Attorney Steven N. Long believes informed clients make the best decisions about their estate plans. That's why we want to break down some complex terms and clarify some confusing principles so that you make the right choices for your estate plans. Contact our office online or call us at (252) 514-0062 for a free consultation to get specific legal advice for your estate plan. In the meantime, here are responses to some of the most frequently asked questions we get when new clients consult with us.
What is estate planning?
Estate planning allows you to decide how you want your assets to be managed and distributed upon your death. Sometimes, if you have limited assets, limited beneficiaries, or limited instructions on how to distribute your assets to the beneficiaries, planning is pretty straightforward. On the other hand, the more assets, the more beneficiaries, and the more instructions you desire may require a more complex and varied estate plan.
What goes into an estate plan?
An estate plan will include documents that accommodate your specific needs. It may involve some or all of the following:
- Last will and testament
- Living trust
- Irrevocable trusts (e.g., life insurance trusts, special needs trust, charitable trust)
- Health care directives including medical powers of attorney and living wills
- Succession plans for business
- Charitable planning
What is probate?
Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. It is overseen by the Clerk of Superior Court.
What happens if I die without a will in North Carolina?
Dying without a will means you die intestate. Your assets and belongings will get passed to your heirs according to the N.C. Intestate Statute, which rarely results in a succession one would desire.
What happens to my will if I move to a new state?
The differences in state laws could result in complications. It is wise to revisit your estate plan with an attorney in your new state after moving.
Do I need a lawyer to write my will?
While you do not need a lawyer to write a will, doing so on your own is a considerable risk. A last will and testament that was not written by a lawyer or that was created using an online form are more likely to be challenged, deemed invalid, or leave significant assets unaccounted for, which can create confusion and unforeseen outcomes.
Do I need a will if I have no children?
If you die without a will, your estate will pass to others through the N.C. Intestate Statute. If you have no children, then property will be disbursed to family members. If there are no heirs, then the state may acquire the property. So, even if you do not have children, you still need a will if you do not want the state to make decisions about your estate.
Keep in mind, you do not have to create a will to benefit only family. A will allows you to pass your estate in a way that will serve what matters most to you. This could be preserving the financial wellbeing of your parents, siblings, or even setting money aside for the care of a pet. You could also assist a charitable organization aligned with your values.
Does my will automatically change if I divorce?
No. It is crucial to update your will after getting a divorce so that your most recent wishes are accurate.
Does my will automatically change if I have a child?
It depends on the language in the will. If your will specifies an action that will happen to unnamed offspring (for example: “All of my property equally to my children”), the interpretation would be different than if you made a specific bequest to a named child or children. You should always revisit your will after having a child just to be safe.
What is the difference between a will and a living will?
These are two completely different documents. A will – also called a last will and testament – comes into effect when its creator dies and directs the executor on how to transfer the property in the estate. A living will, on the other hand, comes into effect when its creator is alive but incapacitated – it tells others what the creator's preferences and medical decisions are regarding their healthcare.
What is a trust?
A trust is a contractual arrangement regarding assets managed by a trustee, for the benefit of someone else, called the beneficiary. Generally, assets set aside in a trust do not go through probate, simplifying and expediting its transfer to beneficiaries. The trustee is under a fiduciary duty to follow the instructions set out by the trust.
Can I have both a will and a trust?
Yes. Many trusts are testamentary trusts, which are created in the decedent's will. Lots of other trusts can be established during the person's life to set aside assets outside of their will.
Are trusts only for rich people?
No. Trusts can be created by anyone who wants to set aside money or property for someone but does not want to give them the money in a lump sum or until a certain age. They are especially common when the beneficiary is underage or is unable to properly manage their own affairs.
What is a guardian?
A guardian is a person who is responsible for someone else's well-being. People often appoint a guardian for their underage children in their will or for their adult children with special needs. These legal guardians can make legal decisions on behalf of their "ward," much like a parent.
How can we make sure our special needs child is cared for after we die?
A common way to ensure a special needs child continues to receive the care they need is to appoint a guardian for them and to create a trust for their benefit.
When do I need a power of attorney?
A power of attorney is essential for people who are unable to make important medical or financial decisions on their own behalf, usually because they are incapacitated or suffering from a medical condition. There are several types of powers of attorney, each with their own purpose:
- Durable property power of attorney
- Healthcare power of attorney
- Springing property power of attorney
- Limited (special) power of attorney
Contact an Estate Planning Lawyer Today
At Attorney Steven N. Long, we know you have lots of questions about estate planning. We are glad to answer your specific questions. Contact us using our online form or calling us directly at (252) 514-0062 to schedule a free consultation.