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Things You Should Know About Will Contests

Written by kwmlaw on . Posted in Kelly & West News.

A will contest, also known as a “caveat”, occurs when someone, a “caveator”, challenges the legal validity of the will of a deceased will-maker, a “testator”, during, or within a limited period after, probate of the testator’s estate.  Contesting a will can be risky and expensive, and caveat cases are often complex.  Fewer than 5% of wills are contested, and most contests are unsuccessful. 

In the following, we’ll discuss who may contest a will in North Carolina and the three most common grounds for invalidating a will by a caveat.

Who may contest a will?

A North Carolina statute provides that “any party interested in the estate” may enter a caveat to the probate of the will.  North Carolina courts have construed “interested in the estate” to mean that a caveator must have some pecuniary or beneficial interest in the testator’s estate that may be detrimentally affected by implementing the contested will. 

Interested parties, potential caveators, include:

  • Beneficiaries named in the will being probated, 
  • Beneficiaries named in any prior will of the testator,
  • Beneficiaries named in any purported subsequent will of the testator, and
  • Family members who would inherit property from the testator’s estate under North Carolina’s intestacy laws if there was no valid will.

What are the most common grounds for will contests?

Failure to Comply with Formalities – North Carolina statues recognize three distinct kinds of wills and provide that no will is valid unless it complies with the statutory requirements for making a will of its kind.  So, a will is often challenged on the grounds that it does not satisfy the applicable requirements.  The three kinds of North Carolina wills, and the basic requirements for making each, are:

  1. Attested Written Will – a written will signed by the testator, or by someone else in the testator’s presence and at the direction of the testator, and attested by at least two witnesses.  The testator must signify to the witnesses, separately or together, that the instrument is testator’s will by either signing the will in their presence or acknowledging to them the testator’s signature thereon.  Each witness must sign the will in the presence of the testator.
  2. Holographic Will –  a will written entirely in the testator’s handwriting and either subscribed by the testator or with the testator’s name written in or on it in the testator’s handwriting.  No attesting witness is required to a holographic will.  Note that, in addition to the will’s meeting these statutory requirements, a North Carolina court will most often require testimony confirming that the holographic will was found after the testator’s death in a safe place where the testator kept valuable papers or effects (e.g. a safe deposit box) or in the possession or custody of a person, firm or corporation with which it was deposited by the testator for safekeeping.
  3. Nuncupative Will (applicable to bequests of personal property only) – a will made orally by a person in their last sickness or in imminent peril of death who does not survive such sickness or peril.  The person must declare that it is their will before at least two witnesses who are simultaneously present  and requested by the person to be witnesses thereto.

Lack of Testamentary Capacity – At the time of making a valid will of any kind, the testator must have had  “testamentary capacity”.  A North Carolina statute provides that the testator must have been “of sound mind”.  Under North Carolina law, a testator is presumed to have had the necessary testamentary capacity.  So, in order to successfully challenge the validity of a will, a caveator must prove, by a preponderance of the evidence, that the testator lacked such capacity. 

Proving that the testator was old, feeble, intellectually weak or physically infirm, or that the testator’s physical and/or mental health had declined significantly during the months preceding the making of a will, is not enough.  As a North Carolina court explained, there must be “specific evidence” that, at the time the will was made, the testator did not understand at least one of four essential facts:

  1. Who the testator’s closest living family members were,
  2. The kind, nature and extent of the property owned by the testator,
  3. To whom the testator’s will would leave the testator’s property, and/or
  4. The effect that making the will would have on the testator’s estate.

Evidence offered to prove lack of testamentary capacity may include testimony by the testator’s family, friends and caregivers describing irrational conduct of the testator around the time the will was made and/or by doctors explaining any prior diagnoses and treatment of the testator’s medical conditions such as dementia, Alzheimer’s disease or psychosis.  But, even when such evidence is offered, proving that a testator probably did not understand one of the four essential facts listed above when the will was made is still a high bar.

Undue Influence – A caveator arguing that a will is invalid because of undue influence must prove, by a preponderance of the evidence, that a person (the “influencer”) somehow coerced, or otherwise wrongfully took advantage of their relationship with, a vulnerable testator and thereby caused the testator to make a will that benefited the influencer, did not reflect the testator’s true desires as to the disposition of their property and would not have been made but for the influencer’s conduct.

