The Fine Print – Estate Plan? Yes or No? Couple Disagrees

Estate Plan - yes or no?

“Dear Attorney,

My husband and I can’t agree if we need a Will. He says we ‘don’t have enough to worry about.’ I want to ensure our children get what we do have.  It’s become a sore spot, and now our family members are weighing in. I’m afraid it’s going to become a contact sport!” – B. Meadows in Matthews


Dear B.

Almost everyone, if not everyone, should have a Will.  A Will does at least two important things.  First, it designates who gets your property when you die.  Second, it identifies someone who is responsible for assembling your property and distributing it to the persons you have designated to take your property on your death.  This person is the “personal representative” (an executor or administrator).

What happens to your property if you don’t have a Will?  The answer is that North Carolina will do it for you.  In a complicated fashion, the laws of North Carolina specify who takes your property, if you die without a Will, called “intestate succession.”  The major disadvantage of intestate succession is that the distribution under North Carolina law may not be what you would have wanted.  In addition, someone, such as your spouse or an adult child, will have to persuade a court to appoint him or her as your personal representative.

With very few exceptions, a Will must be in writing and signed or acknowledged in the presence of two witnesses, who also sign, and a notary.  North Carolina law also provides for “self-proving” a Will by using a notary public only, but this is tricky.

Not all of your property is subject to a Will (or intestate succession if you die without Will).  Such property is referred to as non-probate property.   Property owned jointly with right of survivorship, for example, passes directly to the surviving joint owner.  Life insurance proceeds are distributed directly to the named beneficiaries.  A checking or saving account can be set up to name a person to take the account on your death, referred to as a “payable on death” account.  Similar arrangements are available for pension plans, IRA accounts, and brokerage accounts.

You can also create a Trust during your lifetime that, after your death, directs the Trustee to distribute your property according to the Trust terms.  Such a Trust can continue after your death or terminate on completion of distribution of the Trust property.  The creation and administration of a Trust can be somewhat complicated, but is not really all that hard.  But a distinct advantage is that a Trust avoids the cumbersome probate process created by North Carolina laws.  Even if you have a Trust, you still need a Will for property that is not subject to the Trust.  A Trust must be in writing and signed before a notary public.

A Trust created during your lifetime may be either revocable or irrevocable.  And, you can name yourself as the Trustee, or you and your spouse as joint Trustees.  You can also name someone as an alternate Trustee if you become incapable of performing the responsibilities of a trustee.  On your death, the Trust instrument will designate a successor trustee, whose responsibilities are similar to that of a personal representative, often the same person.

You need a Will, and perhaps a Trust, if you care about the people who survive your death.

Laura H. Budd, Esq. is a managing partner experienced in estate planning and estate administration at Weaver | Budd, Attorneys at Law.  To schedule a consultation with her, please call (704) 841-0760. The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and Laura H. Budd or Weaver | Budd, Attorneys at Law.

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