While many people put a lot of thought into financial planning for their retirement, they often neglect one of the most important things when considering the future, estate planning.
Nobody wants to think about topics like "What happens to my assets and my loved ones when I die?" So it comes as no big surprise to learn that almost half of Americans don't have a will, and even less have an estate plan.
So what exactly is an estate plan? How does it differ from a will?
A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. An estate plan goes much further than a will. Not only does it deal with the distribution of assets, but it may help you and your heirs pay substantially less in taxes, fees, and court costs during an already difficult time.
Anyone with assets or a family should have a will. The decision to have an estate plan is a personal one and depends on more than the potential size of an estate. Consider the following questions:
Let's go through these considerations one by one.
An especially significant life event for a married couple is the birth or adoption of a child. How would the child be provided for if either or both parents were to pass away?
A will provides the opportunity to name a guardian to take care of a child, but naming a guardian is just the first step of many. In addition to a guardian, who will assume the responsibility for the care and custody of the minor child, a proper estate plan will allow you to form a trust, either with a specific trust document or through your will. This will also allow you to name a trustee who can manage any assets the minor child may inherit until that child reaches a certain age which you designate. A guardian and a trustee are often two different individuals.
As long as the owner of the estate has documented their wishes and named the beneficiaries ahead of time, some assets can be distributed by the banks or brokerage firms that hold them. This usually allows assets to pass directly to the beneficiary without going through probate and supersedes anything in the will. For assets that do not allow for the naming of beneficiaries (such as some bank accounts and real estate), the will is what designates who will receive such assets.
Another good reason to have an estate plan is to minimize the probate process and its unnecessary expenses. What is probate and what should be your major concerns?
Probate is a legal process that takes place after someone passes away and usually includes:
At times, probate may involve extensive paperwork and court appearances. There are also fees associated with certain probate assets which can usually be reduced or eliminated with proper planning. While it is nearly impossible to eliminate probate entirely, especially if you own real property, there are a number of options available to you to keep this process as inexpensive and easy as possible.
Here are just a couple of items to know about the probate process:
If you own a business, it's important how to plan for what will happen to it once you have passed away. If you wish to keep the business (that you've worked so hard to build) in the family, consider creating a structure that makes it easier to transfer the business' assets to other family members.
There are many options such as a family limited partnership or a family limited liability company. Your attorney can help you make the appropriate choice that best fits your specific needs.
Two of the most common circumstances that may affect estate planning decisions are blended families (a family that includes children from a previous marriage of the wife, husband, or both parents) and concerns about disabilities. There may also be many other needs that affect a particular situation, but let's concentrate on these two circumstances.
Blended families can easily make estate planning more complicated. For example, a parent may want to leave a different inheritance to biological children than to stepchildren, or the parent may want to protect his or her biological family's inheritance in the event a spouse remarries. With the help of an attorney, a solid estate plan can help prepare for these and other scenarios.
Regarding disabilities, there are specific trusts that can be set up for the benefit of a disabled beneficiary that are structured in a way that allows the beneficiary to continue to qualify for public assistance, such as Social Security Disability Insurance. Again, your attorney can help establish a trust that will meet your specific situation.
The United States Congress has made numerous changes to the Federal Inheritance and Estate Tax over the last few years, but the law has recently been clarified. There is now only a Federal Estate Tax on estates with asset values larger than 5.45 million dollars for anyone that passes away after January 1, 2016. Therefore, if you and your spouse have a combined estate approaching five million dollars in total value, you should definitely seek special assistance with your estate plan.
Be sure to do your homework and organize your thoughts and plans so that you can make the most of your time when meeting with an attorney that specializes in estate planning. Estate planning can quickly become complicated, but with the help of an expert, it can result in a situation that places your mind at ease when it comes to your family and their future.
Michael Burgner, Partner
Getting pulled over isn’t much fun, but you don’t have dig yourself into an even deeper hole by saying the wrong thing. If you’re guilty of speeding, it’s likely that you will be ticketed, but keeping these tips in mind can keep you from getting into any more trouble and racking up a bigger fine.
