An executor is a person named in a Last Will and Testament.  This person’s role is to submit the original Last Will and Testament to the Probate Court in the county where the person died and request authority from the Clerk to collect and distribute the assets according to the Will.

A trustee is a person named in either a Last Will and Testament or a Revocable Living Trust.  (This person is also named in various other types of Trusts, but we are focusing on the more known and used Revocable Living Trust.)  If this person is named in a Will, then he or she is named to be appointed the Trustee of a Testamentary Trust.  A Testamentary Trust is one which is created after death and included within the language of a Will.  The most common example I can provide is a parent whom leaves assets to a child but if the child has not reached a certain age, then it is put into a Trust, managed by the Trustee according to the requirements of the Trust.

If a Trustee is named in a Revocable Living Trust, he or she essentially is named to manage the Trust and the assets within the Trust either while the person whom created the Trust is incapacitated or has passed away.  This Trustee could also be managing a Trust for a child, similar to the above where it is created via a Will.

The Executor and Trustee can be the same person; there is no requirement that different individuals be named.  They just have different roles, sometimes being held at the same time.

If you do not have a Will or Trust in place, call our Wills and Trust Firm in Charlotte, North Carolina at 704-843-1446 and we can help you in choosing the best person for either role.

In my experience as a Charlotte trust attorney, I’ve actually found that the best place to start is by going through the general qualities that a trust administrator should possess.  From there, you can think through your list of family and friends and choose someone whose personality and financial savvy make them the right fit for the job.

1. Trustworthy

One of the most important qualifications (in my opinion of course) is trustworthiness.   This is an essential requirement, considering your administrator will be privy to all your financial information and will manage your estate upon your passing.  You should feel confident knowing that your administrator will distribute your assets and manage your affairs as you’ve indicated, rather than use the proceeds of your estate as if it were their own personal bank account.  Thankfully, there are a number of laws intended to keep this type of financial abuse in check, but it still does happen and it’s hard to recover the proceeds of someone’s estate once they are gone.

2. Fair-minded

Fair-mindedness is another trait a trust administrator should possess. Throughout the administration process, you’ll want your beneficiaries to be treated fairly and equally.  You don’t want to run into a situation where someone you’ve appointed shows favoritism towards certain family members and distributes your assets accordingly.

3. Loyal

…to the trust and to the heirs. In a way, he or she is the keeper of the final wishes, and part of their job is ensuring that these wishes are carried out as set forth in the will or trust.

4. Strong-minded

Finally, you’ll want to choose an administrator who is strong-minded and cool under pressure. Following the death of a loved one, emotions can run high among the heirs. A favorite gravy boat can take on epic proportions when everyone thinks it should go to them. Sometimes greedy beneficiaries believe their share is short. Other times, heirs think they should be getting their money immediately, either not realizing (or caring) that debts, liens, and other considerations have to be satisfied before any funds can be distributed.  Tensions can run high and your administrator should be prepared to keep such squabbles in check should fights break out regarding the terms of the trust.

While choosing a trust administrator is no doubt a tough decision to make, we are here to help guide you through the process.  Please do not hesitate to reach out to us as a resource if you need assistance setting up a trust and ultimately choosing an administrator to manage your estate upon passing.  Simply call our Charlotte estate planning office at (704) 843-1446.

In such a scenario, Transfer on Death Accounts (also known as TOD’s) can be a very useful and convenient estate planning tool in making sure your loved ones are financially taken care of in your absence. Essentially, Transfer on Death Accounts allow you to pass ownership of your accounts directly to a beneficiary of your choosing at your death.

If an account were in your name alone and without a named beneficiary, that account would be subjected to probate fees and be required to pass through probate before it could properly be distributed.  Keep in mind, that if you do not have a Last Will and Testament or a Living Trust, these accounts would be distributed according to North Carolina intestacy laws.  What does this mean?  It means that North Carolina has basically decided through its’ statutes who receives your property if you don’t say so yourself!

Yet you may be wondering, “What’s wrong with going through North Carolina probate and why bother with tools such as TOD’s to avoid it?”

1.  Many people wish to avoid involvement with Mecklenburg County or Union County probate court simply because it could take longer than anticipated before the funds actually reach the desired beneficiaries.  This is problematic for families who desperately need the assets to pay for burial expenses, outstanding medical bills, mortgage payments, and general living expenses.

2.  The accounts that are in the sole name of the decedent without a named beneficiary are subjected to the Probate Court fees based on the value. By simply adding a named beneficiary, you could (substantially in some cases depending on the value of the asset) reduce the mandatory Probate Court fees.

