You can amend you existing Last Will and Testament by executing a codicil. A codicil is a document that you draft that amends certain sections of the Will, instead of drafting a whole new will. A codicil can be any length, like it can be 4 pages, 2 paragraphs, a few sentences or a couple of words. To reduce the possibility of a misinterpretation of the codicil you should be try to make simple changes and not complicated ones, in the case that you want to make a number of changes and some of them are complicated you are better off revoking the current will and drafting a new one. A lot of times it is just as easy to create a new will as it is to modify an existing will.
Drafting a Codicil When adding a codicil, you must keep three things in mind: (1) Specify the portions of the Will that are being changed and the changes you wish to make. (2) State that the changes are effective on the date that the codicil is signed. (3) State whether any original provisions of the original Will is affected by the codicil. Two Requirements for a valid codicil: (1) You must sign your codicil in front of two witnesses. There is no requirement that the codicil be notarized in North Carolina. (2) Your two witnesses must sign your codicil. The witnesses do not need to read the codicil. If you want to speak to an estate planning attorney regarding amending a will, contact Adkins Law. We have locations in Lake Norman and Charlotte for your convenience.
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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. By Elspeth Crawford What happens to you after you die is a question with no answer. What happens to your stuff, however, is much more clear. If you own property and assets, you should strongly consider drafting a will. That way you, and not your state government, can decide who gets your property and assets when you die. In most cases, wills are written legal documents, but some states do recognize other types of wills. The legal requirements of each state can vary, so it's essential that your will is drafted and executed properly. The main reason for having a will is to allocate your property to heirs in any way you like. But there are other things you can include such as funeral arrangements, legal guardians for your minor children, and who should serve as executor of your will or trustee of any trusts you create. A Will Must Meet Certain Legal Requirements Most wills are formal documents that instruct how money and property should be distributed to each person named as an heir. Typically, for a will to be valid, you need to have one or two people witness you signing the will and then sign it themselves. The witnesses can be anybody,; they require no special qualifications. In some states, however, wills that are handwritten or simply spoken can be legally enforceable, too. A Will Keeps The Government Out Of It When you die without a will, state laws known as "intestate succession laws" will decide which family members will inherit your estate and in what proportion. In most states, your spouse and children take priority under intestate succession. If you want other people to inherit some of your property, or if you want to leave everything to your spouse and children, but in different proportions than they would receive under your state’s law, a will is one of the best ways to ensure that the state won't make that decision for you. Make It Easier On Your Family The division of an estate after death can bring out many emotions. The slightest differences can result in hurt feeling and recriminations. As divorce becomes more complex and blended families more common, dividing assets has become even more complicated. A typical situation is when you're in a second marriage and have children from your first marriage. In this case, allocating your property purposefully between your second spouse and your children can give you peace of mind and prevent your family from fighting over your possessions. DIY Solutions May Cause More Problems Than Solutions The law surrounding creation of a will is complicated and nuanced. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a trusts and estates lawyer. Take a look at the December 2014 issue of Huntersville Magazine featuring Adkins Law PLLC. Adkins Law PLLC is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area. If you need to speak with a divorce attorney, traffic attorney, or estate planning attorney, contact Adkins Law PLLC. What is a living will? In North Carolina, a living will, also referred to as an Advanced Directive for a Natural Death, specifies what type of health care and medical treatments you prefer if you are unable to direct your health care. Without a living will in place, in the event you suffer from an illness or accident that leads to your incapacitation, you won’t be able to make decisions regarding your health care treatment. When you have a living will, you may specify what health care treatment you desire, even if you cannot communicate this to your health care provider. A living will allows you to direct your health care provider to provide you with the maximum care possible, minimum care possible, or leave the decision to the discretion of an appointed health care power of attorney agent. A health care power of attorney works in conjunction with a living will. This is the document that appoints your health care agent. A health care agent is someone who can direct your health care in the event of your incapacitation. Most people choose their spouse, significant other, relative, or close friend to be their health care power of attorney. In North Carolina, the only requirements for being a health care power of attorney are that you are at least 18 years old and you are not being compensated for your position. If you need legal advice concerning a living will, advanced directive, or health care power of attorney, please contact Adkins Law PLLC to speak with an estate planning attorney in Huntersville NC. Adkins Law is located in Huntersville and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, and the Lake Norman area. WHAT IS A HEALTH CARE POWER OF ATTORNEY? In North Carolina, a healthcare power of attorney works in conjunction with a living will. This is the document that specifies your health care agent, which is the person who will make medical decisions for you in the event of your incapacitation. Your health care agent needs to be someone close to you who you can trust. An estate planning lawyer can help you appoint a health care agent. WHO CAN BE MY HEALTH CARE AGENT? 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. An estate planning lawyer can help you determine who will qualify as your health care agent. WHAT IF I APPOINTED MY FORMER SPOUSE AS MY HEALTH CARE AGENT? In North Carolina, if the principal appoints his or her spouse as their agent, such spouse's authority to act as agent is revoked upon the entry by a court of a decree of divorce or separation. N.C.G.S. 32A-20(c). Speak to an estate planning lawyer at Adkins Law if you have questions concerning health care powers of attorney. Adkins Law is located in Huntersville, NC and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Gaston County, Iredell County, Cabarrus County, and the Lake Norman area. |
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