North Carolina courts have described the kinds of facts and circumstances during the time leading up to and when a will was made, and facts about a will itself, that may be relevant in determining whether there was undue influence:

  • The testator is old and/or physically or mentally weak,
  • The influencer is constantly with and caring for the testator,
  • Family and friends have little or no opportunity to see the testator, 
  • The influencer arranges for the preparation of the will,
  • The will differs from and revokes a prior will,
  • The will favors the influencer or another person who has no ties to the testator by blood or marriage, and/or
  • The will disinherits and excludes the testator’s heirs such as a spouse or children.

If you have any questions about or need legal assistance in connection with a potential or pending will contest, call or contact us online at Kelly & West and arrange for a free consultation.

When and How Often Should I Update My Will?

Written by kwmlaw on . Posted in Kelly & West News.

A Will is a legal document that spells out what you want to happen to your property and possessions after you die. Many people set up a Will at some point during adulthood but then stash it away —  in a lockbox, safe deposit box, or buried in a closet bin believing they will never have to update it.

Photo by Agung Pandit Wiguna

Estate planning attorneys such as our team here at Kelly & West will also file a copy at the courthouse so that you’re all set. However, there’s one step you might be forgetting: updating your Will. 

In general, review your Will every three to five years to make sure everything is still accurate. There are also a few situations in life during which you need to tell your lawyers to make changes to this legal document. 

  1. Marriage/Divorce – In North Carolina, you cannot disinherit a spouse and if you are recently married you probably will want to include your spouse in your Will so you will want an update.   Divorce may not invalidate your Will but you will probably want to update to whom your assets are transferred following your death if it’s no longer your spouse. And if you remarry, consider updating your Will again, of course. 
  1. Moving to Another State – The Will you create in North Carolina may be valid, but if you permanently relocate, you’ll want an attorney licensed in the new state to review your Will and he or she may even suggest making a new one, as many state laws differ.  Probate laws vary by state also. Having your Will updated will make it far easier for your heirs to figure things out after you die.   
  1. New Children or Grandchildren – Typically, when creating a Will, parents appoint a legal guardian to care for their children in case the worst happens. Children are also usually listed as secondary beneficiaries after the spouse. As you add children to your family, be sure to update your Will to list them and ensure that they are included.  Then, if you have grandchildren and wish to include them in your Will, you will want to let your attorney know as generally grandchildren are not included automatically by law in North Carolina unless your children die. 
  1. Significant Changes in Assets – When you buy a new property, boat, motor coach, or something else large, let your estate planning attorney know about it. That way, you can add it to your Will and reassess how your assets are to be distributed.
  1. Severe Health Problems – If you have a heart attack, stroke, cancer, or other severe health crisis, you undoubtedly have a lot on your mind. However, it’s critical to sit down with your attorney to confirm everything is how it should be with your Will and especially in your Power of Attorney.  A Power of Attorney is so important in protecting you as it can allow your agent to do things for you privately, without court involvement and/or supervision.  

 These are just some of the occasions in life when you need to update your Will. Contact us today if you have any other questions about your Will or estate. 

Dear New Dad: Time to Set Up Your Will

Written by kwmlaw on . Posted in Kelly & West News.

Happy Father’s Day this month to dads old and new! If you’re a new dad in North Carolina, you may not have a Will set up. Why would you? For most people in their 20s or early 30s, a Will seems unnecessary. If you’re single or don’t own property, you might not think you need to put in place any legal processes. new dad with infant baby why you need a Will Kelly & West attorneys

Once you become a parent, “create a Will” should definitely go on your to-do list! Here’s why:

Why New Parents Should Set Up a Will

  • By setting up a Will, you get to decide who gets your money and possessions. You may not have much, but what you have you probably want to be given to your spouse and/or child.
  • Without a Will, your assets may be left hanging for a year or more while the process works itself out in the court.
  • Meanwhile, your bank accounts, assets, and family information are listed in the public record.
  • If you don’t have a Will, a member of your family will have to figure all this out without you. He or she may not direct your assets as you would wish.
  • As you create a Will, you can also determine who will care for your child if you die before he/she turns 18.
  • While you could handwrite a Will, there’s no guarantee someone will find it and submit it to court, and it could be lost or destroyed over the years and may not even be a valid Will.
  • Setting up a Will does not take long, and it’s often not expensive.

