Claimed Lawyer ProfileQ&A
- Estate Planning
- University of North Carolina School of Law
- North Carolina State Bar # 47608
33 Questions Answered
- Q. can a PR of an estate make decisions with out consulting the other siblings?...ie..rent the house out to own with asking
- A: Yes. The personal representative is entitled to make all decisions relating to the estate on his or her own, without consulting the heirs. However, the PR is under a fiduciary duty to take care of the estate and make prudent decisions about it. If you feel that the PR has acted in a way that violates this duty and you want to challenge his decision, you should speak with a local attorney who handles estate proceedings/litigation.
- Q. My mom died. She has a will. My son is 17. His inheritance is under 10k. When can he obtain the funds?
- A: Did your mother’s will either instruct or authorize her Executor to transfer your son’s inheritance to a custodian? If so, this is a transfer under NCGS 33A-5. For these UTMA accounts, the default is that the money must be transferred to the minor when he reaches 21. However, if the will expressly stated another age (either 18, 19, or 20), you will need to transfer the funds to his name when he reaches that age instead. If your mother’s will did not mention a custodianship at all, then this was a transfer under NCGS 33A-6. This statute allows the Executor to transfer a gift to a custodian even without an express provision authorizing that in the will. If this applies, you need to transfer the funds into your son’s name when he reaches 18.
- Q. My mother in law has dementia.my husband has her poa can she choose to move herself from the nursing home to another 1?
- A: Making a Power of Attorney gives an Agent the ability to take certain actions, in addition to the Principal (a power of attorney does not affect an individual's ability to make his or her own decisions). However, it sounds like your mother in law may not be capable of making her own decisions anymore because of her dementia. If her dementia is so severe that she is now incompetent and is not making good decisions for herself, someone may need to obtain a guardianship over her. I would recommend that your family tries every other avenue before pursuing a guardianship, if possible. A guardianship is expensive, time-consuming, and embarrassing/disempowering for the ward. If you can work with your mother-in-law to help her come to better decisions in an informal way, that would be preferable for everyone than going through the hassle of getting a guardianship over her.
- Q. Does Durable Power of Attorney end at death in regards to organ designation in South Carolina?
- A: In North Carolina, an agent appointed under a Health Care Power of Attorney has the authority to deal with certain after-death decisions such as organ donation. Typically, an agent appointed under a Durable Power of Attorney is not given such authority (his or her authority ends at the death of the principal). This may be different in South Carolina, and in any case it depends on the exact language of the power of attorney in question. You may want to consult a South Carolina attorney about this.
- Q. My dad passed away in Oct 2014and I am his only son and he has a wife,what are my rights,no will
- A: When a North Carolina resident dies without a will, they die “intestate.” When this happens, NC law decides how the person’s property is distributed. Even if your father said he intended for you and your daughters to have certain items or property, it’s not relevant if he didn’t write that down in a will. Under intestacy, your stepmother gets 50% of your father’s solely owned real property. She is also entitled to the first $60,000 of personal property, and 50% of any personal property above and beyond that. A surviving spouse is also allowed to claim an additional “year’s allowance” of up to $30,000. This can be taken out of the personal property of the decedent, such as cars, bank accounts, furniture, memorabilia, etc. Once your stepmother claims what she is entitled to, you should receive everything else in his estate. Whether you have any interest in your father’s house depends on how it was titled. If he owned it as “tenants by the entireties” or “joint tenants with rights of survivorship” with his wife, she became the sole owner of the house at his death and was entitled to sell it and keep the proceeds. If he owned it in some other form, you may have a claim on a portion of the funds from the sale. You may be able to claim that your father’s spouse abandoned him and is therefore not entitled to receive her share under the intestate laws. If you could successfully make this claim, you, as the only son, would receive all of your father’s estate. However, if they lived apart by mutual consent or for some other reason, you probably can’t prove abandonment. It sounds like you need a local probate attorney to help you determine what exactly you are entitled to, and to help you make your claim.
