Collins Law Firm FAQs

Dying without a will means you have died "intestate." The intestacy laws of the state where you reside will determine how to distribute your property upon death. Any bank accounts, securities, real estate, and other assets you own at the time of death will be available for distribution. It can drastically complicate things for your surviving family members, so it's always best to create end-of-life arrangements not to force anyone to guess or abide by the state's decisions regarding your assets. Having a will or a similar tool makes your death much easier on loved ones.

With jointly owned properties, if one of the owners passes away, the other receives all the property. In N.C., this arrangement, however, is not fuaranteed to avoid the probate process. Speaking to an estate planning expert is essential to determine the best placement in your situation.

A revocable trust, sometimes called an intervivos trust, is a legal entity created to hold ownership of someone's assets. The person forming the trust is the Grantor or Settlor and, in most cases, also plays the role of trustee, which means they control and manage the assets held in the trust. Some Grantors choose to have a financial institution or attorney serve as trustee, although this is usually rare.

A revocable trust applies and provides for managing the trust assets during the Grantor's lifetime. It provides for the management/distribution of the trust assets after the Grantor's death.

It is often used in conjunction with a Last Will and Testament, sometimes called a pour-over will.

A trust provides legally binding instructions for handling one's estate in the event of death. It also ensures that parents' wishes for their children are honored, and it protects the interests of those children. 

A trust will contain provisions for the prudent management of the assets you leave for the benefit of your minor children and up until the time each child reaches majority age, and preferably beyond to age 25.

The most straightforward answer to this question is: "in North Carolina, it depends upon the particular will." Usually, the will contains a power of sale, which allows the Executor to sell real property under specified circumstances. Sometimes the will is silent.

In North Carolina, you can begin probate immediately. However, taking immediate action can be difficult because people often deal with grief when they lose a loved one. North Carolina law does not require that probate be filed immediately. Because you may lose some legal rights if not asserted within specified periods, you should consult with your attorney regarding your legal rights as soon as possible after the date of death.

A general, durable power of attorney is the legal written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, possibly against the wishes of the other. Granting a general, durable power of attorney to someone helps establish security for your well-being if you cannot make decisions for yourself. It would be best if you chose to assign a general, durable power of attorney only to someone you trust. Usually, this is a spouse, adult child, parent, or another close family member.

Power of attorney and Guardianship have similar functions, but they do differ. Power of attorney is assigned of your own free will, whereas with a guardianship, the court is heavily involved and appoints who it wishes to control your assets. Courts have little to nothing to do with the power of attorney unless it gets called into question. On the other hand, Guardianship involves the Court every step of the way. It begins when someone petitions the Court requesting assistance. If a person is deemed unable to care for him or herself, a guardian is appointed and must provide detailed accountings at least annually which will be audited by the court.

A health care power of attorney is a legal document where you name another person to make health care decisions in your favor when you cannot on your own. Those people are called healthcare agents.

The only requirement for health care agents is to be of 18 years of age and not your paid health care provider.

Choosing your healthcare agent should e done carefully and cautiously. They will have the authority to decide on your health care. 

Your healthcare agent should be someone who knows you well, can represent you when needed, and will honor your wishes. You should have an excellent communication system with your healthcare agent. That way, they can know how to care for you per your goals for your health.

You can limit the power that your healthcare agent has. If you do not, then they can make all health care decisions for you, including:

• Starting life-prolonging measures

• Mental health treatment decisions

• Picking out your doctors and facilities

• Sharing and viewing your medical information

• Autopsies and disposition of your body after death

An Advance Directive in North Carolina allows you to state your desire not to receive life-prolonging measures in any or all of the following situations:

1. You have an incurable condition that will result in your death within a short period of time.

2. You are unconscious, and your doctors are confident you cannot regain consciousness.

3. You have advanced dementia or other substantial and irreversible loss of mental function.

Advance Directives are essential for all adults because unexpected end-of-life situations can happen anytime. By planning, you ensure that you receive the medical care you desire, avoid unnecessary suffering, and prevent loved ones from having to make difficult decisions