Protecting your assets and caring for your family are important issues during life and after death. Wills, trusts and powers of attorney are strategic documents to accomplish this goal. To be certain that your needs and desires are met, always consult an experienced attorney for the planning and drafting of these documents. The information contained herein is not intended to substitute legal advice. You should contact us and schedule an appointment to discuss your specific situation.
Should I have a will?
Having a will makes the emotional time after your passing easier for your family. You can lessen the burden on your family by planning for their care and financial well-being, by naming a guardian to take care of your minor children, by creating a trust for the benefit of your spouse and/or children, and by planning to save taxes.
What is a will?
A will is a legal document that allows you to control how and to whom certain assets owned by you pass at your death. Your will can provide for the disposition of your home and other real estate, as well as personal property such as cars and bank accounts, to loved ones. There are formal requirements established by North Carolina law that must be met for a will to be valid.
Who may have a will?
Anyone 18 years of age or older may have a will. Without a will, N.C. law determines how and to whom your money, property, and personal belongings will pass. If you already have a will and circumstances in your life have changed, review it to be certain that it still expresses your wishes and desires. If you have a will from another state, you should have your will reviewed by a North Carolina attorney to ensure that it meets the requirements of N.C. law.
THE PROBATE PROCESS IN NORTH CAROLINA
What is probate?
Probate is the administration of a person’s estate that is overseen by the Clerk of Superior Court. A person who has died is called the “decedent.” The person who settles the decedent’s estate is called the “executor” or “personal representative.” An “executor” is typically nominated under the terms of the decedent’s will although the court must approve the appointment of the nominated person or financial institution. When a person dies owning assets in his or her name alone, the probate process must be started by a personal representative to handle the decedent’s assets and take care of settling the decedent’s affairs.
What happens after probate is started?
The personal representative’s job is to “settle the decedent’s estate.” This includes notifying beneficiaries, gathering assets, paying debts, accounting for all property that comes into and goes out of the estate, and properly distributing the decedent’s property. The Clerk of Superior Court’s job is to make sure that the personal representative carries out its duties. The personal representative is the only person legally authorized to deal with the assets of the estate and handle matters of estate administration.
Do all of a decedent’s assets go through probate?
No. Assets held with rights of survivorship pass automatically to the survivor and are not subject to probate. Assets with designated beneficiaries such as life insurance policies, annuities, IRAs, and various retirement plans pass to named beneficiaries and are usually not subject to probate. The assets held in trust are governed by the terms of the trust and usually pass outside the probate process as well.
How does the probate process end?
The probate process ends when the decedent’s debts, taxes and administrative expenses have been paid, all of the remaining assets of the estate have been distributed, and the Clerk of Superior Court releases the personal representative from further responsibility for the administration of the estate.
As a parent you want your child to be loved and nurtured, even after your death. Under the terms of your will, you may nominate a guardian for your child and set aside funds for his or her care and well-being.
What are the considerations in choosing a guardian?
Often it is best to choose a family member or a close friend you and your child know well, and who shares your values and beliefs. It is also important to consider the personal circumstances of the guardian. Where the guardian lives, as well as his or her financial, physical and emotional well-being, will affect your child. The Clerk of Superior Court will consider your recommendation (see N.C.G.S. 35A-1225) as a strong guide in appointing a guardian, but the Clerk is not bound by your recommendation if the Clerk finds that a different appointment is in the child’s best interest. You may recommend a successor guardian in your will in the event your first choice is unable to be the guardian. Ask the guardian if he or she is willing to serve in this role before naming him or her in your will. If the person you recommended as guardian is no longer the person you wish to care for your child, you should change your will.
How can I leave property to my minor children?
You can make financial arrangements for your minor children’s care in your will. If you do not arrange for the management of property inherited by your minor children, N.C. law provides a statutory method for the management of the property for the child’s benefit. Your will can provide that your child’s inheritance will pass into a trust for the child’s benefit. The trust can ensure that the funds are used for the child’s education, health, and general well-being. You can determine when the child will receive those funds. For example, instead of an 18-year-old inheriting a large sum of money, you can require that the child be older before he or she can own the inheritance outside of the trust. Regardless of the age you determine to be a responsible age for your child to inherit your estate, you can be assured that the child’s needs will be paid for by the person, or financial institution, you appoint to manage those funds for your child. This person is called a “Trustee.” The trustee and guardian may be the same person, but they don’t have to be.
How Do I Find an Attorney?
You may contact us at (828) 452-2220 and schedule an in-person consultation or a consultation over the phone to discuss your case. You may also contact us by clicking here and someone from our office will contact you within 24 hours to schedule an appointment.