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.
Make sure you have planned ahead for your family by setting up an Estate Plan. Contact us today to schedule your Estate Planning consultation, 704-274-5677.
A living will is a legal document that guides your doctors, and health care agents (selected by you) regarding your wishes for medical treatment in the following situations:
The living will gives you the ability to tell your physicians and doctors your wishes when it comes to life-prolonging measures in these situations listed above. The living will is an essential piece of a person’s estate plan because we never truly know when we might be faced with a life threatening situation, where a living will is necessary.
A health care power of attorney is a legal document that names a person, and sometimes an alternate person who you authorize to make these health care decisions for you, in the instance you are unable to do so by yourself.
By planning ahead, you can make clear to others what type of treatment you want in most medical situations, this makes it easier for your family to make decisions during moments of grief and crisis. By creating and signing these documents it is a way to initiate a conversation with your loved ones about your wishes and is a way to be able to control what happens at the end of your life. We know it may be hard to think about moments where you are unable to make decisions for your health, but that is why it is most important.
A living will and healthcare power of attorney document is part of Adkins Law PLLC Estate Planning packages. Contact us today to find out what packages we offer for Estate Planning, and which is better for your family. Call us or text us to schedule an appointment.
Control distribution of assets – You wouldn’t hand over your car keys to a child who has not had proper preparation driving, and chances are you would not want to hand over all your assets to a teenager either. But if both parents die at the same time, or while their children are still minors, the children would inherit all the assets upon their 18th birthdays. A trust allows you to specify how and when you want your children to inherit.
Protect assets from creditors – Placing an inheritance in a trust ensures that those assets are protected from your heir’s, or their spouse’s, creditors. A properly drafted trust can protect all your assets throughout your beneficiary’s lifetime from divorce, liability, lawsuits, and other judgments.
Protect inheritance from spendthrift heirs – Not everyone is good with money. If your heirs fall into that category, you can use a trust to ensure the assets are not frittered away due to spendthrift behavior.
Provide for children of prior marriage or relationship – You can use a trust to both provide for your current spouse and any children from a previous relationship. By doing so, you can prevent pain, confusion, and arguing, which may exist in blended family situations.
Provide for a special needs heir – Leaving assets outright to an heir with special needs could disqualify them from receiving important government benefits. Leaving those assets in trust bypasses this potential risk.
Avoid probate – Assets can pass to heirs without going through probate by using a trust, saving beneficiaries the time and expense of the probate process. Probate is an expensive, public, and unnecessary court process you can keep your family from having to deal with.
Protect privacy – Once a will is entered into probate, it becomes public record, and anyone may access information on what someone inherited. A trust, on the other hand, is a private document that protects your family’s privacy.
If you need to arrange a consultation with an estate planning attorney,contact Adkins Law or call (704) 274-5677.
When a married couple dies, they are able to exempt a certain amount of their estate from taxes. Portability allows the first spouse who dies to transfer their unused estate tax applicable exclusion to the other, living, spouse. This amount can then be used for their gift or estate tax purposes when the second spouse dies. The exemption amount changes every year due to inflation.
The best way to understand this is as follows:
Margaret and John are a married couple. When Margaret dies in 2011, the executor of her estate makes the portability election. Assume that Margret’s “deceased spousal unused exclusion” (DSUE) amount is $4 million. In 2013, the basic applicable exclusion amount equals $5.25 million, and John dies. Now the applicable amount available to John’s estate equals $9.25 million because he can add the $4 million that was not used by his spouse to his maximum amount.
This is calculated by adding the surviving spouse’s (John) basic applicable exclusion amount and the aggregate DSUE amount from Margaret.
Why does it matter?
The effect of portability is it potentially doubles the estate tax exemption available to the surviving spouse to use for lifetime gifts or at the second death. Because estates are taxed at such a high rate, preserving portability means that the heirs will ultimately be able to receive more money.
Even if your estate is not very large, preserving portability can protect your assets in the future if the surviving spouse experiences a windfall (like winning the lottery!) and is an option that can and should be explored by everyone, even if it ends up not being the best strategy for your estate.
How to utilize portability?
Portability is not automatic, and it is very important that the executor follow the proper protocol. In order to utilize portability, there are several requirements that must be met:
First, an election must be made by the executor of the estate. If an election is not made, portability is forfeited.
Second, the election must be timely filed on or before nine months after the deceased spouse’s date of death. If more time is needed, an automatic six- month extension of time to file the return can be requested through Form 4768. If the deadline is missed and there is no extension, then the couple will not have the benefit of estate tax portability, and this may result in thousands of dollars of unnecessary and avoidable estate taxes.
Third, a complete and properly prepared Form 706 must be filed.
If you are interested in learning more about the portability exception and how it applies to your estate, contact Adkins Law to set up a consult today!
