What is a Will?
A Will provides for the disposition of your property upon your death. A properly drafted Will in conjunction with an estate plan can help minimize and sometimes avoid estate taxes while providing for the transfer of your assets to, and the maintenance and support of, your beneficiaries upon your death.
In North Carolina, if you do not have a Will at your death your property is distributed according to a formula established by North Carolina law. This means that you will not have any control over the disposition of your property. North Carolina’s formula can cause a disposition of your property that is contrary to your intentions and wishes. To demonstrate the formula, if you died without a Will and you were survived by your spouse and only one child, or by any lineal descendents of the deceased child, the surviving spouse receives one-half of the real property and the first $30,000 in personal property. The balance of the real and personal property is then divided equally between the surviving spouse and the child, or if the child is deceased, the child’s lineal descendants. This outcome is contrary to most family’s desire that all property go to the surviving spouse upon the death of the first spouse and not to the minor child. Additionally, North Carolina’s formula does not distinguish between a healthy versus non-healthy child, a minor versus adult child, or a financially secure child versus a child who is in need of assistance. The disposition formula and resulting outcome changes if you have more than one child.
If you have a minor child, you may designate in your Will the person who will provide the care and custody of your child upon the deaths of the child’s natural guardians.
In North Carolina, any person of sound mind who is eighteen years of age or older may make a Will.
Any person who owns either real or personal property, or any person who has a minor child or children should make a Will.
A Codicil is an amendment to a Will and normally undertaken when you have only a few minor changes to your Will. When preparing a Codicil, it must be signed and witnessed in the precisely the same manner as a Will.
An executor is an individual, bank or trust company named in your Will that takes control of your assets at your death, pays your debts and administers your estate.
Yes, you can name co-executors in your Will empowering both to cary out the administration of your estate upon your death.
Yes, even if you have created a living trust and transferred your assets to the trust, you still need a Will to catch any property that you may own at your death that have not been transferred to the trust. Your may designate in your Will that all property in your estate pours over into your living trust. Additionally, you should consult with your tax advisor prior to naming a revocable trust as the beneficary of a qualfied or non-qualified retirement account.
For assistance with wills, contact our firm for an appointment or Email David.