Questions about creating a Will in North Carolina? Read more. Or contact us to get started on creating a Will in Harnett County.

Other Estate Planning Resources

The Kelly and West team have been helping people set up Wills, Trusts, and Living Wills for decades. We’ve compiled a lot of helpful information on this topic. Here are some of those resources:

What’s the Difference Between an Executor and a Beneficiary and Can They Be the Same?

Written by kwmlaw on . Posted in Kelly & West News.

Executors and beneficiaries have a unique relationship under the law. An executor manages a deceased person’s estate and a beneficiary is an individual who will inherit that property. While the executor and beneficiary can be the same person, you should give it some thought when drawing up your Will.

The Executor’s Role

An executor is an individual who is in charge of managing a deceased person’s estate. An executor’s duties include gathering assets, notifying creditors, paying valid claims, and distributing assets to beneficiaries.

An executor has a fiduciary duty, which means an obligation of utmost loyalty; he or she must not take actions that would benefit him or herself or other beneficiaries at the expense of the other beneficiaries. The executor must ensure the deceased’s assets are accounted for, debts paid, and estate taxes filed, if necessary. The executor is also responsible for ensuring there are as much of the deceased’s assets to distribute to the beneficiaries as possible.

Even if a person is named as the executor, he or she does not have to accept that position. He or she may decline the appointment immediately or during the process if unable to complete the executor’s responsibilities. An executor is also able to consult with attorneys, accountants, and other professionals to ensure the estate is being properly managed.

A Beneficiary’s Rights

A beneficiary is the individual or individuals named in a will that will inherit property from the deceased. Anyone can be a beneficiary, a spouse, children, other relatives, friends, and even charities.

Beneficiaries have rights that entitle them to information about the estate from the executor. Beneficiaries may ask what assets are included in the estate, how much debt the estate must pay, and which assets will be used to settle the said debt. Asking for ongoing reports from an executor is perfectly normal.

Can the same person be the executor and beneficiary?

Yes, the executor and beneficiary can be named as the same person in the Will. It’s perfectly normal and legal. It’s actually a common approach because the executor should be someone you know and trust and it’s common sense that your beneficiaries fall into that column.

Conversely, an executor may be someone you know that is not a beneficiary. Maybe you want your four children to inherit everything, but instead of putting one of them in charge, you name your sister or best friend to act as an independent executor.

Downsides

The beneficiary is the one who benefits from the executor’s work, so if you have a number of beneficiaries, it may be easier to separate those roles in order to simplify relations among all parties.

The executor has an equal responsibility to each beneficiary to ensure the property that the deceased wanted them to have, gets passed on. If one of the beneficiaries is also the executor, this process can become difficult, especially if assets must be sold to pay debts. Closing an estate and dividing assets can become increasingly difficult if there are multiple beneficiaries with one of them acting as executor.

Making the Choice

Choosing your executor is important. You want to be confident that whomever you choose will be able to carry out the role of finalizing your estate and doing so fairly. Remember, being an executor may involve calculating the value of your estate, calculating any taxes owed, selling or transferring property or investments to pay off debt, and that’s all before the duty of distributing your estate to your beneficiaries.

Because of the work involved, and the fact that an executor can be found personally liable if anything goes awry, choose carefully and ask their permission first. Whichever route you go, it is vital that the executor and all beneficiaries have a clear understanding of their rights in regards to an estate in order for things to go as smoothly as possible.

If you have any questions about your estate or need help choosing the appropriate executor, please contact us.

5 Things a Newspaper Column Got Wrong about Wills in NC

Written by kwmlaw on . Posted in Kelly & West News.

While we enjoy reading the newspaper and support our local organization, we were distressed recently while reading a column about creating a Will. While the intentions were probably right, a lot of the facts were incorrect. The column was no doubt published in multiple newspapers across the U.S., and the laws surrounding Wills are different in each state. Here are some of the statements we found along with accurate information for our North Carolina friends.

The Right and Wrong about Wills in North Carolina

  • Statement: Assets go first to a spouse, then your children, then your siblings, and so on.

Fact: In North Carolina, assets are typically shared by the spouse and the children, and if one dies married without children, the assets may be shared by the spouse and the deceased person’s parents.

