The most important thing that I try to point out at each and every meeting I have with a potential client is that we never know when we are going to die.  The best way to estate plan is to plan on passing away tomorrow. I explained to her that if they both were to pass away at the same time, that not only would there not be a person already in place to care for their children (Guardian) but the children would not have access to the Life Insurance proceeds because they are not 18 yet.

She was not thinking that her children would need the money tomorrow because she was not thinking she would die tomorrow.  Both her and her husband commute every day for work; anything can happen. She also did not know that there needs to be a guardian in place in order for the proceeds to be able to be used towards the care of her children during the time her children needed it the most.

Needless to say, after she heard my explanation as to the importance of planning as soon as possible when you have minor children especially, she scheduled an appointment immediately.

Sometimes the fear of the unknown is all it takes to put it all into perspective and to see the value of having an Estate Plan today.

1.  I have made appropriate legal arrangements to appoint the person or persons I want to make my personal, health care and financial decisions should I ever become disabled.

2.  I have made appropriate legal arrangements to appoint the person or persons I want to raise my minor children to adulthood should they become orphaned.

3.  I have made appropriate legal arrangmements to protect any inheritance I may leave both for and from my children, realizing that it can be taken through their potential divorce, lawsuits or bankruptcies…or lost through squandering.

If you answered “no” to any of the above, then YOU need a comprehensive estate plan.

You will notice that there aren’t any questions regarding how large or small your estate is; It does not matter.  It only matters when it reaches the taxable limit (which in 2009 is $3,500,000).

You will also notice there aren’t any questions regarding whether you are married, divorced or single.  There are issues that need to be dealt with no matter what your marital status is.

We cannot know when we will die, but we can plan as much as we can when that time comes.  Call our offices to find out how we can assist you with planning your estate so you can plan today for your family tomorrow.

The greatest fallacy most people have about estate planning is the belief that if they die intestate (or without a will) all of their property will go to their spouse.  In fact, it is this belief that keeps many people from creating an estate plan until after one spouse dies.  But this is not necessarily true.  What happens to your estate depends on many factors, including the state in which you live, whether you have children, your marital status and whether you’ve been married before, etc.  There is absolutely no one answer to the question “What happens if I die without a will?” Are you sure you want to take your chances with what might happen?

Another issue that most people just don’t understand is that probate is more often than not a very time consuming and expensive process.  There is a good likelihood that your loved ones will need access to your estate in the months following your death—unfortunately they are not likely to get it!  Probate court calendars, informing creditors, looking for other possible heirs, other family members contesting decisions—all of these and more can keep your estate tied up in probate for months or years, and unavailable to the people who need it most.

And perhaps the least understood drawback to refusing to create an estate plan in a down economy is that the probate courts may force your heirs to sell valuable assets at a time when property values are at their lowest. This alone could result in significant losses to the estate you pass on to your beneficiaries, not to mention probate fees and estate taxes that could have been saved had you planned ahead.

Estate planning may feel like an unnecessary expense, but the more you understand the more you realize just how essential it is.  Creating your estate plan now could be the best investment you make in your family’s future.

If you conduct the majority of your business in another state, and the majority of your assets are in another state that is where the primary probate of your estate will be.  If you have any property in North Carolina, you can do what is called an Ancillary Estate.

For example, if “A” owns investment accounts alone and named “C” as the beneficiary, that investment account would pass to “C” automatically when “A” died no matter what the Last Will and Testament says. 

Another examples is “A” and “B” own a home as joint tenants with the right of survivorship.  If “A” dies, “A’s” 1/2 interest in the property automatically passes to “B” at “A’s” death; regardless of what the Last Will and Testamen says. These types of assets are said to “pass outside the Will” and pass pursuant to Contract Laws and not Estate Laws.

It is very important to be consistent with your wishes contained in your Last Will and Testament and how your assets are currently held if you want your wishes to be followed in your Last Will and Testament.  You may find that you need to change beneficiary designations and/or how your property is held once your Last Will and Testament has been properly executed.

At the Law Offices of Sabrina Winters, Attorney at Law, PLLC we make it a practice to close out the file with a detailed letter of which assets need to be changed and the correct way to change them.

Typically, if my client has a child or children and anticipates having a child or additional children, a simple statement in the Last Will and Testament which reads “any after born children” will provide for any children born after the Last Will and Testament has been signed. I usually include this statement even if the couple does not have children; this way when they do have children they are already provided for and my client does not have to pay me again to make the change to the Last Will and Testament.

Although North Carolina does not require residency in North Carolina to prepare a Last Will and Testament, I advised her to have her Estate Plan prepared by an attorney in her current state of residence.  Below I have listed a few reasons why I turned business away!

1.  I am not licensed nor familiar in any way with the drafting requirements in her current state of residency.  If I was to prepare the Last Will and Testament, I would need to be certain that it was properly drafted to probate the estate in her current state of residency.  This would require research and contact with the State Bar where she currently lives which would have potentially not been cost effective for her.

2.  The only connection to (asset in) North Carolina was a home. This being the case, probate would be filed in her current state of residency. Then there would be an Ancillary Probate filed in North Carolina to pass on the home.  This is a quicker and some what simpler type of Probate.

3.  North Carolina has specific requirements on the procedures that must be followed by the witnesses when witnessing a Last Will and Testament.  In addition, there are rules that a Notary has to follow.  I did not feel comfortable drafting a Last Will and Testament and then sending it off to be signed, witnessed and notarized without my supervision.

This was my recommendation based on the specific situation of this particular client.  When a client seeks my advice, I evaluate that client’s particular situation on an individual basis.  I may counsel another client differently based on the particular situation.