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.

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.