Wills & Estates
Many people are reluctant to talk about estate planning—who wants to think about or plan for their death? The important thing to remember, however, is that no matter your age or health, having an estate plan in place is more for the benefit of your loved ones in the event of an emergency.
The basics of an estate plan are really quite simple, and any work it takes on your end now will pay off in multitudes for your family if you become incapacitated or have an accident. Estate law is complex and full of rules and procedure, and having an estate plan laying out what decisions you want made upon your incapacitation or death will simplify things immeasurably for your loved ones in what will already be an incredibly stressful and emotional time.Estate Plan Basics
A basic estate plan, at a minimum, typically consists of at least three (3) properly executed documents: a will, a durable power of attorney, and a health care power of attorney.
Of these documents, most people are most familiar with the will: It is where you identify where you want your property to go in the event of your passing. If you pass away without a will in place, the distribution of your estate will occur according to North Carolina’s so-called intestacy laws, which provide the default hierarchy of relatives who receive default percentages of a deceased person’s estate. These defaults are frequently different from how people want their assets distributed, which is why having a will is so important.
As life circumstances change—marriage, divorce, children, acquiring new assets—it is extremely important to keep your will up-to-date to reflect these changes. There are very specific procedures that must be followed in order for a will, or edits to a will, to be considered valid under the law. For this reason, it is important to consult with an estate law attorney if you are creating, changing or trying to rescind a will.
On the durable power of attorney form, you appoint a person to conduct your financial and/or business affairs on your behalf if you are temporarily or permanently unavailable. The durable power of attorney is highly customizable in terms of the power it delegates—it can be executed in case you are simply out of town and want someone able to make business decisions on your behalf, or it can extend to the event that you become incapacitated. The breadth of a durable power of attorney is something to discuss with your estate law attorney.
The healthcare power of attorney form allows you to designate a person to make healthcare decisions on your behalf if you become temporarily or permanently incapacitated.
Many people also opt to include a trust and a living will in their estate plan, although they are optional and do not apply to everyone’s situation. Estate plans vary in content as widely as do individuals’ life situations; your estate law attorney can customize your own estate plan to fit your own particular needs.
Within the context of estate planning, the type of trust usually involved is called a living trust. A living trust allows you to transfer and distribute assets during your lifetime, and appoint a person to continue doing so upon your death. Having a trust can help minimize and/or avoid the trust recipients’ having to pay unnecessary estate or inheritance taxes. The trust is a legal instrument that can be built into a will or act as a standalone document.
A living will is another optional part of an estate plan that some individuals choose to include. It is essentially a place for you to declare that you do not want to be kept alive by extraordinary or artificial means.
Of course, estate law covers lots of other issues besides the creation of an estate plan. You may find yourself in the position of having to administer the estate of a loved one. Maybe another relative, or you yourself, want to contest the deceased person’s will. The documents in an estate plan are highly customizable, and it is impossible to give one-size-fits-all advice for how to deal with these matters. This is why it is so important to have an experienced estate law attorney handle the process for you and your loved ones.
In addition to the creation and execution of the above estate plan documents, the estate law attorneys at Arnold & Smith, PLLC handle will probate, claiming property from another person’s estate, contesting wills, and defending wills against contestation.
Probate is a two-step process that must occur to carry out the wishes the deceased included in their will. First, the will must be presented to the clerk of superior court to prove its authenticity. Once the specific requirements for authenticating the will are complete, then the administrator for the estate can begin the process of “wrapping up” the estate’s affairs—paying off the estate’s taxes and other creditors, and readying the estate to be distributed according to the wishes contained in the will.
Once a will is offered for probate, any who wish to contest the will may come forward and do so with the Clerk of Court. The contestation will be transferred to Superior Court for a jury trial to resolve the matter.
If you are a surviving spouse, you are most likely eligible for what is known as the spousal allowance. This one-year, $30,000 allowance is available whether or not the deceased spouse executed a will, and is exempt from the estate’s creditors. However, a claim for this allowance must be timely and properly filed.
Surviving spouses may also be eligible to claim the so-called Elective Share from their spouse’s estate. The Elective Share aims to ensure that a deceased spouse does not disinherit the partner to whom they were married. In North Carolina, the percentage of the deceased’s estate to which you are entitled depends on how long you were married. Like the spousal allowance, the Elective Share must be properly filed for or you lose your right to claim it.
If you and your loved ones are facing any of the situations above, or any other arrays of estate law issues, please contact Arnold & Smith, PLLC today for a consultation.
- Can My Spouse Leave Me Out of Their Will?
- Creating a Written Will
- Estate Plan Basics: Why Do I Need One?
- General Power of Attorney
- Handwritten and Oral Wills
- Healthcare Power of Attorney
- How Non-Probate Assets Affect an Estate Plan
- Self-Proving, Changing, and Revoking a Will
- What Happens if My Parents Haven't Updated Their Will Since I was Born?
- What Happens to My Property if I Don't Have a Will?
- What is Probate?
- Can an Out-of-State Will Bequeath Property Located in NC?
- Estate Planning After Your Special Needs Child Turns 18
- Is Your Estate Plan Outdated?
- Top Five North Carolina Estate Planning Techniques
- What Happens to Your Assets When You Pass Away Without an Estate Plan?