  • Statement: Creating a Will with a do-it-yourself software program may be acceptable in some cases.

Fact: We know it seems self-serving, but creating a Will with a do-it-yourself software program is never acceptable and may not even be legal in North Carolina. First, you may not say what you meant to say, and you won’t be around to explain it. Also, fill-in-the-blank Wills may not be accepted by North Carolina courts, so you may spend quite a bit of time drafting something that your family can’t use.   

  • Statement: Quicken WillMaker Plus software valid in all states except Louisiana.

Fact: Again, DIY software can create documents that you pay for but then can’t use. Even the article author recommends having an attorney to review the Will to be sure it complies with state law.

  • Statement: Costs vary, but you can expect to pay $200 to $1,500.

Fact: The average cost of a Will with a lawyer’s help is $200. A basic Will won’t break the bank.

  • Statement: The best place to keep your Will is in a fireproof safe or file cabinet at home or safe deposit box at the bank.

Fact: In North Carolina, if you lose your Will or it is destroyed, you are presumed to die without one. That’s why it’s critical to store it in a safe place. We recommend that you put your Will on file with the Clerk of Court. This is a free service offered by most counties, including Harnett County, and this ensures that your Will is kept safe. When it’s stored with the Clerk, only you can retrieve it before your death; no other family member can access it before you die. Plus, the Clerk of Court’s office is where the Will should end up after you die as part of the probate process, so it will already be in the right place when you pass.

What the Column Got Right about Wills

  • Statement: Be sure to update if circumstances change or you move. — Yes! This is especially critical if you move to a new state, because Wills and power of attorneys are state-specific documents. What is acceptable in one state may not be valid in another state.
  • Statement: The National Academy of Elder Law Attorneys (NAELA) and American College of Trust and Estate Counsel (ACTEC) are good resources when searching for lawyers who can help plan your estate. — Yes! Our team member Elizabeth Murphy is a member of the NAELA.

If you have questions about creating your Will in North Carolina, contact us to learn more.

8 Things You Probably Didn’t Think about When Planning Your Estate Until You Had to Deal with It

Written by kwmlaw on . Posted in Kelly & West News.

Estate Planning is making sure things are in order before your death or if you are incapacitated. Usually, when you hear those words, you might think about who will inherit your car, or what money will be allocated to your children when you pass away. However, estate planning covers a lot more information than many people assume; in fact, it can be a little disorienting to work out all of the necessary details. Luckily, the attorneys at Kelly & West are happy to help you through the process and ensure that all of your plans are thorough and well-organized.

If you’ve already met with a Kelly & West attorney to discuss your estate planning, you probably encountered many topics that you hadn’t previously considered. If you haven’t completed your estate planning yet, here are eight things you may not think about until you have to deal with them!

1. Your Starting Point: It’s never too early to start the estate planning process! Of course, we all hope and expect to live until we are “old,” but it’s better to get started early in adulthood. While it can be an uncomfortable topic to consider, estate planning can be especially critical for the well-being of your family, friends, and of course, you!

2. A Living Will: This is also called A Desire for Natural Death or an advance directive. This document lets a person state his or her wishes for end-of-life medical care, such as life-support and feeding through tubes, in case they become unable to communicate their decisions for themselves. A living will has no power after death. Take some time to think about your wishes regarding life support before meeting with your attorney.

3. Digital Footprints: In this day and age, it’s essential to consider who you would like to have access to your digital belongings. This could include online banking, blogs, photo storage files, social media logins, and more. Make sure to put a plan in place for someone to access these things after you’re gone. Some password programs give you the option of choosing an emergency contact, such as a partner or spouse, for this reason.

4. Insurance Policies: One step in the estate planning process is determining what your assets are, which includes insurance policies. Auto, health, life, and homeowners’ policies should be reviewed to make sure that those assets pass to whom you would like to receive them after death. Most people don’t know it, but they actually are not controlled by the will but by beneficiary designation.

5. Identifying Assets: In addition to your insurance policies, you’ll need to define the rest of your assets. From real estate to valuable baseball card collections, make a list of these items.

6. Will, Trust, & Deed: A will, trust, and deed determine where those assets will go after their owner’s death. Each document has a slightly different purpose; a will determines inheritance allocation, a trust determines how and when that inheritance will be distributed, and a deed can determine who will receive real property.

