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Tag: Will

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. 

Your Legal Needs Through the Years

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

Hiring a lawyer isn’t something most people do every day, so the process can feel intimidating. Often people think they may not need a lawyer at all, unless they are hurt in an accident. But there are plenty of times in life when it’s useful to turn to an attorney for guidance. We’ve created a fun infographic to show some of the stages of life when you should call Kelly & West to help, from traffic tickets to planning your estate.

Learn more about each of these stages.

16+ – Traffic Ticket

18 – Health Care Proxy and Power of Attorney

31+ – Real Estate/Buying a Home

30-35 – Will and Estate Planning

39 – Workers’ Compensation or Personal Injury

45 – Update Your Will

55 – Elder Law/Nursing Home Abuse (for your parents)

65 – Estate Admin/Probate (for your parents)

Update Your Will/Continue Estate Planning for Yourself

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.

What is an Ethical Will and How Can You Create One?

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

As you may know, a Will is a legal document in which you express your wishes about your property after death. The document helps you pass on your physical belongings and money.

But you might find yourself wanting to hand down something else after you’re gone: wisdom. In that case, consider writing an Ethical Will.

An Ethical Will is a way of passing down values or lessons learned. Passing on wisdom and life values to the world and our loved ones is important. Death can cause huge burdens and stress on loved ones, but having an Ethical Will can offer your family slight peace of mind. Ethical Wills may help connect generations, providing more insight to grandchildren about your life.

Ethical Wills date back more than 3,500 years, traditionally used by Jewish people to hand down values. Although they are not legally binding, more people are adding Ethical Wills as a way to pass on their legacy. Today, people are using technology to create Ethical Wills using photos, PowerPoint presentations, or even video, creating a powerful, personal message for family and friends.

How do you begin writing an Ethical Will?
This is a personal document, so there is no right or wrong way to create it. Some themes to include:

* Life lessons, whether that be in your professional career, love life, travels, hardships, and relationships.
* Your deep thoughts and feelings toward your family and friends.
* Your favorite people, experiences, memories, foods, places, objects, etc.
* Your regrets: What would you choose to do differently?
* Your best and worst moments, how they defined you and what you learned from those situations.
* People you want to forgive, or from whom you’d like to ask forgiveness.

Most people do not know when their time is up; death does not escape anyone. You can write an Ethical Will anytime. A woman might write to her unborn child during her pregnancy. A man might write to his grandchildren.

Like with your legally binding Will, consider updating this document or adding to it throughout the years. If you have questions about an Ethical Will, contact us for more information.

Link in the post to:
Top 10 Reasons You Need a Will: https://www.kelly-west.com/wp-content/uploads/2014/04/KW-Top-10-Reasons-You-Need-A-Will.pdf

What Happens if You Die Without a Will in North Carolina?
https://www.kelly-west.com/happens-die-without-will-north-carolina/

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.

A Living Will: The Missing Piece of Your Estate Plan

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

When the time comes to arrange the details of your estate, most people think of their final Will and whom will inherit. Another critical and often overlooked factor is your Living Will. Also known as an advance directive, a Living Will allows an individual to officially declare his or her wishes in the event of a medical emergency where one cannot make medical decisions for himself or herself.

According to a study in 2017, only about one in three U.S. adults creates a version of this document. People are often unsure about this document, so here are answers to the most frequently asked questions.

Why should I have a Living Will?

A Living Will allows you to be in control of decisions made regarding your health when you are unable to verbalize these instructions. This includes the use of feeding tubes and life support if your condition requires such action. If you are suffering from a chronic disease, you may opt to receive palliative care in order to alleviate any pain and discomfort, but maybe you don’t want extraordinary measures to be taken. A Living Will offers guidance on these issues for both family members and medical professionals. That way, what happens to you is due to your wishes rather than the emotions of your family members or the duties of medical professionals.

What happens if I don’t have a Living Will?

In the absence of a Living Will, medical personnel will rely on the decision of your health care agent under a Health Care Power of Attorney, if you have one. If you don’t have a Health Care Power of Attorney, generally your doctors will communicate with someone, often your next-of-kin. This can put your loved ones in an extremely difficult position if they are unsure of where you stand on the matter. In some cases, a family member’s choice has caused legal disputes later.

How do I create a Living Will?

A Living Will, referred to as a Desire for Natural Death in the state of North Carolina, is a legally binding document that takes effect as soon as it is signed, yet can be revoked by you at any point. Living Wills are different in each state, so it’s important to talk to a lawyer where you live while managing this part of your estate planning.

If you or a loved one is interested in creating a Living Will, the law offices of Kelly & West have the experience and expertise to assist in any and all stages of the estate planning process.

What Happens if You Die Without a Will in North Carolina?

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

Have you decided to create a will? A will allows you to choose how you want to distribute your estate once you have passed. Having a will means you decide who gets your property and money.

Wills can:

  • Explain how to distribute your assets.
  • Name an executor to collect and distribute funds with court supervision,
  • Name guardians for your children,
  • Forgive your debts.