- Q. My father has a home paperwork. Should we list it as a Will. or put it in trust upon his death
- A: First of all, you are talking about your father's estate plan. That means that you must abide by your father's documents/decisions. You can’t make those decisions for him. If he has made a will that divides up his property a certain way and he wants to stick with that, you and your brother will have to do what he wants. He could change his estate plan at any time, of course, if he is still able to understand what an estate plan is and to make decisions about how he wants his property distributed. Trusts are not inherently better than wills. Wills are cheaper and usually much simpler to create. They distribute the property directly to the people named in the will when the decedent passes away. You have to go through probate to distribute the property via a will, but probate in NC is not too complicated or expensive. Trusts can be useful in certain circumstances, but they are more expensive and often unnecessary unless you have a particular reason that you need a trust rather than a will. They avoid probate, which can save some fees and time. They are often used if the property will go to children or to disabled individuals. And they can be helpful for more complicated distribution plans (i.e. usually not just “50% to my daughter, 50% to my son”). Whether a trust or a will is right for your father depends on the family circumstances and on what your father wants to achieve through his estate plan. If he is considering changing his estate plan, he really needs to talk to an estate planning attorney in his area. Many estate planners offer free consultations.
- Q. Can I convey sole ownership of a home to my son at no value in NC, and what is involved?
- A: It is always a good idea to have a real estate attorney prepare deeds to transfer land. You will obviously have to pay the attorney to do this, but it is well worth the security of knowing it was done correctly. Once your attorney prepares the deed, it will have to be filed at the Register of Deeds in the county where the property is located (which requires you to pay a small fee). You can convey your home to your son without worrying about sales tax. However, giving your house to your son for no consideration/value is a gift. This means that you should file a gift tax return with the federal government after you transfer the house. Filing a gift tax return does NOT mean that you automatically have to pay gift tax. Each person has a $5.43 million exemption that they can use either during life to make gifts to people, or at death by transferring assets through their estate. Until you make gifts (either during life or at death) that amount to $5.43 million, you do not have to pay any estate or gift tax. So, the value of your house would be deducted from your $5.43 million exemption. However, unless you plan to make significant lifetime gifts or expect to leave an estate worth more than $5 million, this should not cause you to incur any actual taxes. It will just subtract from your significant exemption. Also, you should be careful if you are attempting to convey your home for a particular reason. Sometimes, people give away assets in an attempt to qualify for need-based programs such as Medicaid or for other purposes. This can result in issues such as disqualification from governmental programs. If you are hoping to achieve a particular goal by conveying your house to your son, you should talk to an attorney to make sure it won’t cause any unintended consequences.
- Q. My husband died a few weeks ago leaving me 50,000 debt on 2 credit cards. Am I liable in NC?
- A: I am sorry to hear about your husband's passing. Although your husband’s estate will be responsible for paying his credit card bills and his other debts, you may be able to get most of his assets out of his estate before the creditors receive anything. First, did your husband name you or your children as beneficiaries on his life insurance policy? If so, you can receive all of that money free of his creditors. North Carolina protects life insurance where the decedent named his spouse and/or children as beneficiaries, and allows you to take that free of any creditors he may have had. Secondly, did you own your house as “tenants by the entireties”? (You can tell that from the language of the deed: if the deed addressed you as a married couple, NC presumes that you took title as tenants by the entireties.) If you did, you now own your house free of the claims of any of your husband’s individual creditors. Your house will still be subject to the mortgage that you both signed, and to any other joint creditors of both yourself and your husband. Finally, you can claim some more of your husband’s assets through the “year’s allowance.” North Carolina allows a surviving spouse to claim up to $30,000 of her husband’s assets free of creditors. It also allows dependent children to claim up to $5,000 each, also free of creditors. This can be useful to obtain cars, personal property, bank accounts, etc. (You can petition the court to grant you more than the statutory amount, if your husband’s estate ends up exceeding these limits. However, you cannot get an additional allowance if the total would be more than one-half of your husband’s average income over the last three years.) So, hopefully you were the beneficiary on the life insurance, and you owned your house as tenants by the entireties. After that, you can claim your family allowances to get some more assets out of the estate free of creditors. That should leave very little for creditors. You can either open an estate at that point and pay out what is left to the creditors, or you can leave it and see whether a creditor comes forward to open the estate and claim whatever is left. If an estate is opened, your husband’s remaining assets will be divvied up among the creditors and their claims will be wiped out. You will not be held responsible for debts that were solely your husband’s. Unfortunately, you may still be held liable for your husband’s medical bills. In North Carolina, the Doctrine of Necessaries holds one spouse responsible for the necessary living expenses of the other spouse. This includes medical bills, among other things. So, it is possible that the medical providers could come after you for payment on any outstanding medical debts under this doctrine. Hopefully your husband had medical insurance that would cover most of these costs.
- Q. Is nonresident of NC and named "executor without bond" in NC aunt's will required to post executor bond?
- A: Where the will waives the bond requirement, the named executor can serve without posting bond. This applies to both residents and non-residents.
Contact & Map