Where There’s A Will There’s A Way (And A Way Not) To Handle Your North Carolina Estate Planning

Movies and television often make wills seem exceedingly simple. A few lines, maybe handwritten, and bam, your last will and testament is all done. The truth, however, is that a properly drafted and thought-through should be given more of your time and consideration; after all, the impact could be extensive on your family, friends, and legacy. This article focuses on wills as an estate planning tool in North Carolina and covers important questions such as:

• What can be addressed in a will (and what cannot)?
• The responsibilities and role of the will’s executor and how to choose one.
• When to make changes and how to make your will available to those who will need it?

What Is A Will?

A will, or last will and testament, is a document that describes how you would like your assets and property to be divided and passed on after you die. Wills are the foundation of the estate planning process and provide the essential guidance your family will need to establish your legacy after you die.

The will itself needs to be witnessed and signed to be legally binding, and new wills can be created later in life as your circumstances change.

What Can All Be Addressed In A Will?

At its heart, the will addresses the question of property division. It applies to all your personal property, be it tangible physical property such as real estate or intangible property such as financial accounts or business bonds. It will also indicate who you wish to receive this property or portions of it; these are called your beneficiaries.

In addition to selecting to whom your properties and assets will go, it might include your wishes for your remains, such as how or where you would like to be buried.

Many wills will also have gifts to charitable organizations that you feel could benefit from your property. There are, however, certain things a will cannot do, such as provide provisions for child custody arrangements.

Are Your Wishes For Your Orphaned Child In Your Will Legally Binding?

Some parents may, understandably, wish to include provisions in their will for their minor children, such as who will become their new legal guardian. Unfortunately, in North Carolina, custody provisions are not binding; you simply do not have that authority.

Obviously, you can include your preference, which can be used as evidence in favor of a specific guardian. In the end, however, the will is not an authoritative voice, and the decision will be up to the child custody court.

According to North Carolina Law, it is the court that can determine what arrangement will be in the best interest of the child. Sometimes, it will not go all the way to court, however, as Child Protective Services may get involved.

They could look at your will and see that you wanted the child’s uncle as guardian. Unless someone tries to challenge that, then the state will designate them as a guardian. But the state has to grant that authority, ultimately.

One role you do have to name in your will, however, is the executor.

What Are The Responsibilities And Duties Of An Executor In Administering Your Will?

The executor is the person chosen to fulfill your wishes in the will. They are responsible for implementing your wishes by transferring the necessary properties, sometimes even selling them, and then passing on the money to the intended beneficiaries.

This role comes with considerable power and could be ripe for abuse, so you should be careful who you choose.

Why Is It Important To Name An Executor In Your Will?

If you do not name an executor in your will, the probate court will have to name one for you. This may very well not be someone you would have chosen or even approved of. Sometimes, the court will simply pick a local attorney and bill their services to your estate, which would be an extra expense.

Remember, you want a responsible, trusted individual who will honor your wishes to be your executor. You should pick someone who will be a good fiduciary and put the estate and what happens with the estate above their personal interests.

While there are mechanisms to call out or challenge someone who might be abusing their power as executor, nobody wants to have to go through that lengthy, messy, and expensive process. Far better to name someone you trust to carry out the work with professionalism and integrity.

If things seem too complicated for any executor to handle, or if you cannot pick someone you trust, then a different estate planning tool, such as a trust, might be a better option.

What Are The Advantages And Limitations Of Using A Will Compared To Other Estate Planning Tools Like Trusts?

If your estate is quite simple and you know what you want, then a will makes for a much simpler process. It is just one document, and when you pass, there will be fewer steps involved for your family. That can certainly be an advantage.

On the other hand, the disadvantage is that a will considerably limits your creativity. If you have bold plans, very specific plans, or complicated plans for your assets after you pass, you may want to outline them further than what a will can allow.

Additionally, if your estate is of a high net value, you may have better returns if you put it into a trust. A trust can help save you money by transferring assets and property out of your name before you die, bypassing the probate and its estate taxes. In addition, if your estate has wealth-earning potential, a trust might allow for better and more lucrative management.

At the end of the day, you will always be able to work together with your attorney to develop a personalized estate plan that is best suited to your needs and estate.

Do You Need Both A Will And A Trust?

Given the advantages and disadvantages of wills and trusts, it might be natural to assume the ideal solution is to have both. This is not always true. Everyone needs to have a will, but not everyone will need a trust as well.

If you do not have a will, the state will decide what happens to anything you own not already transferred out of your name (such as in a trust). Therefore, while a trust can offer advantages over a will, you should never neglect making a will, even if you have a trust.

What Steps Should You Take To Ensure Your Will Is Accessible To Your Loved Ones And Executor When Needed?

A will is useless if no one knows it exists or where to find it after you die. It is important to take steps both to keep it safe and to inform others of its location.

Keeping it in a lockbox at a bank is certainly a very safe place. But only if you let someone, your attorney perhaps and maybe your trusted family members, know there is a will in the lockbox.

Your attorney will almost always have a copy of your fully executed will in their office, but there is no guarantee that office will still exist when you pass. It is better to keep a letter somewhere obvious, clearly indicating where your will is, or simply tell a trusted family member where it is or give them a copy.

You do not want to make it too inaccessible, however, as sometimes you may need to make changes or rewrite it entirely.

Is It Better To Make Changes To An Existing Will Or To Create A New Will Altogether?

Whenever your life changes or new assets or properties come into play, it is best to make sure your will and other estate planning measures reflect them.

If it is just a minor change that would impact only one part of the will, this can be done through what is called a codicil, which just changes that one part of the will. Such as leaving a nephew out of your will because he crashed your car.

If, on the other hand, an overhaul is required, and there are a lot of changes, it can become confusing to try and piece ideas together with codicils. This is even more true if the overall concept or idea you have about your legacy has changed. In these cases, it is often best to just start over.

For example, if you have gotten a divorce, remarried, and had a child with your new partner, you would definitely want a new will. You are removing one heir, adding two more, and probably changing quite a few other details. That requires more than just a few modifications.

Both processes are quite straightforward, however. Neither is more difficult, just perhaps a bit more time-consuming. If you are unsure whether a specific life or asset change merits a codicil or a re-write, your estate planning attorney can always help.

If you need help drafting or changing your North Carolina Will Or Estate Plan, you can reach out to us for a free initial consultation. Get the information and guidance you deserve by calling (252) 371-0127 today.