being deceitful. The primary exception is for purposes of federal immigration.
What makes a person eligible?
Contrary to popular belief, opportunities to expunge a record in North Carolina are exceedingly rare. Generally, expunctions are reserved for first time nonviolent offenses committed more than fifteen years ago, first time offenses committed at the age of eighteen or twenty-two, or a charge that was dismissed or disposed not guilty.
Determining an individual’s eligibility for expunction of a conviction or charge in North Carolina often requires the utilization of two tools.
Types of Expunctions
Currently, North Carolina has twelve expunction types and statues. Each statue has different criteria that makes an individual eligible to apply for that expunction. Most statues have an age stipulation that requires the individual to have been under the age of either eighteen or twenty-two at the time of the alleged criminal incident. An example of this, is the expungement for Misdemeanor Possession of Alcohol (Under twenty-one). The criteria for this expungement as laid out by its accompanying statue, is that the individual must wait two years from the conviction or completion of probation to apply for an expunction. Any misdemeanor or felony convictions during the two years after the alcohol conviction make the individual ineligible for expungement.
Some offenses are harder to remove from an individual’s record than others. In North Carolina, DWI offenses are an example of such an offense. The rationale behind this is because the victims of drunk driving cannot forget the pain that they suffered from DWI therefore, North Carolina ensures that drunk drivers have a hard time erasing the memory of their crime.
Process for Expunction in North Carolina
In North Carolina, there is a six step process for petitioning for Expunction of a criminal record. The six steps are listed below:
Each case is unique, however, the expunction process normally takes about six to nine months to complete.
With it being summer time, many people are planning to go on vacation to the beach, mountains, or lake. When you rent a vacation rental property in North Carolina, you need to be aware of the North Carolina Vacation Rental Act. This Act applies to residential property rented for vacation, leisure, or recreational purposes for fewer than 90 days. Renters must have a permanent residence elsewhere to which they intend to return.
If you own a vacation rental property, to be covered by the North Carolina Vacation Rental Act, you must get an agreement in writing with any tenant. The agreement must clearly state that the rental is covered by the Vacation Rental Act, and that you may evict the tenant using an expedited procedure. The agreement is only enforceable after the tenant signs it, pays money to you or a management company on your behalf, or takes possession of the property.
If you purchase a vacation rental home, be sure to check with the seller in regards to any existing vacation rental agreements. As an owner, you must honor any vacation rental agreements that end within 180 days from when you record your interest in the vacation property with the register of deeds. The seller must inform the purchaser of any rental agreements affecting the vacation property, and provide the purchaser with a copy of any agreements within 10 days of the transfer of the vacation property. As the new owner, you must provide notice to any tenant within 20 days of purchasing the property.
As a vacation rental property owner, you have a duty to maintain the property in a fit and habitable condition. This means that you must comply with all building and housing codes, make any and all necessary repairs, keep the property in safe condition, and provide smoke and carbon monoxide detectors. If the owner fails to maintain the vacation property in a fit and habitable condition, the owner must either provide the tenant with a reasonably comparable property, or refund all payments made by the tenant.
A vacation rental property owner may also require a tenant to pay a security deposit. The security deposit may be charged to cover such things as non-payment of rent, damage to the premises, the cost of re-renting the vacation property if the tenant breaches the rental agreement, the costs of unpaid additional utility charges (ex. pay-per-view movie rental expenses or long-distance telephone expenses), and court costs for terminating a tenancy. The security deposit must be held in a North Carolina trust account throughout the tenancy, and must either be applied as permitted, or refunded to the tenant within 45 days of termination of the tenancy.
As any vacation rental property owner has likely experienced, the vacation property will likely sustain damages at some point by a renter. Vacation rental tenants are responsible for any and all damages, defacement, and/or removal of property inside the vacation property during their stay. These expenses may be covered by any potential security deposit, or the owner may have to pursue a legal action in court to recover damages. The renter is not responsible for damage due to ordinary wear and tear, or acts of nature (ex. hurricane or flooding damage to a beach house).
If a renter violates the terms of a rental agreement while occupying the vacation property, the owner may chose to have the renter evicted. The North Carolina Vacation Rental Act allows an owner to evict a tenant in an expedited process. To qualify for an expedited eviction, the renter must have either overstayed their lease, materially breached a vacation rental agreement that by its terms allows for an eviction, failed to pay rent as required, or obtained the property by fraud or misrepresentation (ex. minor children getting their parents to rent a beach house for Spring Break). To initiate the expedited eviction process, the owner must provide the renter with four hours notice (either written or oral notice will suffice). The owner must then file a complaint with the clerk in the county where the property is located, and have a summons issued by the clerk. A law enforcement officer must serve the summons and complaint on the renter, and the eviction hearing will be held not sooner than 12 hours from issuance of the summons, and not longer than 48 hours from issuance of the summons. If the owner is successful at the hearing, a magistrate will issue an order evicting the renter from the property. The renter will then have 8 hours to vacate the property. If the renter chooses to appeal the eviction order, they must provide a bond in an amount that covers any rent due to the owner, and any damages the owner may sustain as a result of having to cancel other potential rental agreements.
If you are interested in renting your vacation home, it is recommended that you use a vacation rental agreement that complies with the North Carolina Vacation Rental Act. The North Carolina Association of Realtors has developed a form contract (No. 411-T) that meets the requirements of the Act. You may also use your own rental agreement, although you may want to consult with an attorney to review the agreement in detail to ensure that it complies with the vacation rental act. If you wish to discuss owning or renting vacation rental properties in North Carolina, contact Adkins Law to arrange a consultation.