Danger 1: Probate eats up your child’s inheritance. If you don’t have an estate plan, your property will have to go through the probate process before your children and inheritors can take possession of it. Though the probate process doesn’t usually take up as much time or money as people may fear, it can be a laborious process. When combined with estate or inheritance taxes, it can significantly reduce how much money you leave to your children. A good probate attorney costs money, and that money will have to come from your estate.

Danger 2: Your property may go to those whom you do not wish to receive it. Many people are surprised to learn that state laws already determine who receives your property if you die. These laws, called laws of intestate succession, exist in all states, and unless you create a valid will they will choose for you who inherits your property. Without an estate plan, your property may pass to your parents, your siblings or some other family member even if that was the last thing you wanted.

Danger 3: It can hurt your family. If you’ve spent your life caring for your family, being there when they needed you, protecting them and providing all the support you can muster, the failure to have an estate plan can ruin this legacy. Without an estate plan your family may end up fighting over your possessions, they may have to make difficult decisions about your medical care without any guidance from you and they may spend endless hours in needless worry and emotional turmoil.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Negative: You can end up making a lot of mistakes. A lot of DIY will software provides good information, but that doesn’t mean they are perfect. An examination of one such will preparation software on the market revealed that preparing your will with it could lead to serious problems. What kind of problems?  Issues found were those that incorrectly omitted references to children, left out references about ademption, and didn’t name a guardian for your child.  Ademption is a term used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator‘s estate at the time of the testator’s death.

Positive: You’ll learn about wills. Preparing to make your own will can give you a good idea of what the process involves. This in itself is often a great benefit as it makes you more comfortable with the endeavor. When you hire an estate planning attorney you need to play an active role in creating your estate plan, and a basic education about the process will allow you to do this instead of sitting idly by and tuning out.  One way to receive this basic education is to attend one of our estate planning seminars where you’ll learn more about estate planning without the hassle of trying to navigate a do it yourself will.

Negative: You can cost yourself more time and money than just hiring a lawyer. Making your own will saves money, right? Wrong. Especially if you don’t take your will to an attorney to make sure it’s written correctly. If your home-made will takes its mistakes with it to court, your estate can spend a lot of money cleaning up the errors.

Positive: It can save you money. Bringing a bad will before probate is costly, but a DIY will that you’ve vetted through an attorney can save you money. The key point is to always get legal advice from an attorney when creating something as important as a will.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

A good estate plan is one that is up-to-date, regularly reviewed and one that takes into consideration all the changes we go through in our lives. As a new article in Forbes points out, some of these changes may go unaccounted for and can cause significant problems if not corrected. Don’t assume that everything in your estate plan is correct, and take the time to look for these common mistakes.

Mistake 1: The wrong beneficiary. If you have an IRA or retirement account that you’ve had forever, you very well may have the wrong person listed as your beneficiary. This is especially true if you started your plan before getting married or having children. Take a look at your documentation and change the beneficiary if necessary.

Mistake 2: The wrong guardian. Your will should name a guardian to look after your children if you should die. But what if that guardian is no longer as close to you as he or she was when you made the will or doesn’t want to have that responsibility any more? What if your kids are now teenagers who need a guardian with different parenting skills? Look at who you have listed as a guardian and, if necessary, choose someone else by making a change to your will.

Mistake 3: Your living will is bad. This one applies to any medical directive. Your wishes may have changed, the laws may have changed or the document may have been incorrectly created. Review and update if necessary.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

The laws governing wills have long been the subject of rumor and popular misconceptions. Let’s look at three of them and why they aren’t true.

Myth 1: The Reading Of The Will. You can blame fiction writers, TV producers and anyone else with a flair for the dramatic for this myth. You’ve probably seen it dozens of times. A dour-faced attorneys sits before the gathered family of the deceased and reads the terms of the will—with shocking results! In realty, this dramatic scenario is neither required by law, nor does it take place very often. While you can demand someone read your will in the presence of your family, this will have no effect on the legality of the document or how it is used.

Myth 2: Your Adult Children Are Guaranteed An Inheritance: Many states have provisions that will prevent a decedent’s family, including his or her spouse and minor children, from being completely left out in the cold when it comes to inheritance. However, you are under no obligation to leave your adult children anything, and can effectively disinherit them.

Myth 3: The State Will Take My Property. Actually, this myth is true, but it only happens in extremely rare circumstances. If you don’t create a will, and if you have no family members to inherit your property, your state will inherit your estate under escheat laws. However, even if you fail to make a will, your property automatically goes to your family in order of their closeness of relationship to you.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

While putting together a will might seem like second nature to some, it’s a complete mystery to others. We’re going to go over what the basic formalities of a will are and why they are important to follow.

