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September 2, 2010

10 Things to Think About Regarding an Executor

There are many considerations to be made when either appointing an Executor in a Will or obtaining an appointment as an Executor. There are many valid reasons why a named Executor in a Last Will and Testament may not want to accept the appointment. On the other hand, there are many reasons (both legal and personal) why a person may want to not nominate a particular person as the Executor.

Below is a list of the 10 most popular questions I have received from clients.

1. How do you qualify as an Executor?

2. Can you decline your right to qualify as an Executor if you were appointed?

3. Who cannot qualify even if you have been appointed as an Executor?

4. What happens if the named Executor dies or if the appointed Executor dies?

5. What is the time frame to apply to become appointed as the Executor?

6. Where does a potential executor apply for the appointment? What County? What office?

7. What does the potential executor have to include in the initial Application to the Clerk?

8. What are the filing fees to obtain the appointment?

9. Does the Executor have to notify the potential beneficiaries or does the Clerk?

10. How long is the Executor’s appointed for?

It is always best to consult with an attorney whether you are ready to create your Estate Plan or if you have been appointed. It is pointless to appoint someone that may not be permitted to act or may not want to act for various reasons. It is better to be aware of it now so that there are little to no appointment issues later.

Posted in Estate Planning, Executor Responsibilities, Last Will and Testament, Probate Process, charlotte north carolina living trusts, charlotte north carolina trust | Comments (0) | Trackbacks (0)

August 30, 2010

20 Item Checklist for Executor in First Month of Appointment

By Sabrina Winters

A portion of the following list is provided to you from the North Carolina Estate Settlement Guide. This is a checklist of what the Executor’s responsibilities are within the first month of being appointed. This is not to be considered legal advise and or a complete checklist of what is required of an Executor. It is provided as a very basic over view.

1. Complete all documentation necessary to become the personal representative (Petition for Letters and Oath at a minimum)

2. Gather information on the decedent and the decedent’s probate assets (this is required for the Petition)

3. Make an appointment with the probate clerk (not always necessary)

4. Meet with the probate clerk (again, not always necessary)

5. Inventory Safe Deposit boxes (You may need a Court Order to open this if you are trying to do it before the Letters are issued by the Clerk)

6. Gather and protect estate property

7. retain experts (CPA’s, Attorneys, Financial Planners, for example)

8. determine value of non-probate assets (probably won’t get far with this until you have the Letters issued from the Clerk)

9. investigate potential wrongful death claims (you will have to disclose whether there is a wrongful death claim)

10. obtain tax identification number (you will need this before you open an Estate Account)

11. open estate bank account (using the tax identification number as the “social security number” so to speak of the Estate Account)

12. pay the year’s allowance (if the surviving spouse requires it)

13. activate or terminate government benefits

14. obtain prior tax returns

15. obtain death certificates (the funeral home usually orders these for the family when they burial arrangements are made. I would order at least 10)

16. publish notice to creditors (cannot do this until the Letters have been issued by the Clerk)

17. identify legal obligations of the decedent (creditors, etc.)

18. start going through decedent’s personal effects to determine where assets may be held and or any liabilities he or she has outstanding

19. keep very detailed records on any checks deposited into the Estate Account as well as any checks written from the account

20. Call an attorney if you get too overwhelmed with the process!

Posted in Executor Responsibilities, Probate Process | Comments (0) | Trackbacks (0)

August 24, 2010

How to Revoke a Written North Carolina Last Will and Testament

By Sabrina Winters

North Carolina Statutes dictate the following:

1. By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills {signed and witnessed} , or

2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator {the person making the Will} himself or by another person in his presence and by his direction.

Posted in Estate Planning, Last Will and Testament | Comments (0) | Trackbacks (0)

August 20, 2010

5 Requirements on How to Create a Valid Written Will in North Carolina

By Sabrina Winters

North Carolina Statutes require:

1. it be in writing; and

2. signed by the Testator with intent that it be his last will and testament; and

3. Witnessed by at least two competent witnesses; and

4. The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence; and

5. The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

Simply put, the above are the requirements. Of course, there are details that go along with, for example what is a competent witness.

Posted in Uncategorized | Comments (0) | Trackbacks (0)

August 20, 2010

Does an Attorney Have to put His or Her Name on a Written Will in North Carolina?