3.  One of the most significant drawbacks of probate is that your assets, their values and your beneficiaries will be made public for anyone to see. This aspect of North Carolina probate is especially troublesome for people who want to maintain their privacy after their death and the privacy of their family.  Many people do not want scam-artists knowing what their heirs stand to inherit upon their passing.

What a TOD agreement will not do:

1. It will not help you avoid probate on the rest of your personal effects such as jewelry, collections, family heirlooms, the contents of your home, and accounts held in your name alone.

2.  It will not help you minimize the amount of estate taxes your family might have to pay upon your passing or protect your assets if incapacity and not death occurs.

3.  It will not preserve that asset from being frivolously spent by a child who may be too young to understand the value of money.

It is so important you speak with a North Carolina probate attorney before making any decisions about your financial or legal affairs.  While a TOD agreement is indeed a useful estate planning tool that can help you avoid probate fees, it may not be the best – or the only tool your family needs to ensure they are protected should something unexpectedly happen to you.

Fortunately, we’ve made the process of meeting with a North Carolina probate lawyer easier than ever by offering free “Peace of Mind” Planning session (normally $750) to anyone that takes the time to read this informational article.  However, these sessions are limited to 5 per month, so call 704-843-1446 to reserve your spot today.

Charlotte, North Carolina:   While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.

That’s because according to Charlotte estate planning lawyer, Sabrina Winters, far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them.  A recent lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.

“Contrary to popular belief, estate planning isn’t just for the rich,” says Winters .  “At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial stresses and obstacles if something unexpectedly happens to them,” she adds.

So what are these documents and how do they help you in a time of emergency?  Winters explains the following:

• Will- A will is a document that specifies what should happen to your assets if you pass away.  A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.

• Trust- A trust is a legal entity that can hold title to property. With your assets securely placed in a living trust, you can minimize your financial exposure to lawsuits, divorce and bankruptcy while alive.  Upon death, a trust (if created and funded properly) will keep your affairs private and out of the probate court.  It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpectedly happens.

• Power of Attorney- A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die.   Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.

• Advanced Health Care Directive- Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself.  Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations.   This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.

“Accidents and serious illness happen every day without warning,” says Sabrina.  “That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year.  It will save their family from potential headaches and unexpected costs should the unthinkable happen”.

About Sabrina Winters:  Winters is a wife, a mom, a business owner and the Senior Attorney at Sabrina Winters, Attorney at Law, PLLC…an Estate Planning and Probate law firm located in the beautiful Ballantyne area of Charlotte, North Carolina.  Winters has been assisting clients in all areas of Estate Planning for over a decade.  Some of her services include:  Wills, Trusts, Probate,Tax Planning, Planning for Children and Succession Planning for business owner

However, in today’s mobile society, more and more retired people reside in more than one state during the year for reasons other than the weather.  Not just fleeing for short spurts.  Who can resist those grandchildren?!

If you consider yourself a “snowbird”, it is important for you to find out whether your current estate plan is going to work for you as you planned.  When it comes to planning for a dual residence client, it is important to address issues and develop a plan that will work effectively in both states.

Most understand how critical it is to have up-to-date medical directives, durable powers of attorney, designation of a health care advocate and a living will.  However, what you may not know is that each state has its own set of laws and rules, which may mean that your documents may not work as you planned in your secondary residence state.  Even if the documents meet the technical requirements of the other state, a hospital or doctor may not choose to honor the documents (for whatever reason), which may mean your decisions regarding end-of-life, or disability care may not be honored.

If you are a dual resident, living in North Carolina as well as another state, it is important to talk with not only an experienced Charlotte estate planning attorney but also an experienced estate planning attorney in the dual resident state.  Working together, they can provide specific direction regarding individual state requirements. In addition, if your will or trust was created before you owned property in another state, be sure to call and make an appointment with your Charlotte wills attorney to go over your will or trust to make sure that it will work just as you planned.

Contact:  Sabrina Winters

Phone:  (704) 843-1446

Email:  swinters@sabrinawinterslaw.com

With the stores crowded, traffic horrendous and holiday parties in full swing, the period between Thanksgiving and New Years Day is undoubtedly one of the most dangerous travel times of the year.  Charlotte lawyer, Sabrina Winters, urges families to be prepared by making necessary updates to their will, trust or other estate planning documents prior to the hustle and bustle of the season.

Charlotte, North Carolina – It is that time of the year again where the stores are packed, traffic is horrendous and holiday parties are in full swing.  And no matter what holiday you celebrate, this is certainly not the safest time to be out and about on the roads.

Between Thanksgiving and New Year’s Eve in 2002  alone, alcohol related crashes killed 1,561 people. That does not even account for the people who were simply injured or incapacitated for any length of time from their injuries.