Trusts are only for people with a high net worth!
Trusts can be set up to serve a variety of purposes and aren't only for "rich people". The most common type of trust is a living or revocable trust. A revocable trust is set up so that it can be modified during ones lifetime.
Trusts are Expensive to Setup!
Each state and attorney has its own prices when it comes to trusts. Contact attorneys in your area to get an idea of the cost. Generally attorneys have packages that include more than just a trust. Adkins Law specializes in Estate Planning and would be happy to help you!
You no longer in control of assets held in a trust!
With a revocable or living trust, you maintain complete control over all assets in the trust during your lifetime. Keep in mind, like most estate planning issues, credit protections vary and you should always work with an estate planning attorney to understand all your options.
Trusts are only for cash or financial securities!
Trusts can be set up to hold a variety of assets:
-Privately held interests in a business
Just to name a few!
The primary benefit of putting an asset in a revocable trust is to ensure the assets are distributed according to your wishes.
After I set up a trust, my assets will automatically flow as planned!
This may be true in some instances, however, this is not automatic and you must be careful not to contradict the terms of the trust. Once the trust is set up, retitle assets in the name of the trust.
I don't need a trust if I have a will!
Having a will in place is a great first step into estate planning. But, having a will does not mean your assets are completely secure. Wills can be contested, there is no guarantee that what you want to happen actually will happen if it is just outlined in your will.
It is generally a good idea to name a family member or friend as a trustee!
People often name relatives or family members as their executor of their estate and trustees on a trust. Sometimes this can create a strain on your family dynamics. Acting as trustee and/or executor or a trust and estate can be a large amount of work. You can always consider appointing an third party or corporate trustee to manage the assets and execute the wishes of your trust. My doing this it may alleviate the burden of appointing a family member and instead help in assigning a "neutral" party to act as trustee.
Trusts can be set up to benefit a charity, business organization, or even a pet.
Sometimes it is possible to assign percentages of your trust assets to a organization or charity of your choice. It is recommended you work with an attorney who may be able to assist in establishing the kind of trust that best fits to your needs for your family, maybe even your pets.
Trusts can be powerful and can accomplish a wide range of goals. They can be very difficult and sometimes hard to understand, That is why Adkins Law is here for you! We specialize in Estate Planning and we can work with your family in creating and drafting the Trust Document or Estate Package that best fits your needs for your family. Give our office a call to set up your FREE consultation.
Estate Planning is one of the most important yet neglected aspects of personal finance. When dealing with our own mortality, people tend to procrastinate. It isn't very pleasant to think about death and what will happen to our family and our finances after we pass away. Having a basic estate plan, at the minimum, is essential to ensuring that your family is cared for after you are no longer here and your finances are distributed in the way that you desire. This plays a significant role in reducing stress and frustration for your loved ones in the event of your incapacitation or death.
Below are 4 reasons Estate Planning is so important:
1) Prevents your assets from going to Unintended Beneficiaries
A main component in estate planning is designating places for your assets. This can be your home or your stocks. Without an estate plan, the courts will decide who gets your assets. This is a process that can take years and can get ugly without a clear plan.
2) Protects your Family and Your Children
In order to ensure that your children are taken care of, after your passing. You will want to name their guardians in the event that both parents die before the children turn 18. Without this the courts can step in and make the decision for you. This could potentially determine who raises your child up until they turn 18 years old.
3) Stops your Family from having to Overpay in taxes
Estate planning can reduce all of the federal and state estate taxes or the state inheritance tax. Without a plan this can be very costly to your loved ones if you were to pass.
4) Eliminates the mess when you pass
By creating a plan this enables you and gives you the opportunity to make a plan for your finances and assets after your passing. By planning in advance it ensures that you have made the right financial decisions for you and your family.
If you need to make a plan to protect your family. Adkins Law located in Huntersville, NC can help you. Call today to set up your FREE Estate Planning consultation.
The health care power of attorney is a document that works in conjunction with a living will. It is a document where you can designate someone to be your representative, in the event you are unable to communicate your decisions about your health care. In the most basic form, a health care power of attorney says, "I want this person to make decisions about my health care if I am unable to do so."
This needs to be a person that you trust to make medical decisions on your behalf if you cannot make them for yourself. Most people choose their spouse, partner, relative, or close friend as their health care agent.
North Carolina requires that your health care agent be (i) at least 18 years of age, and (ii) not being compensated for providing you health care. Choosing this person is an important decision, and you should think carefully about who you want to assume this responsibility. This person may eventually be deciding whether or not life support will be in your best interests.
If you are in need of appointing someone as your healthcare power of attorney, Adkins Law may be able to help. Call today to set up a FREE Estate Planning consultation in our Huntersville office.