Dying Intestate

If you die without a will in the state of North Carolina, you die intestate, which means the court will decide how to divide your estate without your input. Once your expenses have been paid, the remaining assets in your estate are divided according to North Carolina’s intestate succession laws. Your property will be divided among your closest relatives, usually your spouse and children. If you are not married and don’t have children, then your property is distributed to your parents, if they are alive. If not, your property will be distributed to your siblings, and possibly also to your nieces and nephews.

Instead of having a friend or family member designated by your will to decide the fate of your assets, an unknown court-appointed administrator will be appointed.  Also, North Carolina law decides the fate of your children!  In other words, they will decide who takes your children and manages your money for them and this may not be who you want to appoint!  Thus, it is vital that you speak for yourself and that you use a will to name a guardian if you have children.

No Family

If you have no living family members, your estate may go to the State of North Carolina, to be held in a fund that may be able to be claimed by a distant family member in the future, if they are aware of the fund and make a claim. While deciding how to administer your estate, the court will also appoint an administrator, similar to an executor, who will pay debts and any funeral or court expenses.

Contact us at Kelly & West and we will answer any questions you have about creating a will in North Carolina.

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.  

Why You Should Use a Lawyer Instead of an Online Site for Your Will

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

We know you’ve seen or heard about websites that offer do-it-yourself legal services. Maybe willyou’ve met someone who can set you up with a Will for a low cost. You’ve weighed your options: pay for a lawyer or complete a much cheaper online template? We’ll admit it can be tempting, but with those savings comes a bit of a headache. Here’s why we suggest choosing a lawyer over an online service for your North Carolina Will.

False Sense of Security

You often don’t know if there are errors in your legal documents until too late. Errors in a Will are often only revealed after death. Similarly, problems in a contract are not normally identified until the parties are already engaged in a fight and looking at the contract to provide legal backing for their side.

One of the biggest issues that people have encountered when using do-it-yourself document preparation sites is that consumers are left with a false sense of security after completing these documents by themselves. Online legal documents can be out of date, inaccurate, or just flat out wrong, which may get your documents thrown out of court. Some of these websites do not use the standard state forms, which means a county clerk may reject it. Also, fill-in-the-blank Will forms are not always valid under North Carolina laws.

Small errors can have significant consequences. When the stakes are high, the last thing you want is errors in your legal documents. In one recent case, a missing comma cost a company millions of dollars.

May Not Provide the Counsel You Need

Planning for the future of your family or estate rarely is as simple as an online template would lead you to believe. Every situation is unique and should be treated as such as such.

Unfortunately, the disclaimer of online legal sites that their services are clearly not a substitute for the advice of an attorney, a lot of people use these websites with the mindset that by purchasing these services they can completely dodge hiring a lawyer, and therefore do not double check that their documents are executable.

Even with their guarantee of legal professionals on-hand to help, an online service is not a law firm. When you’re filling out these forms online, the company is not permitted to review any of your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.

If you are thinking of drafting up legal documents whether that be a Will, contract, or power of attorney, please contact Kelly & West Attorneys. We will walk you through the process of setting up these documents with excellent customer service and over 30 years of experience. Let us help you prepare for the future.

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.

8 Questions about Creating a Will in North Carolina

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

Creating a Will is something many people put off. We don’t want to think about what happens after we die, and we always think we have more time to get our Will done.

This New Year’s, it’s time to make a resolution: get your Will done as soon as possible. Creating a Will with your attorney is easier and probably less expensive than you think. We often hear questions about the process, so here are some of the most frequent questions along with answers:

How much does it cost to create a Will?

An attorney can help you through the process and ensure professional aid when drafting your Will. Prices can start as low as $200.00 to get the Will done, so it’s very economical, even when you get an attorney to help you.

While there are services online that help with Wills, some of these do not create valid documents. Please ask us about a particular service you are considering.

How long does it take to create a Will?

Creating a Will may be done quickly or take weeks to complete. This all depends on your situation. If you have few assets, not a lot of property, and one or two beneficiaries, creating a Will can be as quick as a few days. Wills take longer if your estate is more complicated.

Do I need an attorney? Can I hand write my Will?

This all depends on your situation and finances. Of course, having a qualified expert on your side will aid you tremendously since attorneys know the rules of the game and how to benefit you the most in the end. You are not only paying for the Will, but also to ensure that proper measures are taken for all your assets.

North Carolina considers holographic (handwritten) Wills legal if found after death in place intended for safekeeping. However, there is no guarantee this Will may be found or entered into the record, so it’s best to at least make someone aware of its existence if you do not want to create an official document with an attorney.will and trust

Should my spouse and I have a joint Will or separate Wills?

We do not recommend a joint Will because you cannot probate them separately, thus this makes it very difficult to probate the Will and administer the estate of the second spouse to die.  Also, the surviving spouse needs to have the ability to make changes to his or her Will, which is very difficult to do with a joint Will.

What happens if I die without a Will?