By Sabrina Winters

Yes. In the last year, North Carolina has created a statutory requirement that an attorney who drafts an attested written will or a codicil to an attested written will must have his or her name and business address affixed to the instrument and indicate that he or she is the drafter.

Posted in Estate Planning, Last Will and Testament | Comments (0) | Trackbacks (0)

August 16, 2010

By Sabrina Winters

Not every asset is handled in the same way when transferring it (also known as “funding the trust”) into the Revocable Living Trust. As a matter of fact, there are certain types of assets that if transferred into the Revocable Living Trust will cause significant tax consequences. A common manner in naming a Revocable Living Trust is “The Smith Trust, dated 01/01/2010, Joe Smith Trustor and/or Trustee”. The discussion below will apply for a Revocable Living Trust in North Carolina and not any other type of Trust. You should always consult with your CPA, Financial Planner and Attorney prior to making any transfers of ownership or beneficiary name changes.

Checking Accounts/Savings Accounts/CD’s/Stocks/Mutual Funds: The name of the current owner on these assets will change to the name of the Trust. You will probably have to do this in person for checking accounts and savings accounts as the bank will want you to sign a new signature card. Instead of signing the checks as Joe Smith you will sign them as Joe Smith, Trustee. Before doing this with your CD accounts, check with the bank if they will impose a penalty if you transfer it before the period has run.

L ife Insurance: You will remain as the named owner on the Life Insurance Policy. You will request that the Revocable Living Trust be named as the beneficiary.

Annuity: It is recommended that if you are married that the spouse remain as the primary beneficiary and if you have children, they should be named as secondary beneficiaries. This is due to the fact that there are certain options available to a spouse that are not available to a Living Trust.

IRA: If between a husband and wife, then the ownership must remain in the name of one of the spouses and the primary beneficiary as the surviving spouse. The Revocable Living Trust can be made the secondary beneficiary. You MUST check with your CPA to determine if there are any income tax consequences to these changes.

Personal Property: Typically any property that does not have a physical title (such as household furnishings, jewelry, clothes, etc.) is handled by a document called “Assignment of Furniture, Furnishings and Personal Effects”. This document is signed at the time your Revocable Living Trust is signed. Not only does it transfer the assets you currently have into the Revocable Living Trust but it also transfers any future property of that nature.

Real Property: The deed will be re-recorded with the name of the Revocable Living Trust as the owner. You should contact you insurance company prior to making this change to determine if they will allow a Revocable Living Trust to be a secondary insured on the policy. You should check with your mortgage company as well.

Posted in Estate Planning, Estate Taxes, Retirement Accounts, trusts | Comments (0) | Trackbacks (0)

August 9, 2010

How to Prepare for your Initial Estate Planning Meeting

By Sabrina Winters

One of the more common comments I hear as to why clients have procrastinated calling an attorney to assist them with estate planning is that they were concerned that they had to do too much preparing for the meeting. There really isn’t much you have to do, especially when you work with our Firm.

When you make an appointment with our Firm, you will be sent 3 documents to review prior to the meeting.

1. Welcome Letter:

This is primarily to familiarize you with our office policies and procedures and to also discuss the basic estate planning strategies. It gives you a basic discussion of the end result of a Last Will and Testament based plan versus a Revocable Living Trust based plan.

2. Family Information Worksheet:

This is for the client to complete and bring to our meeting. It asks for names, addresses, contact information, birth dates, childrens’ names, etc.; typical personal information.

3 Asset Worksheet:

This is also to be completed by the client and brought to our initial meeting. It is broken down by type of asset so that you can list your assets, how they are owned, the value and beneficiary names.

Having these 3 documents reviewed and or prepared prior to the meeting has three purposes:

1. It forces you to gather your assets and know what they are. Far too many have assets and don’t even know their value, who owns it or even if they are in existence anymore…especially when it comes to Life Insurance policies and 401Ks. This isn’t helpful at all.

2. It allows us to spend more time together discussing the actual plan and how it will help you and your family. Having to collect this information at our initial meeting could take 30 to 45 minutes or longer. Compare it to the endless forms you have to complete while waiting to be seen at your doctor’s office. You won’t have time to fill out forms at your scheduled appointment time with me because you will never have to wait long enough for me to fill out the forms!