According to Charlotte estate planning lawyer, Sabrina Winters, the holidays are the perfect time to make sure your will, trust or other estate planning documents are updated so your family stays protected should something unexpectedly happen to you.

“The holidays are a really smart time to make sure your estate plan is exactly how you want it to be should something unexpectedly happen to you and/or your spouse,” says Sabrina Winters,  ”Without an updated estate plan, your children could be left at the mercy of the courts, your assets in limbo and your physical or medical wishes may not be honored in the event of an accident,” Sabrina Winters adds.

Specifically, Sabrina Winters offers four things to consider when updating your estate plan prior to the holiday season:

1. Guardianship nominations:  Have you named guardians to care for your children if something happens to you?  Have you made sure those guardians will have the financial resources to care for your kids in your absence?  Are you even happy with the people you originally chose to care for your kids?  Sabrina Winters says if you answered no to any of these questions, it is time to pull your plan out of the drawer and make a few key changes.

2.  The effect of marriage, divorce or remarriage:  Is your ex-spouse still set to get half of what you own according to the directions of your prior estate plan?  If so, according to Sabrina Winters it is time to update!  Sabrina Winters recommends reviewing your plan carefully to make sure your beneficiaries are exactly as they should be in case something unexpectedly happens to you.

3.  Are your assets owned properly in the name of your trust: If you have a trust, Sabrina Winters says now is a great time to take an inventory of your assets and make sure they are owned properly in the name of that trust.  This is one of the most common reasons an estate plan will fail at the end of a person’s life.

4.  Do you have medical directives and POA’s if you are incapacitated?  If you are incapacitated in an accident but do not die, Sabrina Winters advises that you will need clear medical directives and power of attorney forms so someone you trust can make medical and financial decisions until you are able to speak for yourself.  If medical directives and POA’ were not included in your original plan, speak with a qualified attorney to have them drawn up before the hustle and bustle of the season starts.

“An updated estate plan is the greatest gift you can give to your family over the holiday season, ” says Sabrina Winters.  ”It is the only way to make sure your children, assets and wishes will stay protected should something happen to you during this dangerous time of the year.” Sabrina Winters adds.

For more information about Sabrina Winters, please visit www.ncestateplanninginfo.com or call (704) 843-1446.

Bio:

Sabrina Winters has been assisting clients with all their estate planning needs for over ten years. As a woman, a mom, a wife and business owner, she brings her personal experiences as well as legal experiences to her clients.  Regardless of what stage in life you are or your asset level, Sabrina Winters has the experience and skills to plan for your particular needs.

I am not certain through whose eyes they determined this. I look around and still see far too many families struggling to recover to consider it over.   And while I acknowledge things may be improving on some level, I still find it hard to objectively look at a parent who cannot find work or lost a huge chunk of a 401(k) plan to say our Country is officially in the clear.

The number of bankruptcies taking place right now equally saddens me.  For many families, bankruptcy may be the only way to break free from the mountain of debt that constantly rests on their shoulders.  Of course that’s not to say this decision is ever taken lightly by those who file, as the consequences of bankruptcy are long-lasting and sometimes severe—especially if you stand to inherit money.

Example: a family member passes away who left you a cash gift in a will or trust.  On the surface it seems like this would be a much needed and timely relief for a family going through bankruptcy.  However, Federal bankruptcy rules declare that if you inherit money from a person who dies within 180 days of the date you filed for bankruptcy, you must tell the courts.   In simple terms, that means the inheritance now becomes a part of your bankruptcy estate and will be distributed to your creditors as the courts see fit.

This also applies to items that you may inherit such as cars, jewelry or furniture.  All of these items are subject to the administration of the bankruptcy estate.  However, this doesn’t mean that items like this are certain to go up on the auction block.  You can claim exclusion on certain things and the bankruptcy trustee has a certain amount of discretion in choosing what to liquidate. However, it can be extremely stressful to think about a family heirloom that has been in your family for years going to auction.

Hopefully your loved one had a Charlotte wills and estates attorney who knew a thing or two about protecting their inheritance from things like bankruptcy, creditors, divorce and the like. Ideally, your loved one would have been advised to set up a trust so any inheritance passed down to their family members would be out of reach from creditors and the courts.  If they did not, and you have not filed bankruptcy yet, this may still be an option if your loved one is willing to have their plan looked at by a qualified Charlotte wills and estates attorney.

Planning to avoid giving your hard-earned wealth to creditors is not illegal or immoral either.  You should think of it the same way you would when considering tax planning.  Tax planning is legal, but tax evasion is not.  The difference is whether you play by the rules and are honest.  For example, not telling the courts you received an inheritance is illegal and you could face serious consequences.  However, you are not skirting the rules if you are the recipient of a spendthrift trust; that was not your choice.

