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.

1.  Durable General Power of Attorney:  This Power of Attorney is created so that someone can manages finances for you.  For the most part, this takes affect the minute it is signed.  It does not matter if you become incapacitated the next day.  There is typically a statement in the document that says something along the lines of: “This power of attorney is a durable power of attorney, and it shall not be affected by my becoming disabled, incompetent or incapacitated or the lapse of time.  It is my intent that the authority conferred herein shall be exercisable notwithstanding my physical disability or mental incompetence.”

Often times this is what a husband and wife will use for each other.  I do recommend to my clients to check with the banks they maintain their accounts with if they require their own form to be signed in addition.  Although it is not statutorily required, I have occasionally seen some local branches of banks require an in house form to be executed as well.  If you need to do this please remember to put the agents in the same order.  It is going to potentially create some serious problems if your daughter is named as first in one and second in the other!

2.  Springing Power of Attorney: This takes effect when the person creating the document becomes incapacitated.  It can be signed today and in three years from now when the person is incapacitated it becomes a document that can be used by the agent but not before then.  Typically two doctors are needed to certify incapacity.  If you no longer are incapacitated, the authority is revoked until the future if it is ever needed again.

3.  Healthcare Power of Attorney: This document names a person to make medical decisions.  This person is called an agent whom is essentially stepping into the shoes of the person signing the HCPOA and makes the decision that person would have normally made for him or herself.  I always suggest to make certain you tell everybody that is close to you, family, friends, even the agent that you appoint, what your wishes are.  Even though it is in the document it’s a tough decision to make.  So if they know and everybody else knows it’s a much more comfortable decision to be able to make.

This authority typically kicks in when either a doctor that has been named (or if left blank the doctor attending to you), determines that you lack capacity. The duration of the authority granted via the power of attorney can also be limited.  The language would read similar to this:  “If I am unable to make health care decisions for myself when this power of attorney expires (on the date I may have inserted above), the authority I have granted to my agent and attorney-in-fact continues to exist until the time I become able to make health care decisions for myself.”

Every estate plan should include both a Power of Attorney for finances as well as medical decisions.  It is important that your estate be managed after your death, but you may also need assistance while you are still alive.

If you need to revise these documents or create them for the first time, call our Estate Planning firm in Charlotte, North Carolina at 704-843-1446 and we will be happy to assist you in getting your affairs in order.

The realistic answer is probably.  The process may become overwhelming for that executor that is appointed.  Often times they are working, have families, and may even be out of state.   Much of the work in a probate  can be done via the mail.  Although, it tends to become cumbersome because assets need to be located; documents need to be forwarded to the institution, etc.  Sometimes, notice to creditors needs to be filed and it needs to be done in a specific manner. Do you know the language that has to be included? Do you know when the time starts running?  Do you know when it ends?

There are several filing deadlines that must be met as well.  There are tax issues that need to be considered as well as distribution requirements.  Making a distribution at the wrong time may have drastic financial penalties associated with that distribution.  Do you know when you can start distributing money?  Do you know when you can’t?
So there are ins and outs to the probate procedure that the typical executor may not know or understand.  Executors can ask the Clerk at the Probate’s court certain questions, but they are not permitted to give legal advice.  The Clerk can only give procedural advice and will more likely suggest that you speak with an attorney regarding your question.

I have retained many new clients in the middle of trying to do it themselves for several reasons.  The most common one has been that they just cannot handle all the details on their own.

If you have been appointed as an executor or administrator and need help in settling the estate, call our Charlotte, North Carolina Probate Law Firm at 704-843-1446 to help you.  We will be honest with you and tell you whether you really need us or not.

Did you…

1. get married or remarried?
2. get divorced?
3. have more children?
4. add grandchildren to the family?
5. increase life insurance policies or add additional ones?
6. become an empty-nester?
7. Retire?
8. increase your assets significantly (through employment or inheritance for example)?
9. inherit assets?
10. have children who were married and now are divorced?

Of course, this is not a complete list, but a good starting point.  If you have a plan and would like us to review it for you to make certain that it still reflects your wishes, call our Charlotte, North Carolina estate planning firm at 704-843-1446.

If you have a special needs child, you know that they need gifted people in their lives to provide special love and care.  If you don’t have a plan in place for your child, call our Charlotte Estate Planning office at 704-843-1446  to get details on how you can protect them when you no longer can.

