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:
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S-Town is sequel to the podcast Serial that takes place in a rural Alabama town. The story opens with a reporter investigating a son of a wealthy family who has been allegedly bragging that he got away with murder. As the story unfolds, there is a shift in focus from the alleged murder to John B. Mclemore, the star of the show. His eccentric outlook on life and colorful personality, keep the audience wondering what he is going to say next. The tragic death of Mclemore, sparks a nasty feud between Tyler (a friend of Mclemore) and Mclemore’s family. John’s untimely death left behind a plethora of personal belongings, a house, and a mother who had been suffering from dementia. Since John did not create a will before he died and did not arrange care for his mother in his absence, the family and Tyler were left to decide what would happen to John’s belongings and his mother. The rising popularity of this podcast, has made people wonder what would happen if this occurred in their town, who would care for their mother or gain possession of their things if they died without a will?
Dying Intestate If someone dies without a valid will, the legal terminology that is used to describe this circumstance is “dying intestate.” Under the North Carolina intestate succession laws, the person’s assets will go to the individual’s closets relatives. The only assets that are affected by intestate succession laws are assets that would have passed through an individual’s will. Typically, that includes only assets that the individual owns alone, in their own name. Property that an individual has transferred to a living trust, life insurance proceeds, and funds in retirement accounts are all examples of assets that are not affected by interstate succession laws. In addition, under interstate succession, who is entitled to what depends on whether or not the person has living children, parents, or other close relatives when they die. In Tyler’s case, since he is neither a child of John’s nor a blood relative, he would not be entitled to any of John’s possessions. Holographic Will Prior to John taking his own life, he left Tyler a text message saying that he was allowed to have certain items if he ever decides to get rid of them. In North Carolina, a text message does not count as a will. North Carolina recognizes two alternate forms of wills, known as holographic and nuncupative wills. A holographic will is a handwritten, not typed document and must be entirely in the testator’s handwriting. Holographic wills are still valid without witnesses, but it is imperative that the testator signs the document. Guardianship When John died he left behind a mother with dementia. Her deteriorating mental state and old age made her incompetent and unable to take care of herself or her personal affairs. John was her general guardian giving him the power to make personal decisions for and handle the finances of his mother. John failed to make arrangements for her prior to his death, so when he died there was a question of who would care for Johns mother, Mary Grace. Usually, in guardianship documents there are backs listed to take over the care of the ward (the incompetent adult) in the event that something happens to the guardian. If no backs are listed in the documents, then anyone can petition to be the ward’s new guardian. It is usually other family members that petition to be the ward’s new guardian. Decisions are made in the best interest of the ward. In the event that no one comes forward and petitions to be the new guardian, then a public guardian will be appointed by the courts. In John’s mother Mary Grace’s case, John’s cousin was the best person to gain guardianship over her after John died. If you would like to arrange a consultation to speak with an estate planning attorney, contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne for your convenience. What is a durable power of attorney, and why is it important to have one? If you need a durable power of attorney, or would like to speak to an estate planning attorney, Adkins Law can help you. Contact Adkins Law to arrange a free estate planning consultation. Adkins Law has locations in Huntersville and Ballantyne. 1. You determine who gets your property, personal and real, and also who receives your money.
2. Potential arguments between family and friends over who gets what are minimized. 3. You may appoint a guardian for your children. If you do not appoint a guardian, the court will, and that person may not be someone you wish to raise your child. 4. You may appoint trustees for your minor children to oversee the estate they inherited. When you appoint a trustee, you may place specific directions in your will to allow for using your child's inheritance for support, education, and direct how and when your child receives the remainder of their inheritance. 5. You can appoint an executors (or administrator) to determine your assets, pay off any debts, pay any death taxes, and distribute what is left of your estate. 6. If you are an unmarried couple you can ensure that your partner is provided for. 7. If you are separated but not yet divorced your spouse or civil partner may still be able to make a claim on your estate until the divorce is finalized. 8. You can ensure you do not pay more inheritance tax than is necessary. Wills can be utilized to make savings on inheritance tax. If you would like to speak with an estate planning attorney concerning drafting a will, contact Adkins Law. We have locations in Huntersville and south Charlotte for your convenience. A person who dies without a will is referred to have died intestate. The court will distribute the decedent’s estate to the surviving spouse first and then remaining balance will be distributed to the decedent’s descendants by using the Per Capita at Each Generation method. The court follows the intestate rules provided under the North Carolina General Statute (“NCGS”). Spouse’s portion of the decedent’s estate: NCGS 29-14 provides the rules for what portion of real property and personal property the surviving spouse shall receive from the decedent’s estate. Real Property For real property the following rules apply under NCGS 29-14(a). First, if the decedent has no surviving children or grandchildren and their parents are also deceased, then the spouse receives all of the real property. Second, if the decedent has one child or any lineal descendant (grandchild) of a deceased child that has survived them, then the spouse receives only one-half interest in the real property. Third, if there is: two or more children, one child and any lineal descendant of one or more deceased children, or lineal descendants of two or more deceased children that has survived the deceased; then the spouse receives one-third interest in the real property. Lastly, if there are no surviving children or lineal descendants but one or both of the parents survived the deceased, then the spouse receives only one-half of the real property while the remaining portion goes to the surviving parent or parents of the deceased. Personal Property For personal property the following rules apply under NCGS 29-14(b). First, if the decedent has no surviving children or grandchildren and their parents are both deceased then the spouse receives all of the personal property. Second, if the decedent has one child or any lineal descendant (grandchild) of a deceased child that has survived the deceased, then the spouse receives the first $60,000 plus one-half of the remaining balance of personal property. Third, if there is: two or more children, one child and any lineal descendant of one or more deceased children, or lineal descendants of two or more deceased children that has survived the deceased; then the spouse receives the first $60,000 plus one-third of the remaining balance of personal property. Lastly, if there are no surviving children or lineal descendants but one or both of the parents survived the deceased, then the spouse receives the first $100,000 plus one-half of the remaining balance of personal property while the remaining portion goes to the surviving parent or parents of the deceased. Surviving children and lineal descendant’s share: Under NCGS 25-16 provides that the court shall use the Per Capita at Each Generation method to distribute the remaining portion of the decedent’s real and personal property. The Per Capita at Each Generation, provides the initial division of shares of interest is made at the closest generation at which one or more descendants are alive, but the shares of the deceased persons on that generational level are treated as one group and are dropped down and divided equally among the representatives in the next generation. Note that NC does not recognize step-children to take if their step parent dies intestate. However, NC treats half-blood and whole-blood descendants the same. If you would like to speak with an estate planning attorney in regards to drafting a will, please contact Adkins Law for a free estate planning consultation. Adkins Law has offices in Huntersville and Ballantyne for your convenience. |
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