Estate planning is more than simply deciding who gets your assets after your death. It includes a wide range of matters, such as (1) planning for yourself and for your family in the event you become incapacitated; (2) the appointment of guardians for your minor children, if any, in the event of the deaths of both parents; (3) the protection of assets for minors, for beneficiaries who cannot manage money, are incapacitated, or otherwise need asset protection; (4) planning for family members who are nonresidents or noncitizens of the United States; and (5) planning for a myriad of other personal issues for your family, including tax planning.
Please note that the reasons listed above for estate planning are not necessarily limited to wealthy individuals. It can be important to a person of modest means to see that his or her assets are used to benefit the proper beneficiaries in a wise and appropriate manner.
We hope the following discussions are helpful:
Wills are a common estate planning tool and are usually the most basic device for planning the distribution of an estate upon death. Wills that are 100% handwritten by the Testator are called “holographic” wills and do not have to be witnessed, provided at least two witnesses attest to Court as to the Testator’s handwriting. North Carolina wills that are not entirely in the Testator’s handwriting must have two witnesses, and preferably both witnesses and the Testator will sign in the presence of a Notary Public. Unless a Will is filed with the Court and is found by the court to be valid, the purported Will has no legal significance, so any paper which purports to be a will should be filed with the Court and you should request the Court to “probate” the Will (i.e., to certify the document to be valid). By the way, a Will can be probated (i.e., certified) without having a full court administration.
Probate (Court Administration):
One meaning of “probate” is the process where a decedent’s will is presented to the Probate Court (i.e., The Office of the Clerk of Superior Court) and the Court determines whether or not the will is valid. In an effort to avoid confusion, we will refer to this process as “probate (certification).”
If the will is found to be valid, an Executor may be appointed to take control of the decedent’s assets, and to notify creditors by direct notice and/or publication of a newspaper notice to creditors. This process is also called “Probate” of the Estate, and to avoid confusion we will sometimes refer to this process as “probate (administration).” The Estate pays valid claims and the remaining assets are distributed to the beneficiaries pursuant to the terms of the will. When these things have been done properly, the Probate Court will close the estate file.
Probate Avoidance (or Avoiding Court-Supervised Administration of an Estate)
Since probate (administration) is a matter of public record, the family can maintain some privacy, while saving some court fees by avoiding probate (administration). That can be avoided in several ways: by joint ownership of assets or by naming beneficiaries in ownership documents, which will pass outside probate. Revocable trusts also hold assets in the name of the trustee, and the trust’s assets do not pass through court probate (administration).
Consequently, many individuals seek to avoid probate (administration), or at least to minimize the process, by a combination of joint accounts with survivorship, by naming beneficiaries for transfer on death of bank and brokerage accounts, and by naming beneficiaries for other assets, including life insurance and retirement accounts. Real estate can pass by survivorship to a joint tenant with survivorship rights, or to a surviving spouse under a “tenancy by the entirety” (a form of joint ownership applicable only to husbands and wives).
Irrevocable Trusts may be used as estate planning tools, often for the distribution of assets for the benefit of family members who are minors or developmentally-disabled beneficiaries, and sometimes to prevent wasteful spending by a spendthrift child, or to protect assets for a family member who is in a shaky marriage or who is in a high-risk job or profession. Also, certain types of trusts can provide for management of assets and the disposition of assets to protect family wealth for several generations and are typically called generation-skipping trusts (GST) or “Dynasty” Trusts.
This article cross-references you to other related topics, such as the following:
Who gets your assets if you die without a will? This is not as simple as one might think. North Carolina has laws which deal with the disposition of the estates of decedents who die without wills, called the North Carolina Intestate Succession Act, some provisions of which might surprise you and likely would not be what you would want. Also, please be aware that some assets pass by beneficiary designation or by survivorship to individuals and do not pass under the Intestate Succession Act.
Do you need a Durable Power of Attorney, a legal document which authorizes someone to act for you and to sign legal papers on your behalf if you are incapacitated?
Do you need a Health Care Power of Attorney and Advance Directive,to authorize someone to make health care decisions for you, which may include decisions whether or not to resort to extraordinary means to prolong your life if you are terminally and incurably ill, and to allow you to die a natural death in those circumstances?
Should you have a Revocable Living Trust to avoid the need for court probate at your death, i.e. court supervision, to insure that any assets belonging to you at the time of your death are used to pay your debts, funeral and administration expenses, etc., or can you rely on family members or other trusted individuals to administer your assets without court supervision? A revocable trust is not a matter of public record and affords your loved ones with some privacy concerning the assets which you own on the date of death and to whom those assets have been left.
Would it be appropriate to create Irrevocable Trusts for the benefit of others, either during your lifetime or after your death?
If you are a business owner or partner in a business or LLC, should you consider having a Business Succession Plan for the transfer of your business interest upon your retirement, death or disability?
Would your family benefit from tax planning? With the federal estate tax exemption equivalent at $11 million and increasing each year, the need for estate tax planning is not very important to many of us. But there are other tax issues, such as income tax considerations, which could benefit a family of moderate wealth, such as step-up in the cost basis of assets upon death.
This article cannot include all the estate planning possibilities and alternatives, but it is intended to give an overview of the issues involved.
