IMPORTANT ISSUES ABOUT YOUR WILL AND YOUR ESTATE MATTERS


IMPORTANT ISSUES ABOUT YOUR WILL AND YOUR ESTATE MATTERS

Is It Time to Bring Your Will in for a Checkup?

I often get the question, "I have a will that I made 20 years ago, do I need to bring it in and update it?" Of course, the obvious response is it depends on what your will says, but there are other issues to be concerned about as well. In my practice, I always try to draft wills that address the present concerns of my clients as well as any foreseeable changes that may take place in the future. Nevertheless, circumstances may arise and desires may change which create the need to do some fine tuning to a will. Here are a few things you may want to think about when considering drafting a new will or making changes to an existing one:

Who will represent you when you're gone?

Your last will and testament appoints a person or entity to handle the affairs of your estate after you pass away. This is known as the role of the Executor or Personal Representative. Often times, a surviving spouse is designated for convenience and trustworthiness, however, it is always important to name an alternate in the event the primary designee predeceases you or is physically or mentally unable to assume the position. If you have an old will, make sure your executor is still around and ask yourself if this is still the person you want to be responsible for these matters. If not, you might want to bring it in and let an attorney take a look under the hood.

Does my will have to name the same person as my power of attorney?

A power of attorney ceases to be valid once you die so the attorney in fact you appointed to handle your personal affairs while you are living has no bearing on what takes place after you are deceased. This is the role of the Executor or Personal Representative discussed in the preceding paragraph. Your will is entirely distinct from your power of attorney. You can appoint the same person to handle both jobs, but you need to do it in both documents. If you have a power of attorney but have not gotten around to drafting a will, don't presume the person you appointed can take care of your affairs after you are gone.

What about my grandchildren?

Twenty years ago you might have decided it was a good time to have a will drafted because you were a parent with young children and you wanted to make sure they were cared for if you passed away unexpectedly. Well, if you are fortunate to have lived long enough to avoid that situation you may wonder what will happen to your estate if your children pass away before you. Depending on how many children and grandchildren you have, your estate could be distributed in a different fashion than you might prefer. The law in North Carolina directs that the assets of an estate are distributed to the heirs of a deceased on a per capita basis. Folks, this is where the explanation can get messy, so suffice it to say that if you have a child that left one grandchild and another that left a litter of six or eight, you may want to make sure you have a will so that each of your heirs doesn't end up with a smaller piece of the pie than you intended.

I gave my ex enough when we got divorced, can I make sure the louse doesn't take anything else from me after I'm gone?

Divorce presents some critical issues in regard to your estate plans. The law treats a divorced spouse the same as if they were deceased when it comes to inheriting any devise or bequest made in a will. This is a reassuring thought, if not a desired one, to many divorcees. However, the same is not true for many of the documents that control assets you may think are a part of your estate. It might be a good idea to consult an attorney if you are divorced and have annuities, 401-K plans, insurance policies or other similar accounts to make sure those assets are distributed the way you want at your death and not the way you wanted when you wished you were dead.

A critical issue to the single divorcee with no children is who will inherit from your estate if your will left everything to your ex? In this case, there would be no devisee or heir, so your assets would pass according to the intestate succession laws of North Carolina. Surprisingly to most people, this does not mean the government will get rich off of your death but it could likely mean that the black sheep of your family might. If you are a Wolfpack or Blue Devil fan and you would rather leave everything to the Rams Club before you would give it to that greedy cousin or aunt or uncle of yours, you might want to talk to your attorney about how you can avoid this.

What can I do if I want to leave my children their fair share but I know they will just waste every penny?

Many wills have trust provisions in them that dictate what can be done with your assets even after you die. If you have a 35 year old child that still needs to be financially spoon fed, you can create a trust in your will to keep them from choking on their inheritance. There are limitations on how long you can control things in some cases but generally speaking, you can easily draft a will that prevents your heirs from getting everything at once without having to an inordinate amount of estate planning.

I just made a will last year and then we moved to North Carolina, do I need a new will?

If you had a will prepared recently then made the move from another state to the Old North State, your may find that your old will needs to be inspected by attorney in your new home place. Many times, a simple addendum to your will, known as a codicil, can incorporate all the provisions of your will and validate them according to the laws of North Carolina. This can be a fairly inexpensive way to insure you against legal changes that may have arisen as a result of your move.

Daddy's Dyin', Who's Got The Will?

Daddy's Dyin', Who's Got the Will is a not so well known book by Del Shores that tells the humorous story of a family anticipating the death of dear old dad. If your next of kin lives out in the barn and has offered to do a little spring cleaning for you before they straighten up the stall they share with Mr. Ed, you might want to think about putting your will someplace safe. There are several places to keep your will to insure it doesn't turn up "lost" after you're gone. A couple of examples include a bank or the courthouse in the county where you live or wherever you keep your important documents. In any event, after your attorney gets your will back up to speed, make sure you park it in the garage under lock and key to protect your investment.

Ashley Lamm is an attorney in the Charlotte office of Knox Law Center. The firm's website is www.knoxlawcenter.com. He can be reached at 704-315-2363 or 866-704-9059 (Toll free) or alamm@knoxlawcenter.com.

(written by C. Ashley Lamm)