It probably doesn’t rank very high on most people’s list of favorite things, but getting pulled over is not the end of the world. It does happen occasionally though, so it’s important that you know how to handle the situation and keep yourself out of any more trouble. If you follow these five tips next time you’re pulled over, you should be able to make it out still in one piece.
If you do need legal assistance regarding a traffic stop or another legal matter, our experienced team of attorneys is available to help. Click here to view our Services page.
For children and teens, Halloween night might just be the best night of the year. It’s a chance to rebel a little, have some fun and eat an immense amount of candy at an age in which there aren’t extreme repercussions.
Adults often celebrate in a similar fashion. All Hallows’ Eve is a chance to shed the work suits and restrictive ties, visit with friends and drink crafted pumpkin brews. Ask any age, however, and you’ll find that the accumulative answer to “What’s the best part of Halloween?" is most definitely the chance to dress in a costume.
Everyone wants to have fun at the Halloween party, but make sure you make good choices starting with the outfit you choose. Here are the top three costumes to avoid this year, and why:
Additional Halloween Tips:
Ultimately, much of Halloween safety comes down to basic common sense. Even the most cunning, intelligent and street-wise individual may have a lapse in judgment. Sometimes situations are out of your hands. Knowing an attorney you can trust, and call should you need one, is your best bet in celebrating All Hallows' Eve with confidence.
By Brittany Love and Andrew Cornelius
It’s that time of the year again when friends, coworkers, and families gather together to celebrate the seasons. Whether it’s an office costume party, a Thanksgiving dinner at your parents’, or a night of Christmas caroling with your neighbors, the spirit of the season often involves food, fun, and alcohol. Eggnog anyone?
But what happens when one of your guests has too much fun, gets behind the wheel, and is the cause of an alcohol-related injury?
Did you know? In North Carolina, a private individual or corporation can be held financially responsible for damages caused by an impaired driver if that individual or an agent of the corporation served alcohol to a person, knew the person was intoxicated, or knew or should have known the intoxicated party was driving afterwards.
Unfortunately, it does happen—and this theory can be confusing without a legal background to interpret ALL the ins and outs. While it’s important to know what your role is in the situation, especially from a legal standpoint, it’s also important to remember not to panic!
This common law theory is a specific type of negligence known as “social host liability.” Under the theory, a party injured by an impaired driver is able to sue and recover damages from employers, family members, and friends who failed to use reasonable caution when serving alcohol. This theory can be applied regardless of the age of the impaired driver or the extent of the damages caused. It can be used by the passengers of the impaired driver or the actual owner of the vehicle driven by the impaired driver. The theory can even apply to someone that you did not invite to your gathering, but allowed to remain and consume alcohol. If you’re thinking ‘that could very well be one of my parties’; don’t worry, you’re not alone.
While not every situation involving an impaired driver involves social host liability, every host can put themselves at risk when serving alcohol to guests.
Let’s examine a situation you may encounter this holiday season. Karen works for XYZ Corporation as a supervisor of their Concord branch. Karen’s employees hit all of their sale goals well before the end of the month, and Karen decides to reward them with an after-hours celebration complete with food and alcohol (paid for by Acme). At 8:00 pm, Karen’s employee Henry and his partner, Sarah, arrive at the office for the festivities. Karen soon realizes that Henry is drinking heavily, so she confirms with Sarah that Sarah will be driving them home. Karen sees that Sarah is also drinking, but not at the same pace as Henry. Karen says goodbye to the couple around 11:00 pm. Although Karen can tell that Sarah is a bit “tipsy,” she thinks nothing of it because Henry is much worse. On the way home, Sarah is distracted by lights from a local business and fails to stop for a red light, clipping the back end of a driver’s truck (we’ll call this driver ‘Chris’) as he is cruising through the intersection. Chris sustains serious injuries in the accident and his vehicle is totaled.
Technically, under this theory of ‘social host liability’, while Chris can seek damages from Sarah for being the direct cause of the accident, Chris can also hold a strong case against Karen and Acme. Karen, as an agent of Acme and using alcohol purchased by Acme, continued to serve alcohol to Sarah when she knew or should have known that Sarah was intoxicated and knew that Sarah would be driving. Sarah’s driving may be the obvious cause of Chris’s injuries, but Karen and Acme’s negligence allowed Sarah to keep drinking and get behind the wheel after she was visibly impaired.