If you or your loved one needs help facilitating such a trust to protect your inheritance from the claims of creditors, simply call our Charlotte wills and estates office at (704) 843-1446 to schedule a “Peace of Mind Planning Session” at no charge ($750 value).  We will walk you through the necessary steps that must be taken to protect your inheritance from a bankruptcy filing or any other creditor’s claim. However, these appointments are limited to 5 per month so call today!

Through the Probate process, beneficiary names, accounts, account numbers and values are required to be disclosed.  We can all agree, I am sure, that this seems like a huge violation of our privacy.  What goes hand in hand with this required disclosure are the potential safety issue this poses to those inheriting your estate.  There are a lot of unscrupulous people who prey on widows and beneficiaries to try to separate them from their inheritance.

So why then is this information made available to the public?

It may be easier to pallet the lack of privacy if you can better understand the true purpose of probate.  One of the primary purposes of probate is to make sure the creditors of the deceased person have an easy way to collect any debts they are owed from their estate. For that reason alone, the probate process must be open and public.  Notice to creditors is required to be given in North Carolina with a mandatory waiting period of 3 months to allow the creditors sufficient time to file their claims.

This information is also available to the creditors of your beneficiaries so that they have notice that they are inheriting an estate. Under this scenario, the creditors could bring an immediate claim against your beneficiary, which may ultimately result in your beneficiary never receiving the inheritance you wanted to leave them.

However, to be clear, I am in no way advocating that debts go unpaid.  In fact, you should instruct your executor to pay your debts.  But, wouldn’t you rather direct how this process goes rather than leaving it to the courts?

One way to do that while simultaneously stopping the violation of privacy and loss of control over the distribution of your estate is to create a revocable living trust.

Unlike a will, a living trust is a private document that will not become a matter of public record because it does not have to be filed with the probate court.  There is no statutory requirement in North Carolina for the Court to over see the management of a living trust.  Therefore, you can name beneficiaries and provide gifts while still attaining privacy since only the trustees and those involved in trust administration will know the contents of a living trust.  This means that no creditor of yours or your beneficiaries, no disgruntled relative, no scam artist, and no nosey neighbor will ever have access to the details of your financial history.

Remember, there are people out there who make a living preying on young or vulnerable people that have just inherited something from an estate. They troll these public records daily looking for victims of their next heist or scam.  Fortunately, with a bit of planning, you can protect your family from such privacy violations that accompany the probate process.  I recommend talking to your Charlotte trusts lawyer about living trusts and how they can help your family if something unexpectedly happens to you.

Fortunately, we’ve made that process easier than ever by making five (5) free “Peace of Mind” planning sessions available to readers of our blog.  Simply call (704) 843-1446 and mention this article to reserve your spot.  Your family will thank you for it.

A Guardian is named in a Last Will and Testament or a Living Trust.  He or she essentially is nominated to raise the chid or children and make parental decision until the age of 18.

A Trustee is appointed to manage the assets held in a Trust for essentially anyone.  A Trust can be created for a minor child or an older child and especially a child with special needs.

Either appointment comes with big responsibilities and the person being appointed should be responsible enough to carry out those responsibilities.

“Guardian v Trustee”

1. both pass along specific assets,

2.  both name guardians,

3. both are written,signed and witnessed;

4.  both can be amended and revoked.

The differences between both are what sets them apart:

A Last Will and Testament, appoints an Executor who then takes the original Last Will and Testament to the Probate Court after the person dies. The assets are then collected and distributed according to the directions in the Last Will and Testament.  There are North Carolina Probate Court rules and regulations that need to be followed by the Executor once he or she has been appointed.  During the lifetime of the person who created the Last Will and Testament, the title of assets are not changed.  However, the names of beneficiaries may need to be changed to keep everything consistent with the Last Will and Testament.

A Revocable Living Trust appoints a Trustee and a Successor Trustee. This person manages the assets in the trust after death.  If done properly, a Revocable Living Trust will avoid probate. How?  Because the title of assets (not all) will be changed to the name of the Trust.  This is called Funding the Trust.  If the asset is not in the name of the person who died, then there is nothing to probate.  Ultimately, avoiding Probate.

I must caution you that there are certain assets that should not be titled into the name of the trust and there are beneficiary designations that must be changed in order for the Revocable Living Trust plan to work.  You should consult with an attorney, a financial planner and a CPA prior to making any changes – if you don’t you will run the risk of unwanted tax liabilities.

“What is the Difference Between a Last Will and Testament

and  a Revocable Living Trust?”