Estate Planning FAQ

estate planning FAQ

DISCLAIMER
The information below is not legal advice, does not form an
attorney-client relationship, and is based on North Carolina law.

General

Who needs estate planning?

Most everyone needs estate planning. A carefully drafted will or trust document is the only way to make sure the assets accumulated over a lifetime are distributed according to a person’s wishes.

Estates with the following types of considerations are especially complex and increase the likelihood of mismanagement:

Distribution of property according to a person’s wishes and not statutory guidelines
Minor children that will require a guardian
Continued operation of a family business
Estates with a high potential tax exposure
Maintaining privacy by avoiding probate

Should I have a will or a trust?

It depends. The appropriate estate planning document for someone depends on a number of factors including estate planning goals and the size and composition of the estate. You should discuss your options with an estate planning attorney before choosing whether to make a trust or will.

What makes up an estate?

A person’s estate includes all of the assets at the time of that person’s death, including but not limited to:

Real estate
Personal property (for example jewelry, automobiles, furniture)
Cash
Securities
Ownership of a business

Wills

What is a will?

A will is a type of estate planning document that distributes the property of a deceased person at that person’s death as prescribed by the deceased person.

What assets can pass through a will?

All of the assets at the time of a person’s death can pass to beneficiaries through a will, including but not limited to real estate, personal property (such as jewelry, automobiles, furniture), cash, securities, and an ownership interest in a business. Some types of assets are usually passed on to a beneficiary without the direction of a will, including but not limited to most retirement savings accounts, life insurance policies, and real estate co-owned with a spouse.

What assets are typically not distributed as a part of a will?

Some types of assets are typically passed on to a beneficiary without the direction of a will, even though they are part of a person’s estate. The reason for this difference in transfer varies between asset types. For example, a defined beneficiary plan such as a retirement savings account or a life insurance policy usually specifies a beneficiary that receives plan assets after the account or policyholder passes away. For most real estate that is co-owned by spouses, the property passes to the surviving spouse through a “right of survivorship” that exists in tenancies by the entirety.

What happens if I don’t have a will?

In North Carolina, if a deceased person passes away without an estate planning document, then their property passes according to the North Carolina laws of intestacy as set forth in Chapter 29 of the North Carolina General Statute. This means that the person’s property passes to descendant(s) according to a pre-defined formula, which is usually not according to a person’s last wishes.

Who can be disinherited from a will?

A deceased person’s will may disinherit anyone from receiving a share of the deceased’s estate except a surviving spouse. A surviving spouse domiciled in North Carolina is entitled to an “elective share” of the estate according to a formula set forth in North Carolina General Statute § 30-3.1.

How is a will carried out?

A deceased person’s will is carried out according to the probate process described in Chapter 28A of the North Carolina General Statutes.

What is an executor?

An executor (sometimes called an “administrator”) of a will is the person or entity responsible for distributing the estate of a person upon their passing, as prescribed by that person’s will. A non-beneficiary entity or person, such as bank or an attorney, can also act as an executor.

Who should be my executor?

Ideally, the person who is designated as the executor of a will should be organized, responsible, and trusted by all parties named in the will.

Can a will appoint a guardian for children?

Yes, a will can appoint a guardian for minor children, although the State defers to a surviving parent, granting him or her custody. In cases where both parents are deceased, the designation of a guardian in a will is a “strong guide” for the State to name a guardian. For more information, see North Carolina General Statutes § 35A-1212.1.

What happens to a will after divorce?

Under North Carolina law, any provision of a will that favors a former spouse is invalid after a divorce or annulment is finalized. The rest of the will remains in effect. However, any favorable provision, including distribution of assets is struck out from the will. For more information on how divorce or annulments impact a will, see North Carolina General Statutes § 31-5.4.

trusts

What is a trust?

A trust is an estate planning document that designates one or more trustees who manage assets on behalf of one or more beneficiaries. A trust allows the trustee(s) to manage the trust’s assets in a continuous manner before and after the death of the person establishing the trust. The trust becomes the owner of the assets which avoid probate upon the death of the person who established the trust.

What is a revocable trust?

A revocable trust is a trust document that can be revoked by the person who established the trust without the consent of the person(s) or entity managing the trust as trustee. Some tax benefits cannot be realized in a revocable trust.

Powers of attorney

What is a power of attorney?

A power of attorney is a document that gives authority to a person to make financial decisions for someone else. A power of attorney can give an agent power to make important financial decisions such as transferring property or entering into contracts.

What is a healthcare power of attorney?

A healthcare power of attorney is a document that allows someone to make healthcare decisions for someone else when that person is incapacitated. The agent can make healthcare decisions regarding any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for the principal’s physical or mental health or personal care and comfort, including life-prolonging measures.