7. Raising the Kids: While it can be a hard topic to talk about, estate planning helps parents prepare for worst-case scenarios. Your documents will include instructions regarding who will inherit guardianship of your children, should events require such a transition.

8. Edits: Life changes; your will should change, too. If time passes and you determine that you would like to disinherit an ex-spouse from your will, update your documents to include new assets, or change your Power of Attorney plans, edits can be made, and this is encouraged!

Estate planning allows you to relax knowing that your family, friends, and belongings will all be taken care of, even after you can’t be there to do it personally. To begin your estate planning process, talk to us.

12 Estate Planning Terms You May Not Know

Written by kwmlaw on . Posted in Kelly & West News.

Estate planning is making sure things are in order before your death or in the event that you are incapacitated. When working with an attorney to plan your estate, you may hear some new terms. We want to make sure everything is clear while you are making these important decisions, so here is your personal estate planning glossary.

  • Beneficiaries – The persons and/or organizations who receive or benefit from the trust assets after the death of the trust grantor.
  • Disinherit – To prevent someone from inheriting from you.  You cannot disinherit a spouse in North Carolina without his or her consent.
  • Estate – A fictitious legal entity set up for the purpose of collecting assets and paying debts after the death of an individual.
  • Joint Ownership – A form of ownership in which two or more persons own the same asset together.  There are two types of joint ownership.  Joint ownership with right of survivorship and joint ownership without right of survivorship.  Joint ownership with right of survivorship allows the surviving owner(s) to take the deceased person’s’ interest after death, automatically, usually by operation of law.  Joint ownership without right of survivorship means that the deceased person’s interest generally passes pursuant to the deceased person’s Will or pursuant to North Carolina law if the deceased person did not have a Will.
  • Living Will – This is also called A Desire for Natural Death or an advance directive. This document lets a person state his or her wishes for end-of-life medical care, such as life-support and feeding through tubes, in case they become unable to communicate their decisions for themselves. A living will have no power after death.
  • Personal Property – Movable property such as furniture, automobiles, equipment, cash, and stocks. This is unlike real property, like land, which is permanent.
  • Power of Attorney – The authority to act for another person in specified, financial, or all legal matters. A power of attorney has no power after death.
  • Revocable Living Trust – A written agreement that appoints a trustee to manage and administer the property of the creator. Unlike a will, a trust does not die with you. Assets can stay in your trust until the beneficiaries reach the age you want them to inherit.
  • Uniform Transfer to Minors Act (UTMA) – A law enacted in many states that allows you to leave assets to minors by appointing a custodian. Most often, the minor will receive the assets at age 18.
  • Will – A legal document by which a person, decides how to distribute his property at the time of his death. One or more persons will be named the executor to manage the estate until it is distributed.

You have the choice to let the courts handle your business or handle it by your family — but the latter means taking care of some things now. Contact us to have a say in your family’s future by starting your estate plan.  

Figure Out Estate Planning During a Free Seminar on Living Trusts

Written by kwmlaw on . Posted in Kelly & West News.

Life is unpredictable; it is never too early to prepare for the future. Have you considered what may happen to your assets once you or someone you love pass away? Some people may assume that having a Will is all you need, but sometimes it isn’t enough to protect your estate. You may want to consider creating a Living Trust.

Do you have questions about Living Trusts and estate planning? Kelly & West will be hosting a free Living Trust Seminar May 23 and May 24.

To register, call 1-800-849-0213.

Seminars are an excellent way to learn more from the experts. Enjoy a professional, comfortable, and open environment where you can get answers about what is best for you and your family in the estate planning process. Participants will receive a continental breakfast and are entitled to a free consultation after completing the seminar.

During the seminar, you will learn:

  • The benefits of a Living Trust
  • How to avoid probate and how to minimize federal estate taxes
  • How to safeguard small children and children with disabilities
  • How to avoid court-appointed guardians if you become incapacitated

The estate attorneys at Kelly & West know how to give the best advice. We have helped many North Carolina families plan their estate, and we have been doing so for more than 30 years. Join us at one of the two events:     


Tuesday, May 23
10:00-11:30 a.m.
Lillington Sports Zone
320 E. Cornelius Harnett Blvd. Lillington, NC
(Located next to Microtel Inn & Suites)


Wednesday, May 24
10:00-11:30 a.m.
Lillington Sports Zone
320 E. Cornelius Harnett Blvd. Lillington, NC
(Located next to Microtel Inn & Suites)

To register, call 1-800-849-0213.