The annual gift amount per year per person will remain at $13,000.00.

In North Carolina there is no statute or rule that says a parent has to leave their estate equally to each child.  Actually, there is no statute or rule that as a parent you have to leave your children anything for that matter.

What are the reasons why a parent would choose to leave more to one child and less to the other?

1. The child that receives less may have been economically supported by the parents more than the other children.
2. One child may simply be more well off and able to support him or herself than the others whom may need a little more help financially.
3. Maybe one of the children has a hole in his or her pocket and spends every dime they have.  (If this is the case, I would suggest maybe a Trust to manage and hold this child’s assets. However, that’s another blog for another time!)
4. Perhaps one child has supported and cared for the parents more than the other and the disparity is a way of thanking that child (or making a not so subtle point to the other!)

If a parent is going to decide to provide more for one over the other, what options are available?

1. Provide that a certain percentage be left to each child (ex:  40% and 60%);
2. Provide that a certain dollar amount be left to one and the remainder of the estate left to the other;
3. Perhaps leaving the liquid assets equally and providing other tangible property to one over the other.

Whatever option is decided there should be a full discussion with your Charlotte estate planning attorney to really understand the reality of what may result when providing an unequal distribution.  It may be done by the parent with all good intentions and on paper look good.  But, it is super important to understand what dynamics between your children the disparity may create.

If you are considering a disparate distribution or moving forward with your estate plan, contact our office at 704-843-1446 and we would be glad to discuss your personal situation with you.

An example of this would be Mary naming her brother Bill as the beneficiary of her life insurance policy in her trust, but at the time of her death, she had a different beneficiary named on the policy itself.

Just as life changes, so do your relationships, which can affect who you want to receive your assets –especially if you do not have children. Changing the beneficiary on assets such as bank accounts or life insurance policies is not uncommon, but you must remember to make sure that your will or trust reflects that change also.

Keeping your estate planning documents and beneficiaries up-to-date and coordinated is a quick and painless way to prevent legal headaches from occurring after you are gone.

Having two different named beneficiaries on two different documents can result in a lengthy and costly process to fix it – especially if each named person believes that they should be the one to inherit the asset.

The best way to avoid problems like this is to have a lawyer who focuses on North Carolina wills and trusts handle every aspect of your estate.

If you do not want your ex-spouse to be the beneficiary on the mentioned assets, be proactive and remove their name from the beneficiary designation.  You don’t need an attorney to do it and it takes very little time to make the change.

I asked him if he knew what the passwords were or whether he knew where his friend might have kept this type of personal information.  Unfortunately, he did not know.  This meant that we had to jump through some additional hoops.

If his friend had come to me and asked me to help him with his estate, I would have advised him as follows:

I am a big fan of organization and everything has its place.  The biggest reason most people prepare an estate plan is to make it as easy as possible for their family after they die.  If you do on line banking, have a Facebook, Twitter or Linkedin account, you should have these passwords and user names recorded somewhere.  Many use the same user name and password for all of our accounts.  I have heard this is not safe and I have heard that it is the best way in order to remember it across the board.  If you do use the same username and password across the board, if one of your account gets hacked well now you need to remember a different one.

You may want to consider using a little pocket size book that can be found at Barnes &  Noble called The Personal Internet Address & Password Logbook by Peter Pauper Press. It is set up similar to a phone book where you can put urls, passwords and usernames for each website or account you have.

I will advise you that you need to handle this book with care…it now has all a criminal minded person needs to make your life hell.  DO NOT TRAVEL WITH IT!  KEEP IT IN A SECURE PLACE!  I suggest that my clients keep their estate planning binders in a fire proof safe, keep this there as well when you don’t need it.  Oh, and write it in pencil so you can make changes later on.

The warning in the front of the booklet says it all: “As this is sensitive security information, it is avisable to keep this book in an extremely secure place.  It is not recommended for travel use, but rather for use in the home (and preferably kept in a hidden or discrete place).  It is recommended to use different usernames and passwords for each internet site, and to change your passwords frequently.”

If you won’t take the warnings seriously don’t bother using it.  But, if you are one to frequently change your log in information and like to be organized, then follow the warnings and use it properly!