If you die without a Will in North Carolina, then your estate is distributed according to intestacy laws. Your property will be divided amongst your closest relatives – your spouse and children. If you are not married and don’t have children, then your property is distributed to your parents, if living, or to your aunts, uncles, nieces and nephews, if your parents are not living upon your death. If not survived by any family members, your estate may escheat to the State of North Carolina, to be held in a fund that may be able to be claimed by some distant family member in the future, if that family member is aware of the existence of the fund and makes a claim.

Where should I keep my Will?

You need to store your Will in a place that is safe from water, fire, and smoke damage. You also need a place that is safe from theft. We recommend that you allow the Clerk of Court in the county in which you reside to deposit your Will for safekeeping.

Some people prefer to store their Will in a safe deposit box at the bank or in their home. If you do choose to use a safe deposit box, make sure your executor and beneficiaries know where it is and how to open it. Also, grant your executor the legal ability to take possession of your Will upon your death by making sure they can open your safe deposit box after you die.

Whom should I name as executor?

Your executor should be someone that you trust and have known for a very long time. This person will have complete access to your Will, and the obligation to make any financial decisions needed upon your death. Consider immediate family members and your spouse before anyone else.

How often should I update my Will?

We suggest that you look at your Will every couple of years. Changes need to be made due to certain circumstances. Consider the list below.

  • Changes in the law
  • Change in finances (successes and failures)
  • Change in your health
  • Change in committed relationships
  • Becoming a parent or grandparent
  • Losing a spouse or children

If you find yourself in any of these situations, update your will as soon as possible so that your assets can be divided exactly as you plan. Otherwise, you may leave your family with a state or court-ordered decision.

If you have any more questions about what is best for you and your family’s future, don’t hesitate to contact us. Call us today for a free consultation and let Kelly and West protect you and the ones who matter the most.

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.

Don’t Wait Until Too Late: Make End-of-Life Decisions Now

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

Power Of Attorney
Photo by Ken Mayer

We all live in the “rat race,” rushing around trying to check off our to-do lists. It’s tough to think what would happen if we weren’t competent to manage our affairs and to do the things we do. Who would care for us? Who would take care of our personal and financial business?

The best time to plan your affairs and plan what happens after you die is when you are unlikely to be sick or die in the near future. Pre-planning is easier and allows you to calmly detail the steps you would like taken in the event you are incompetent or die suddenly. Make a plan to get your affairs in order by the end of the year.

Documents You Need
Power of Attorney — This is the most important document you need. A Power of Attorney appoints someone else to make decisions for you in the event you become incompetent or unable to make your own decisions.
There are two types of Powers of Attorney in North Carolina: a General (or Financial) Power of Attorney and a Health Care Power of Attorney. The first appoints someone else to make financial and business decisions for you if you become incompetent or incapacitated (i.e. bedridden). The second names someone to make medical decisions for you if necessary.

If you do not have a Power of Attorney and you become incompetent, you may have to go to court, be declared incompetent and have a guardian appointed for you – a very timely and fairly expensive process. Additionally, your guardian will have to account to the court each year for how your money is spent; it can only be spent in accordance with the law. Given this inflexible process, we recommend you avoid this by setting up your Power of Attorneys documents now.

Living Will — Another very important document is a Living Will (formally called a Desire for Natural Death in North Carolina). This document details your wishes concerning life support and feeding through tubes, should you find yourself in a hopeless circumstance where death is imminent. This can be a great gift to family members who are trying to make decisions because it offers your specific instructions on the use of ventilators, respirators, feeding tubes, saline IVs, and more. Living Wills are inexpensive and save countless hours of anxiety for family members.

Photo by Safak TORTU
Photo by Safak TORTU

Trust — We often are asked, “What can I do today to make it as easy on my loved ones as possible when I die?” The short answer: a Trust. A Trust is a legal document that allows you to avoid probate, maintain your privacy, protects you in the event that you are incompetent or incapacitated, and may even allow you to avoid certain taxes.

While a Will is good, Trusts enable you to avoid “probate” (i.e. opening an estate with the court when you die) because legal title is no longer held by you, but is transferred to you or someone else as Trustee. A Trust can be set up to manage money or property for the lifetime of the beneficiary, to provide for education of a beneficiary, to protect a spouse, or to accomplish countless other goals, thereby making it very flexible alternative to a Will and a great option.

A Trust costs more up front, but it saves time and money in the long run. If you have a properly drafted and funded Trust, your family is often able to settle your estate in only a day or two!

Will — A Will is necessary for anyone who doesn’t want the state to decide who will take their stuff. Most Wills are relatively simple and name a person to administer the estate after death (called the “Executor”). They often provide for a spouse or a loved one, but if you only have a Will without a Trust, chances are your family will still have to go through probate and open an estate with the court when you die. This process can take a year or more to accomplish and the title for many assets will often be held by the Executor during this time. Therefore, we encourage all clients to consider a Trust to avoid the costs and delays attendant to probate and the estate administration process.

If you have questions regarding a Will, Trust, or Power of Attorney, please don’t hesitate to contact us.