*Space is limited, so please register to secure your spot.

When Should You Begin Estate Planning?

Written by kwmlaw on . Posted in Kelly & West News.

Estate planning may seem like one of those things you can do “later.” But in truth, it’s never too early to begin thinking about your estate. Life happens, and anything could happen to you or a loved one sooner than expected. The sooner you can sort out your affairs for your surviving family members the better.

What is Estate Planning? 

man writing will
Photo via Visualhunt

Estate planning is the process of determining what happens when you die or are incapacitated. It can be a tough, sometimes uncomfortable thing to think about, especially when you are in good health, but unfortunately many people overlook this process and when tragedy strikes it is that much harder for their loved ones to manage everything. Generally speaking, the estate planning process involves creating a will and designating a power of attorney and a medical power of attorney. In some cases, estate planning can also include a trust and funeral planning requests.

How to Begin Estate Planning

Assets — The first step in the process is to take stock of all of your assets. These include any investments, your retirement accounts, insurance policies, real estate, business interests and other financially or emotionally valuable items. This would include things such as jewelry, cars, baseball card collections — basically anything that might hold deep personal significance to you.

Will — The next step involves creating a will, which will indicate what you want to happen with those assets after you’ve passed and who should inherit them. This part of the process also involves setting up a fund for any long-term care you might need in an assisted-living facility or nursing home, appointing guardians for your children, or setting up a trust for a child with a disability. You should re-evaluate and update your will often to reflect any changing circumstances in your life such as a new marriage, divorce, or new children and you should consider review your plan at least once every 3-5 years, even without a change in your circumstances to make sure your plan is up to date.

Business & Personal Affairs — During this time, you also want to carefully consider who you would want to handle your business affairs and medical care in the event that you become incapacitated. These individuals would have power of attorney and medical power of attorney if anything were to happen to you. Thus, it is very important that you choose individuals whom you trust and know will respect your wishes.

Next Steps

After making your individual bequests, it is important to sit down and discuss your plans with loved ones. The sooner you clearly outline your intentions to your family and friends, the less likely there will be disagreements that arise after you’ve gone.

Remember that every estate plan is unique. If you would like to begin the process of estate planning, contact us so you can start planning for your future immediately.

The Ultimate Checklist to Plan Your Estate

Written by kwmlaw on . Posted in Kelly & West News.

Estate planning is not something most of us want to do. Planning what will happen after we are gone reminds us that we will not be around forever. But it’s important to make these decisions now so that your family is prepared. Start your estate planning as soon as possible so you can protect your family from any obstacles that may be encountered along the way.

While many people assume estate planning is complicated, it does not have to be an onerous process. Use this handy checklist to help you and your family know what documents you may want to consider. Not everyone will need all of these items, but this list is a great place to start when discussing your estate with your Kelly & West attorney.

The policies and documents you may need include the following:Chris Potter

  • Will

Who is going to inherit your property? Who will be named guardian of young children? How will your estate be divided among family members? A Will states your answers for all of these questions and more.

  • Trust

Trust can help you make decisions that go into effect before your death and avoid administering your estate with the court after you die. It explains in detail, how and when assets pass from the trustee to the beneficiaries. It simplifies the process for your family and provides extra protection for you and your loved ones.

  • General (Financial) Power of Attorney

This document gives an agent the power to act on your behalf, either now or when you become incompetent.  This document can be durable and last through incompetency or it can spring into effect only if you become incompetent.

  • Health Care Power of Attorney

This document grants your agent the power to make medical decisions on your behalf. Who your doctor will be, what treatments you will receive, and what hospital you will use, are just a few examples of the powers your health care attorney can have.

  • Living Will

A living will has no power after your death. It does, however, state your wishes regarding life support and feeding through tubes should you have no chance of recovery. Living wills are especially important for cases where you become unable to communicate your wishes.

  • Limited Power of Attorney

A document providing specific powers that an attorney may have. Selling property, collecting debts, and other financial transactions are some of the common uses of a Limited Power of Attorney.

Make sure you keep all of these documents and policies organized so you will be prepared for anything. Start planning today so your family members have a better tomorrow.