Wills, Trusts and Estates

 

We don’t like to think about it, but we do need to plan for it

              Nobody enjoys talking about it or making notes about it

                             Especially while we are young, we think it will never happen.

 

What is itIt is the moment when our life on this earth comes to an end.  Our death.  While life is full of variables and uncertainties, good moments and not so good moments, joys and sorrows, stresses and delights, we know that the day will come when each of us will no longer be here on this earth. 

Your family will go through emotional grief and sorrow ... but you can help them out a great deal by preventing complications with property and money.  There are several ways to plan for your family or friends to receive your property and assets with minimal administrative burden.

One way is by means of a Last Will and Testament.  The law of North Carolina has a plan already picked out for you if you don’t choose your own.  For some people, the state’s plan is not bad.  For others, it is a horrible nightmare for those you love the most. 

Another way you can make a plan to distribute your assets is by means of a Revocable Living Trust.  Some people shy away from a trust because it is something they are not familiar with.  It is not for everyone, but it can be a very good estate planning device for many people.  It is especially helpful for people who own real estate outside of North Carolina.  With changes in federal and state law that took effect on January 1, 2018, most people would not use a Revocable Living Trust to save on taxes, since there will be no estate or inheritance tax for any person’s estate unless the deceased person owned assets worth over $11.2 Million.  There still are some very good reasons, however, for using a Revocable Living Trust, not the least of which is that an RLT does not require probate ... so your assets and their values remain private. 

North Carolina has 2 kinds of Power of Attorney: (1) Durable Power of Attorney, and (2) Health Care Power of Attorney.  Both are extremely valuable if some sort of emergency or crisis happens, such as a bad car accident or a stroke or heart attack.  Both types of Power of Attorney are important, as each one is designed for very different purposes. 

A Living Will is another very important document.  For many people, it is one of the most meaningful gifts you can give to your family ... as it takes away the guilt they otherwise would feel if they had to make the decision to not start (or to terminate if it was started) artificial life support if you are brain dead.  The Living Will does not apply in North Carolina if a person is in a coma ... only if the person is brain dead. 

There are several connected documents that could be very helpful for you as you think about this topic, especially the Will Planner

Included in this material are general summaries of several techniques, documents and estate planning strategies, as follows:

* Special Needs Trusts (for persons between age 1 and age 65 who are disabled.  This kind of Trust can own property and receive inheritances for the disabled person without destroying their eligibility to receive Medicaid and other types of benefits.)

* Last Will and Testament (for anyone 18 years of age and older.  Parents of minor children should have a Will that includes a plan for managing the inheritance for their children until the children are old enough to handle inherited assets in a responsible manner.)

* Revocable Living Trust (for anyone 18 years of age and older.  This kind of trust can do many things that a traditional Will can do, along with the benefit of privacy because it does not have to be probated.  This kind of trust does not protect the owner from liability or from creditors, but there are many situations when it could be very helpful to your family.)

* Enhanced Life Estate Deed (nickname: Lady Bird Deeds).  This could spare your residence and other property if you require long-term care in a skilled nursing facility (nursing home) and could accelerate your eligibility for Medicaid to pay for such long-term care.  There is no waiting period of up to 5 years with Lady Bird Deeds.  The protection is immediate, the land avoids probate, and there is no tax on the transaction.    

* Durable Power of Attorney (for anyone 18 years of age and older.  You authorize who can sign your name or make decisions to assist you without giving up your personal rights.  If you have a stroke or suffer severe long-term injuries in a car wreck, this could be more important than a Will.)

* Health Care Power of Attorney (for anyone 18 years of age and older.  You designate who can give instructions to and get information from doctors, nurses and other healthcare providers regarding your health situation.  Neither a spouse nor children have the legal right to give instructions or get information regarding your health situation without this document.)

Everyone’s situation and circumstances are different.  In general, however, an issue that concerns a lot of people is what will happen to their home and property if they require long-term care in a nursing home (skilled nursing facility).  There are more options available to persons who feel comfortable that they will not have a health problem within 5 years that will require such long-term care. 

For those who do NOT feel comfortable that their health condition will remain good for 5 years, there is a way to protect their home and property from a Medicaid lien.  This way is to use an enhanced life estate deed system, which has the nickname of Lady Bird Deeds.  They are not for everyone, but the use of Lady Bird Deeds and the use of Medicaid-authorized techniques could save a family many tens of thousands of dollars.  Lady Bird Deeds are expensive, but the total cost is less than the cost of one month in a nursing home.  There is no waiting period ... the protection is immediate. 


 

Suggestions for Where to Keep Legal Documents

1.  Last Will and Testament:

Keep the original in the place where you keep your important documents.  It is OK to keep the original in a safety deposit box.  Use careful judgment in deciding whether to give a copy to adult children, since you have the legal right to modify your Will whenever you feel it is appropriate to do so.   If adult children know about versions different from your final Will, it could lead

Brief Description of Three Important Documents

In addition to a properly prepared Last Will and Testament, there are 3 other documents that often are extremely important to a thorough estate plan.   I recommend strongly that each and every client sign a Durable Power of Attorney and a Health Care Power of Attorney, which are explained briefly below.  The choice whether to have a “Living Will” is strictly personal to each client.  I urge you to think carefully about all three.  These 3 documents are every bit as important as a Will!

WHICH IS BETTER: A Will or a Trust?

A revocable living trust (sometimes called by the more formal title of an inter-vivos trust) is a document that is sometimes used as a substitute for a detailed Last Will and Testament.   If prepared properly, if your personal circumstances make it sensible, and if it is customized to your own situation by a skilled estate-planning attorney, it can be extremely helpful.  A living trust is not worthwhile for everyone, however!  Trusts are private documents, as opposed to Wills that become public when filed for pr

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