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.
Do you own a business? Without an estate plan, your family could lose control of the business. With an estate plan, you choose who will own and control the business after you die. Plus, you can avoid having the business and its assets frozen after you die.
Would you prefer that your assets stay in your own family? Sure - who wants to give their hard earned money and the assets they have accumulated over their lifetime to any person outside of their family? Without an estate plan, your child's spouse may end up with your money. If your child divorces, half of your assets could potentially go to that in-law spouse. With an estate plan, you can set up a trust that ensures that your assets will stay in your family, and pass down to your grandchildren.
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.
Constructing a last will and testament is an integral part in planning the distribution of an individual’s estate after their death. In the State of North Carolina, wills give the testator (the person writing the will) the chance to make sure that their spouse, children, other family members, and even pets are taken care of after they die. While embarking on the process of constructing a will, it is crucial that a testator knows and understands the laws associated with wills in their state. Otherwise, the chances of their will being invalid increase. An estate planning attorney is an invaluable tool in the process of constructing a will because they can use their advice and experience to ensure that a will is valid. This article will explore, North Carolina laws regarding wills, the effects of dying with a will and dying intestate, and the different types of wills in North Carolina.
North Carolina Laws Regarding Wills
Every state has its own specific statues when it comes to wills. A will that fails to adhere to North Carolina’s statues are generally considered to be void, making the state dispose of the testator’s property according to the rules of inheritance. This gives the property to the testator’s most immediate kin regardless of the testator’s wishes. For this reason, it is ill advised to simply assume that a will is valid, an attorney can assist an individual in the process of ensuring that their will adheres to North Carolina’s standards. Below are list of laws regarding North Carolina wills:
Effects of Dying with a Will vs Dying Instate
The most important purpose a testator can use a will for is to express how assets such as homes, vehicles, business holdings, and bank accounts should be divided upon the testator’s death. A North Carolina will and testament can also allow an individual to name someone as the legal guardian of their children. In addition to testamentary trust (trust that provides a benefit for people), North Carolina law specifically allows for the creation of trust for the care of animals that are alive during the testator’s lifetime (referred to as pet trust). Such a trust terminates upon the death of the last surviving animal covered by the trust.
A person who dies without a will is called intestate, which will invoke the laws of intestacy. In this state, the shares in real and personal property that go to a surviving spouse also depend on whether or not there are also surviving children or parents. If there are no surviving children or living spouse, then intestacy laws grant shares of the decedent’s closets relative.
Types of Wills in North Carolina
Listed below are a list of wills that are recognized in North Carolina:
A will is a legally binding document that lays out an individual’s after-death plans for his or her property and affairs. It is not required that one has a will, however, if you do not specify what happens to your belongings after you are gone, North Carolina will dispose of your property according to the general rules of inheritance. While you do not necessarily need an attorney while drafting your will, it is highly encouraged in order to reassure you that your will complies with all North Carolina statutes. Creating a will on your own, and having it bring about what you anticipated, can be complicated.
In that state of North Carolina, you must sign your will in the presence of two witnesses. If you are unable to sign your own will, a witness may do it for you. Your witnesses do not have to read the will or know its contents. The law demands that the testator – the person making the will – declares in the presence of their two witnesses that he or she intends to sign the document as a Last Will and Testament. There are no criteria when choosing whom the witnesses are, however, it is preferred that they are two impartial individuals that have no interest in the testator’s estate.
While a valid will does not require any type of seal or notarization, it does allow the testator and witnesses to complete a notarized affidavit at the time the will is signed. A notarized affidavit holds the same legal power as if the parties testified in court under oath. This notarized affidavit will make the will “self-proving,” meaning that when the will is filed after the testator’s death, the court does not have to make a separate inquiry to determine the validity of the signatures of the testator and the witnesses.
North Carolina accepts three different variations of wills. The most traditional will is known as an attested will, which means that the will is typed up as an official document and signed by the testator and two witnesses. The other two formats for a valid will in North Carolina include handwritten and oral wills.
A handwritten will, also referred to as a holographic will, is a valid will in North Carolina as long as the entirety of the will is in your handwriting and is found after your death. A handwritten will is valid without witnesses; however, the testator must still sign it.
A nuncupative will is an oral will made in the presence of at least two witnesses. Majority of States do not recognize oral wills, but North Carolina may if the testator’s death is quickly approaching. North Carolina only permits oral wills for the distribution of personal property – real estate can only be disposed of by an attested or holographic will.
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: