EP FAQs

Yes. If you don’t write your own Will, then the State of North Carolina provides one for you. As you might imagine, the State’s choices may not be the same ones that you would have made for yourself. Some examples:

Example One:

You never write a Will. You die leaving a spouse and small children. All of your property does NOT pass to your surviving spouse. Instead, the law divides it between your spouse and your children. Are your small children going to responsibly manage their shares of your estate at age eighteen?

Example Two:

You never write a Will. Your spouse and your parents survive you. All of your property does NOT pass to your surviving spouse. Instead, the law divides it between your spouse and your parents.

To learn more about North Carolina's intestacy law which dictates how your estate is distributed if you die without a Will, click HERE.

2. Do I really need to pay a lawyer to write my Will? I've seen software programs.

Yes. Each state has its own legal requirements for making a valid Will. Writing a software program that covers each of the fifty states’ requirements would be impossible. Most software programs shoot for satisfying the “most common” requirements for Wills. Not surprisingly, many of these programs fail to meet basic North Carolina requirements.

More importantly, no software program gives you the interaction with a knowledge-able professional that you need to develop an appropriate estate plan. An estate plan isn’t like an army sock (one size fits all). Your estate plan should be specially tailored to your individual needs.

Example One:

Russell and Edith are in their late sixties. Edith recently fell and was hospitalized. At the hospital, the doctor discovered that Edith had suffered a mild stroke. The doctor was also concerned about Edith’s memory and could not determine if the mild stroke had impaired her thought or if she might have early symptoms of Alzheimer’s disease. The doctor warned Edith that she could have more strokes in the future.

Russell buys a copy of “Compu-Lawyer” from the local superstore and makes Edith the sole beneficiary of his estate. If Edith predeceases him, then Russell’s Will leaves everything to his two children in equal shares. Edith’s new Will leaves everything to Russell. If Russell predeceases her, then Edith leaves everything to the two children in equal shares.

By leaving everything directly to Edith, Russell may have unwittingly left his entire estate to a nursing home if Edith suffers another stroke or develops Alzheimer’s disease. An experienced elder law attorney would have considered drafting a Will with Discretionary Trust provisions for the benefit of Edith. Using such a trust could protect Edith if Russell dies first, but still prevent losing the estate to a nursing home.

Example Two:

Joe buys a copy of “Compu-Lawyer” from the local superstore. Joe is 50, married and has two children. Joe and his wife jointly own a house worth $200,000. The couple has $7,500 in checking, $10,000 in savings, $50,000 in CDs and two cars worth $25,000. Joe has worked for his employer for 20 years and has about $85,000 in his 401(k). Joe’s wife has her own IRA with about $45,000 in it. Joe bought a life insurance policy with a death benefit of $350,000.

Joe is also listed as a co-owner of a checking account with his 70 year old mother, Gail, and his brother, Jim. Gail is living in an assisted living in Charlotte. Joe and Jim have agreed to use this account to help their mother if she becomes unable to manage her own assets in the future. The account currently has about $75,000 which Gail uses to pay for her assisted living. While Gail has always been nice to Joe’s wife, they aren’t terribly close.

Gail gave her former home in Florida to Joe several years ago when she moved to the assisted living facility.

Joe’s “Compu-Lawyer” Will calls for everything to pass to his wife if he dies.

Joe has unwittingly created a serious problem for his mother, Gail. The account that he owned with Gail and Jim will likely be frozen when Joe dies until his estate can be probated. Worse still, Joe’s wife will own some portion of the account unless Gail can demonstrate that she actually contributed all of the money in the account. In the meantime, Gail will have trouble paying her monthly bill at the assisted living facility.

Adding insult to injury, when Joe filled out the “Compu-Lawyer” Will, it told him that he only needed to have two witnesses sign the Will since he lived in North Carolina. Now, Joe’s wife is being told that the Will may not be valid to convey title to the Florida house to her, since Florida law requires three witnesses to sign the Will.

3. I have a Will. Do I need any other documents?

Yes. A Will is never adequate for estate planning purposes. A Will simply covers how your assets will be distributed after you die. Most people should be more concerned about how their affairs will be managed if they are alive but incapacitated and unable to make decisions for themselves. At a minimum, every estate plan should include the following documents:

Durable (Financial) Power of Attorney: Appoints an Agent to handle your business or financial matters if you become incapacitated.

Health Care Power of Attorney: Appoints an Agent to make health care decisions if you are incapacitated and unable to make your own health decisions.

Will: Distributes your property after your death.

4. Do I really need a Health Care Power of Attorney? I'm in great shape.

Yes. In 1983, 25-year-old Nancy Cruzan was pronounced dead by police at the scene of a car crash. Paramedics managed to resuscitate Nancy, but she never regained consciousness and she lapsed into a persistent vegetative state. Her nutrition and hydration were maintained by a gastrostomy (feeding) tube.

When Nancy's parents asked the hospital to remove her feeding tube, the hospital refused and the dispute moved to court. The Missouri Supreme Court ruled that there must be “clear and convincing” evidence of a patient’s prior wishes before tube feeding can be terminated. This decision focused national attention on the need for advance medical directives. Thus, the North Carolina legislature implemented statutes allowing citizens to make choices about their health care in the event that they become incapacitated. The Health Care Power of Attorney is one way in which North Carolina gives its citizens the chance to control medical decision making.

After three years of court battles and seven years in a persistent vegetative state, Nancy Cruzan was finally permitted to die.

You need to understand that you are leaving key medical decisions to the treating physician and the hospital or nursing home instead of your family if you choose not to execute a Health Care Power of Attorney. If you would prefer to reserve these important decisions for family, you must execute a Health Care Power of Attorney.

The ability to create medical directives in advance of incapacitating illness is so important that North Carolina law even permits minor children to have Health Care Powers of Attorney.

5. I have a Living Will. Do I really need a Health Care Power of Attorney?

Yes. A "Living Will" (technically called a "Declaration of Desire for a Natural Death" in North Carolina) will only authorize withholding life support if you suffer a persistent vegetative state or a terminal and incurable condition. In contrast, the Health Care Power of Attorney will also permit your agents to authorize withholding life support if you suffer from severe dementia or a permanent coma. Moreover, the Health Care Power of Attorney authorizes your agent to make decisions far beyond "end of life" matters, such as the choice of medical facility or provider.

6. Are my present documents sufficient?

It depends. We will gladly review your North Carolina documents as a courtesy for free and tell you if we think they are sufficient. The most common problem we see with documents from North Carolina is the lack of gifting powers in durable powers of attorney for disabled or elderly clients. Occasionally, we encounter older Wills that are not “self proving.” This means that your personal representative will have to try to locate the people that witnessed you signing your Will (no easy task if that Will was signed in 1970!). We also encounter many Wills that expose the estate to the risk of loss to a nursing home or that could create problems if one spouse has to go into a nursing home and apply for Medicaid health benefits. Generally, if your documents are more than five (5) years old, then you should have them reviewed to make sure that they still work the way that you want them to work.

If your documents were drafted in another state, then the primary issue is where you intend to live. If your primary residence will now be North Carolina, then you really ought to have new documents prepared here. If you own property located in other states, you must ensure that your plan will deal with the property in the other state.

7. Is estate planning expensive?

No. Estate planning is not nearly as expensive as failing to plan for your estate. Guardianship can cost 10% or more of your total assets. Litigation can easily cost thousands of dollars. In comparison, professional estate planning is a good bargain.

Example:

Lacy owned a small home worth $75,000 in western North Carolina. She was proud of her home and hoped to someday leave the home to her son, Ralph. Lacy was seventy years old when she first started forgetting things on a regular basis. Over time, Lacy became withdrawn and rarely left her home. Ralph lived far off in Raleigh, so he wasn't able to visit very often.

Lacy began making frequent purchases of jewelry and kitchen appliances that she saw on television. Too often, she would forget about the stove and burn up her pots and pans. Lacy sometimes tried working in her garden, but often became confused about where she was. One night, Lacy wandered outside and fell on her back steps. She was unresponsive when a neighbor saw her the next day and called paramedics.

Lacy's son, Ralph, contacted an attorney shortly after Lacy was transferred from the hospital to a nursing home. Ralph discovered that the nursing home costs over $5,000 per month and that Lacy's home would have to be sold within a few months to pay the cost for her care. Ralph felt he would have to lower the asking price for the house in order to sell the home quickly enough to stay out of debt.

Basic estate planning would have included preparing a Durable Power of Attorney for Lacy. Given Lacy's age and family situation, an experienced elder law attorney probably would have recommended that Lacy execute a document allowing her Agent to transfer the home to her son, Ralph, if she became incapacitated. A significant portion of Lacy's assets could have then been preserved instead of selling them to pay for a nursing home. Worse yet, if Lacy's condition were to improve in the future, she would recover only to find that she no longer owns a home for her to return to.

8. How much am I going to have to pay?

It depends. The exact price of your estate plan will depend on the assets you own, your health situation, your family situation and a variety of other factors. In many cases, we can prepare a simple Will, a Health Care Power of Attorney and a simple Durable Power of Attorney for as little as $450.00. That price includes all office and telephone conferences, drafts, copies and any revisions that we may have to make.

9. Can’t I write my own Will?

Sure, you can, but it’s probably not a good idea. An experienced elder law or estate planning lawyer can provide you with invaluable assistance in planning your estate. We know the law and also have “real world” experience to help you avoid costly mistakes. We can help you by discussing important issues that you may not have thought about or considered. Most clients that we meet have very limited knowledge of tax law or Medicaid and nursing home law.

10. When should I start my estate plan?

Right now. In far too many cases, we meet people who should have started planning long before they became ill. While we can usually help to “pick up the pieces” and develop an estate/incapacity plan, the best solution is always to seek out the help of an experienced professional early in the process and adjust your estate plan as things change in the future. If you wait too long and become incapacitated (from an aneurism, for instance), then our only option may be to seek a guardianship. Guardianship is a process whereby the local Court oversees the management of your estate. It is never a very satisfactory solution. Guardianship can be extremely expensive and time consuming due to strict reporting and accounting requirements. The far better course of action is to avoid the need for a Guardianship!

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