Frequently Asked Questions on Family Law in NC

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FAQ

When is the “right time” to create an estate plan?

When a person has reached the age of majority, which in many states in the U.S. is 18, they need to plan and prepare for the unexpected and take care of yourself and your family. If you have children, a house, retirement accounts, and other financial accounts, you need an estate plan. I understand all the reasons why it takes a long time for people to take the leap and call an estate planning attorney. I get it. It forces you to face your own mortality and all the things that comes with it. There are even some people who feel a sense of superstition associated with an estate planning, but there is no better way to protect yourself and your family when faced with incapacity and death.

What is an estate plan?

An estate plan is a group of documents created and designed around an individual’s personal and familial needs should they suffer an illness and/or death. While every person’s plan is unique, there are basic documents that an estate plan may include, such as a Last Will and Testament; Trust; Health Care Directive; Health Care Power of Attorney, Durable Financial Power of Attorney; Guardianship for minor children; Conservatorship for incapacitated or disabled adults, and more.

What happens if I get sick and cannot make my own decisions regarding my health care?

You need a health care power of attorney in order to control the decision-making on how to handle your medical care. Taking the decision-making out of your hands is not a good thing for you or your family. If you do not have a power of attorney, your family and your doctors will make important health care decisions for you. You may not think this is such a bad thing but what if you disagree with the decision your family makes; or, what if your family members or so upset with your condition that they are unable to make these hard decisions, or they cannot agree on how to handle your medical care. Leaving the burden on your family to make these tough decisions can cause mental anguish and harm familial relationships. It truly is your responsibility to make decisions for your health care and a health care power of attorney allows you to make these clear decisions and instructions and chose an agent to carry out your wishes.

What do I do when someone dies?

When someone passes away, initially you want to look for estate planning documents such as a will, trust, or contract with a funeral home. Unless there are emergency circumstances, such as the decedent leaving a minor child without a natural parent, during the first few weeks following a person’s death, the estate administration process can wait until you and your family and friends have celebrated the life of the person you have lost. Once you have been able to get all arrangements made, calling a lawyer to help you understand the estate administration process is recommended.

Why do I need to update or change my estate plan?

An estate plan should be updated or changed when there are significant life events such as marriage, the birth of a child or grandchild, adoption of a child, divorce, buying a home, winning the lottery, coming into a significant inheritance, or being diagnosed with a serious medical condition. You should view your estate plan as a document that needs to be adjusted throughout your lifetime because your plan is as unique as you are.

What happens if I die without a will?

When a person dies without a will, they are said to have died “intestate.” The state in which you live decides by statute, what will happen to your assets and will distribute them to your family members as your “heirs,” pursuant to that statute. Not having a will equals giving the state the control to distribute your assets to not only your immediate family members but to long-estranged relatives. I don’t think anyone would want this to happen to their family.

Why can’t I just use a form to create a will that I found online or in a store?

While free forms are available online and there are some stores where you can purchase inexpensive forms to fill-in to create a will or a power of attorney, you MUST make sure that you review your state’s requirements that make a will, a trust, or a power of attorney valid. If you do not create and execute a document properly, it will be deemed invalid.

What do I need to do if I have been named “Executor” of a will?

Being named executor of a will is a privilege that comes with great responsibility. Simply being named executor in the will does not give you the authority to begin engaging in financial transactions or gift distribution without the court formally naming you executor. You have a duty to the estate to pay all debts of the decedent, including a last tax return; secure the decedent’s home, protect the assets of the estate, and distribute the gifts in the will. As executor you have a duty to the estate and can be held personally liable for the proper handling of the estate.

I have been named executor of estate, what do I do?

Being named executor of a will is a privilege that comes with great responsibility. Simply being named executor in the will does not give you the authority to begin engaging in financial transactions or gift distribution without the court formally naming you executor. You have a duty to the estate to pay all debts of the decedent, including a last tax return; secure the decedent’s home, protect the assets of the estate, and distribute the gifts in the will. As executor you have a duty to the estate and can be held personally liable for the proper handling of the estate.

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