- Where Do I Probate a Will?
- Business Succession Planning in Charlotte
- Charlotte Asset Protection Lawyers
- Contesting a Will
- Estate Planning Lawyers in Charlotte
- Frequently Asked Estate Planning Questions
- How to Inherit Property Without Probate
- Legacy Wealth Planning in Charlotte - FAQs
- Our Charlotte Estate Planning Services
- Pros and Cons Creating a Family Limited Partnership
- Proving (Or Disproving) Competency in Estate Law
- The Benefits of Creating an Irrevocable Life Insurance Trust
- What Happens if a Will Recipient Dies Before the Maker of the Will?
- What is a Grantor Retained Annuity Trust?
- Charlotte Business Succession Planning Lawyers
- Charlotte Estate Planning FAQs
- Charlotte Probate FAQs
- Elder Law: Frequently Asked Questions
- FAQ for Charlotte Families Without an Estate Plan
- Five Asset Protection Tips
- Five Ways to Use Charitable Giving in Your Estate Plan
- Heir, Beneficiary, Legatee and Devisee: Estate Law Basic Terms
- New Charitable Giving Rules That Could Impact Your Estate Planning
- How to Protect Your Children’s Inheritance
- Protecting a Child's Inheritance in North Carolina
- Charlotte Elder Law and Medicaid Lawyers
- Charlotte Estate Planning Services
- Charlotte Financial Planning Lawyers
- Estate and Trust Litigation Lawyers in Charlotte
- Estate Planning for Farms and Family-Owned Businesses
- Five Benefits of Creating a Charitable Remainder Trust
- Is Creating a Family Foundation Right for You?
- Planning Your Child’s Inheritance? What to Know
- Three Important Incapacity Planning Tools
- Three Estate Planning Tips for Modern Families
- Understanding Legacy Planning
- Legacy Planning for Real Estate
- LGBTQ Estate Planning in Charlotte
- Top 10 Legacy Planning and Estate Planning Techniques
- Charlotte Estate Planning Litigation Lawyers
- A Five-Step Checklist for Basic Estate Planning in North Carolina
- Challenging a Will on the Grounds of Undue Influence in North Carolina
- Could a Federal Tax on Unrealized Capital Gains Be Coming in the Future?
- Elder Law in North Carolina: Frequently Asked Questions (FAQs)
- Four Estate Planning Tips for Long-Term Cohabiting Couples in North Carolina
- How Business Succession Planning Can Help You Preserve Personal and Family Wealth
- I Inherited a House With a Sibling: What Now?
- Probate in North Carolina: Key Deadlines and Timelines
- What Is a Nuncupative Will?
- Why You Should Include a HIPAA Release in Your Estate Plan
- Are Out-of-State Wills Recognized in North Carolina?
- Business Succession Planning: Methods for Conducting a Comprehensive Business Valuation
- Can You Disinherit a Spouse in North Carolina?
- Estate Planning and Charitable Giving: Know Your Options
- Estate Planning for Married Couples in North Carolina
- Estate Planning for Real Estate Investors
- Estate Planning in North Carolina: What is a ‘Pour-Over’ Will?
- Four Qualities of Effective Business Succession Plans
- How to Talk About Estate Planning With Your Family: Five Tips You Can Use
- Long Term Care Planning: What is Medicaid Spend Down?
- Starting the Business Succession Planning Process? Seven Questions to Ask Yourself
- Three of the Most Common Reasons to Contest a Will In North Carolina
- What is an Irrevocable Trust?
- Who Has the Legal Authority to Make or Revise a Will in North Carolina?
- Writing a Will in North Carolina? Avoid These Six Common Mistakes
- A Guide to Estate Planning and Health Care in North Carolina
- An Overview of Adult Guardianship Proceedings in North Carolina
- An Overview of Long Term Care Planning in North Carolina
- Are You Including Funeral and Burial Instructions in Your Estate Plan?
- Beneficiary Designations and Estate Planning: A Guide
- Bill Introduced in the Senate Would Reduce Estate Tax Exemption to $3.5 Million
- Can Beneficiary Designations Replace a Trust?
- Charlotte Special Needs Planning Lawyers
- Common Mistakes When Making a Will in Charlotte
- Digital Assets and Estate Planning: What to Know About North Carolina Law
- Do I Need a Living Will in North Carolina?
- Estate Planning: Will My Spouse Automatically Inherit My Debt in North Carolina?
- Estate Planning With IRAs
- Estate Plans in North Carolina: Your Guide to Tax Planning
- Estate Tax Planning: What is Portability?
- Five Benefits of Creating an Advance Health Care Directive
- A Guide to Business Succession Planning for Business Owners in North Carolina
- Five Benefits of Setting Up a Living Trust
- Five Estate Planning Tips for Small Business Owners in North Carolina
- Five Mistakes You Can Make with a Power of Attorney
- Five Situations That Require an Estate Planning Lawyer
- Five Steps for Asset Protection from Lawsuits
- Five Tips for Creating a Succession Plan for Your Family-Owned Business
- Five Tips for Digital Estate Planning
- Five Tips to Help You Avoid Delays in the Probate Process in North Carolina