There is no cap for damages under the theory of social host liability, exposing hosts to unlimited liability when their guests are drinking at a corporate retreat, a charity fundraiser, or even a large wedding. Recoverable damages in a social liability case can include:
The theory of social host liability requires a host providing alcohol to use reasonable caution in serving and monitoring his or her guests. What does that mean? It means that, as a host, your best bet in protecting yourself is to be aware of your guests’ intoxication levels. Let’s be realistic though—it can be almost impossible to monitor every guest in a crowded and loud event. Offer Uber promo codes as part of your ‘Christmas bonus’ or make sure everyone attending the party has a designated driver so that your guests can enjoy the party without the stress of driving home. No matter how cautious you may be as a host, accidents can, and do, happen.
If you have additional questions or concerns as to whether your current situation falls into either of these categories, know that Hartsell & Williams, P.A. is committed to helping you know and understand the law, your rights and how to protect yourself. Tis the season for joy and fun, not worry and stress. Knowing an experienced and trustworthy firm is only a phone call away can help you enjoy, prepare for, and celebrate the holidays to their fullest extent.
Family members often struggle with what to do when a loved one passes away. Whether a death is sudden or expected because of old age or illness, the details can still be daunting. Below are five things we recommend to help you through this difficult time.
We often find that estates lose substantial value in a very short time period following death. This occurs because cash, personal property, and other assets are not secured and individuals make off with the property before family has a chance to know what is missing. This is often the result of a simple misunderstanding of what the decedent wanted to happen with their property. The only way that assets can be transferred from a deceased individual is through estate planning documents. A simple spoken word is generally not enough to transfer ownership to another person.
Before the Clerk’s Office will allow you to open an estate, they require that you provide them with a death certificate or at least a copy of an obituary. An online copy of the obituary is sufficient. You will eventually need to obtain death certificates for certain financial institutions, insurance companies, government agencies, and other organizations but that can be obtained later once they are available. Often, the funeral home will obtain death certificates for you. Five copies is generally sufficient - it is our experience that clients buy too many copies in most estates. We can always obtain more copies
Everyone is concerned about the cost of handling an estate and the concept of hiring a lawyer is often viewed as an added expense. That is generally not the case.
What we often find is that a full estate administration is not necessary. North Carolina law allows for different levels of estate administration based on the assets owned by the decedent and who else owns the assets with them. We can often limit or even eliminate the requirement of filing an estate at all. Once the probate process is initiated, however, we have no choice but to complete the entirety of the administration process.
Before you can give and receive information from institutions with which a deceased person was doing business, you may need to provide those companies with proof that you have a right to handle your loved one’s financial affairs.
Your attorney can help obtain these documents for you and help you navigate the required filings with the court. Your attorney can also assist you with fulfilling your fiduciary duties in handling an estate. If the decedent had a will, make sure you bring that to the initial meeting with your attorney. If you cannot find a will, that’s okay too. In that instance, the court can issue letters of administration to a surviving spouse or next of kin.
Generally, the biggest problem we find when a loved one passes away is the lack of knowledge about the assets owned by the deceased. It is often the case that loved ones don’t even know if their deceased family member had a will. While we suggest that loved ones provide their family with an inventory of their assets, accounts and property while they are alive, sometimes that just doesn’t happen.
Bring any documents you can find with you to the initial meeting with your attorney including bank statements, insurance statements, letters from local government entities, bills, tax returns (preferably from the previous 3 years), wills and trusts, and any other documents you think may be helpful. These will all assist your attorney in helping you plan how best to handle the estate.
Our clients are also often in a hurry to make sure the debts of their loved ones get paid quickly following death. Don’t. North Carolina requires you to give notice to potential creditors of your loved one via publication in a newspaper. For 90 days after this publication first appears, creditors can make claims against the estate. Generally, after that 90 day period, any claims received are barred. Wait until this time period ends before paying debts to insure the estate will be solvent. The only exception to this rule is paying bills which are necessary to preserve estate assets (insurance payments, electricity, water, etc.).
If you have questions about an estate, please feel free to contact our office via email or call 704.786.5161.