3. It gets your mind focused for the discussion you will be having about your death, your children’s caregivers when you pass, estate taxes, etc. You will think of questions that you didn’t even realize you needed to be thinking about.

There is little preparation, but it goes a long way!

Posted in Attorney Client Relations, Last Will and Testament, trusts | Comments (0) | Trackbacks (0)

August 2, 2010

Is a North Carolina Power of Attorney Valid if it is NOT Recorded in the Register of Deeds??

By Sabrina Winters

Assuming that the Power of Attorney is otherwise valid and the person who has created the document (principal) is not incapacitated or incompetent, it is valid and may be used by the agent (the person named in the document by the principal) to carry out the instructions and authority in the Power of Attorney provided by the principal.

The North Carolina statute says that a power of attorney (otherwise executed properly) is not valid after the person becomes incapacitated or mentally incompetent unless it has been recorded in the Register of Deeds in the County where the principal lives. If the Power of Attorney has to be used during incompetency or incapacity, then record it and it will be valid.

It does not have to be recorded before the incapacity or mental incompetence occurs. It shall be valid even though the time of the registration is after the incapacity or mental incompetence.

Posted in Estate Planning, Financial Power of Attorney | Comments (0) | Trackbacks (0)

July 28, 2010

Probate Court Fees in North Carolina

By Sabrina Winters

For those of you who still aren’t convinced that avoiding Probate should be a priority, here is a link (http://tinyurl.com/probatefees) to the list of fees that the North Carolina Probate Court charges for various documents, filings and actions in a probate matter. By they way, some were just raised…again. When calculating fees, don’t forget to add in the legal fees the attorney will charge to open, administer and close the estate. Some firms charge an hourly and others charge a percentage of the value of the estate, so it is hard to estimate what that might be. You can probably approximate that it will cost 4% to 10% of the value of the estate. Not necessarily worth the lower price of a Will (as opposed to a revocable living trust) when you (well, actually your estate) is going to spend more money in the long run. Just something to consider.

Posted in Estate Planning, Last Will and Testament, Probate Process, trusts | Comments (1) | Trackbacks (0)

July 23, 2010

What is a Letter Testamentary/Letter of Administration?

By Sabrina Winters

If you have been nominated in a person’s Last Will and Testament as the Executor (the person whom collects the assets and distributes them and manages the estate) you will not be able to perform your duties unless you have been appointed by the Court as the Executor. Your appointment is reflected through the Letter Testamentary. The term Letter of Administration is the exact sam document, except the appointed person is called an Administrator and the decedent did not have a Last Will and Testament.

The one page document contains the following information:

1. The State and County the Estate was filed;

2. The name of the Decedent (person who died);

3. A statement that the application has been reviewed and the Court “adjudged legally sufficient the qualification of the fiduciary (Executor)”;

4. The name of the Executor ;

5. The date of the appointment (the date that the Clerk of Court signed the Letter);

6. The raised seal of the Court

Once this Letter is issued, it will need to be provided to whatever institution the Executor will need in order to collect the assets. It also needs to be provided if the the Executor needs to obtain information on an account or other asset.

In North Carolina, the Court provides five (5) Letters Testamentary which is included in the filing fee of $88.00. If the Executor needs additional ones then they are $1.00 each. For a list of additional Court fees please see http://tinyurl.com/probatefees.

Keep in mind that unless the Court is satisfied with the initial filing documents, the Letters will not be issued.

Posted in Estate Planning, Executor Responsibilities, Last Will and Testament, Probate Process | Comments (0) | Trackbacks (0)

Charlotte, North Carolina Estate Planning Attorney

10 Things to Think About Regarding an Executor

20 Item Checklist for Executor in First Month of Appointment

How to Revoke a Written North Carolina Last Will and Testament

5 Requirements on How to Create a Valid Written Will in North Carolina

Does an Attorney Have to put His or Her Name on a Written Will in North Carolina?

How to Prepare for your Initial Estate Planning Meeting

Is a North Carolina Power of Attorney Valid if it is NOT Recorded in the Register of Deeds??

Probate Court Fees in North Carolina

What is a Letter Testamentary/Letter of Administration?

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