A Power of Attorney is a legal document in which a person (the “Principal”) gives someone else (the “Agent”) the power to act on behalf of the Principal as set forth in the Power of Attorney, perhaps doing things such as writing and signing checks, or even signing deeds or tax returns. Those documents can also include the authority to do many other things, and not just basic functions.
If the Principal becomes incapacitated, the Agent’s authority under an ordinary power of attorney is revoked as a matter of law, but if the Power of Attorney is “Durable,” i.e. it expresses the Principal’s intent that it shall remain in effect if the Principal becomes incapacitated, it will not be revoked if the Principal becomes incompetent.
Until January 1, 2018, North Carolina law required a Durable Power of Attorney to be recorded in the office of the Register of Deeds, but that is no longer a legal requirement for documents executed after that date, except in the case of real estate transactions, in which case powers of attorney must be recorded.
Depending on the language in the document, Durable Powers of Attorney can be effective immediately, even if the Principal is capable of acting for himself or herself, or they can be “springing,” i.e. the Power of Attorney becomes active only upon the occurrence of a future event, such as when the Principal becomes legally incompetent.
The North Carolina General Statutes provide a statutory Short-Form Power of Attorney which may be used, instead of a form listing detailed descriptions of each specific power. If you have an old statutory Short-Form Power of Attorney executed before January 1, 2018, it must be recorded at the Register of Deeds office to be actively used. After January 1, 2018, you should not sign a durable power of attorney which uses the old statutory short-form language, because the laws have been changed.
Both the old and the new Statutory Short-Form Powers of Attorney are limited in the scope of authority granted to the Agent to act on behalf of the Principal and we recommend that you have a longer, more detailed document which grants specific authority to perform certain types of transactions on your behalf, that are not specifically covered in the short-form documents. A document which says something like “I authorize my Agent to do anything which I could do if I were present and acting for myself” does not grant the broad authority for which it seems to be intended, because certain powers must be explicitly specified, in order to be effective. The authority of the Agent to act on behalf of the Principal should be clear and unambiguous.
Consequently, we recommend that you not rely on the statutory Short-Form Power of Attorney, on the mistaken assumption that the document will be comprehensive and will cover all of your needs. To the contrary, we recommend that you consult with an attorney and have a power of attorney drafted which meets all your specific needs.
Health Care Power of Attorney and Advance Directives:
North Carolina also authorizes Health Care Powers of Attorney to be executed, authorizing someone to make medical decisions for you, if you are unable to make or communicate your own medical decisions.
We recommend that everyone have a Health Care Power of Attorney, which frequently designates a primary agent and also back-up agents, in case the primary agent cannot be reached or cannot make a decision for you.
The official form of Health Care Power of Attorney as set out in the North Carolina General Statutes is very thorough and comprehensive, and it contains some blank spaces, in which you may add to, limit or explain your Health Care Agent’s powers in further detail if you wish to do so. That is, the official form can be modified to express your personal wishes, such as religious beliefs, whether or not you want to be an organ donor, to express your funeral and burial wishes, or your desire to be cremated, if applicable.
A Health Care Power of Attorney must be signed in the presence of two witnesses and must be notarized. The witnesses may not be your natural heirs (such as your spouse or children) or people who are beneficiaries under your Will, or employees of your doctor or a hospital or other health facility, such as a retirement or a nursing home, where you are a resident.
Another document which you may want to have is an Advance Directive or “Living Will,” which expresses your desire not to have the dying process prolonged if you are, in the opinion of your doctor, terminally ill and likely to die soon, or if you have completely lost your mental capacity, or are unconscious and unlikely to regain consciousness.
A Living Will can allow your doctor to make a decision not to put you on life support without input from your family, but if you want family or friends to be included in that decision, you can also require the doctor to get permission from your Health Care Agent.
A Living Will does not give anyone permission to cause your death sooner than if you died of natural causes, even if you are very ill and in pain. That is against the law. A living will simply authorizes your health care providers not to put you on life support simply to slow down the dying process. If you are in pain, your health care providers are allowed to give pain killers, but nothing to speed up your death.
Having a medical provider to assist in causing the death of a patient is known as “Euthanasia” or physician-assisted suicide. Euthanasia or physician-assisted suicide is currently allowed in the states of Washington and Oregon, but not in North Carolina or in any other states.
Currently not even Washington and Oregon will honor an advance directive which gives a person the legal authority to make a decision for someone else, to initiate physician-assisted suicide. Outside the United States, Euthanasia is permitted in the Netherlands. A patient, even in Washington, Oregon or the Netherlands, must make his/her decision to authorize Euthanasia at the time it is to be performed, and no advance directive would be valid to give an agent the authority to make that decision for the patient, if the patient was not competent and capable of communicating his/her decision at that time.
To move on to another legal document, please be aware that the HIPAA laws are intended to protect the health care privacy of patients from people who are not authorized by the patient to have that information. Usually when a competent patient is admitted to a medical facility, he or she can give permission for the hospital to share his or her medical information with specific individuals. However, in case you are not able to give permission at the time of your admission, it is a good idea for you to have signed an Authorization to Share Confidential Health Information ahead of time, which can be used if necessary, when you are later admitted to a hospital or other health care facility.
It is suggested that you get an attorney to assist you in drafting Durable Powers of Attorney, Health Care Powers of Attorney, Advanced Directive (Living Will), and HIPAA Authorization to Release Confidential Health Care Information.