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?
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.
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.
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.
A guardianship is an important legal tool that allows the Clerk of Superior Court to appoint one person or entity to make decisions on behalf of an incompetent adult (the ward). Guardians are typically appointed in instances of incapacity or disability. Say for example, an individual suffers a tragic accident and is placed in a medically induced coma to sustain further injuries. For the individual to have their personal wishes fulfilled while in a coma, the person must have a durable power of attorney and medical directives already in place prior to the accident. If the individual does not have those documents already in place, the court will appoint a guardian to make both financial and personal decisions for the comatose patient.
Types of Guardianships
North Carolina has three different types of guardianships: guardian of the person, guardian of the estate, and general guardian. Each of these guardianships have different stipulations that limit the guardian’s decision making power. The guardian of the person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. However, a guardian of the person is prohibited from handing the ward’s money. The guardian of the estate is only allowed to handle the ward’s finances and cannot make decisions about the ward’s personal care and well-being. Finally, a general guardian does not have the same limitations as the previously mentioned guardianships. General guardians have the power to make personal decisions for and handle the finances of the ward.
Deeming Someone Incompetent
There is a process to deeming an adult incompetent. First, a petition must be filed seeking to have someone declared incompetent. The person in question is entitled to a jury trial or the matter will be heard before the Clerk of Superior Court. Usually, there must be medical or psychological evidence to assist the jury or Clerk in deciding whether or not the person no longer has the ability to make decisions or care for himself.
Becoming a Guardian
Obtaining guardianship is also a process. Courts make their decisions based on the expressed wishes of the ward. In the event the ward is not able to express his or her wishes, the court will make a decision based on pre-incapacity documents (power of attorney or will). There are requirements that a person must meet in order to be considered by the courts for guardianship. In order to be considered for guardianship an individual must be qualified to serve and be a legal adult with no felonies or gross misdemeanor record implicating dishonesty (bribery, forgery, etc.).
Upon the court deeming that a person is qualified to act as a guardian, it is important that an individual seeks out a qualified family attorney. The attorney can execute a durable power of attorney and a duly probated will. Finally, the last step is to seek out the proper forms to fill out to obtain guardianship.