1. The will must be in writing: By writing, I’m not referring to handwriting. It is recommended by most estate planning attorneys to avoid handwriting your will if at all possible. There are a few rare exceptions to a written will including a video will. Keep in mind, though, that these are rarely accepted unless special or dire circumstances are in place. The writing, be it typed or handwritten, must be readable. In most states, the testator must be at least eighteen years of age to write their will.
2. The testator must sign the will: The testator is the person who is writing their will. This is a condition held within all states. The testator’s signature doesn’t need to be spelled correctly and it doesn’t need to be legible. If the testator is unable to sign their will, they can make a mark on the signature line. This mark can be an X, a fingerprint or any other mark denoting their attempt at authenticating their will.
3. The will must be witnessed: Two signatures are required on most wills and, in some circumstances; three signatures are required in order to make the will a valid instrument. Those signing as witnesses do not need to know the contents of the will, and they cannot be a beneficiary or the spouse of a beneficiary listed on the will. Otherwise, their signatures are not valid. If the will does not have all the signatures, it is not a valid instrument.
4. All signatures must be witnessed by each other: The witnesses must all be present when the testator signs the will, as well as in presence of each other’s signatures. The testator must also be present during all the witness’s signatures. Most estate planning lawyers keep everyone in the same room until all the signatures are complete.

Throughout history, there have been some interesting materials used for various individuals’ wills. Some have used the back of envelopes, receipts, ticket stubs, and the back of a bill and dust jackets of books. So long as the will meets all the above conditions to include all the signatures, it is a valid document no matter what it is written on. Despite this reality, estate planning attorneys still recommend a typed and legible document.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

A trust can be an invaluable asset to someone who is developing an estate plan or saving for a child’s education. The terminology associated with trusts, however, can seem complicated and confusing. If you feel confused, or are just looking for an introduction to the world of trusts, the following primer may be useful to you.

While there are many kinds of trusts, all trusts fall into one of two broad categories: express trusts and trusts created by operation of law. An express trust can be either private or charitable, and generally occurs when you express that you want to set aside property for another’s benefit. Trusts created by operation of law are either resulting trusts or constructive trusts. These usually only occur where an express trust has failed, or the court says you’ve committed some type of fraud, so you needn’t concern yourself with those at this point.

Now that you know you are looking at an express trust that is either private or charitable in nature, you now have to look at the parties involved. A safe rule-of-thumb is that trusts usually have three parties: the settlor, the trustee, and the beneficiary. Who are these folks? The settlor is the person that creates the trust by setting aside the property – this property is known as the trust res – in the first place. The trustee is the person that administers the trust, distributes income from it, and who also holds legal title to the trust res. The beneficiary is, quite simply, the person or persons who benefit from the trust.

Putting all this together, if you put $10,000 in a trust so that your niece may attend college, and you name your best friend to look after it, what have you done? You have created a private, express trust in which you are the settlor, your best friend is the trustee, and your niece is the beneficiary, with a trust res of $10,000. If you think you may be interested in learning more about your trust options for you and your family, we encourage you to call us for an appointment – (336) 547-9999.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Living wills allow you to express your wishes when you’re otherwise unable to do so, such as when you get sick or are seriously injured in an accident. Though no state requires you to create a living will, these documents are very useful and can prevent confusion and conflicts between your loved ones and your health care providers. Not having a living will can lead to significant problems for your spouse or family members, especially if they have differing opinions about the kind of care you should receive.

When you become sick, injured or otherwise lose your ability to make choices, someone else has to step in to make medical decisions on your behalf. When you create a living will you express your decisions through the document and there is no need for your medical care providers to have someone make the decisions for you. If you don’t make a living will, your spouse typically has the legal authority to make these decisions. If you are not married, the decision typically falls to your parents or other family members. In other situations, such as when your family members cannot agree about medical treatment, a judge may hold a hearing to determine who should have the legal authority to make decisions for you. This process differs between states, but can be complicated and expensive.

If you don’t have a living will but have appointed someone as your health care power of attorney, there generally won’t be any need for court intervention. When you create a health care power of attorney, sometimes known as a healthcare proxy, you let someone else make medical decisions on your behalf. If you’ve created both a living will and a health care power of attorney, the person granted medical decision making rights has to act in accordance with the terms of the living will.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Making a will is a key part of any comprehensive estate plan. Making sure your will meets all the legal requirements of your state is the least you can do when making your will, even though there are key pieces you should include that are not required by law. Talking to a local estate planning attorney to ensure your will meets all of your state’s minimum requirements is the best way to ensure you’ve created a valid will.

Requirement 1: Age and Competency

All states require that in order for you to create a valid will you must first meet a minimum age requirement. Typically, you have to be at least 18 years old, though in some states you can be younger. You may also be able to create a will if you’re married and under the age of 18 or otherwise legally emancipated. As long as you meet the age requirement and are mentally competent, you can create a will.

Requirement 2: In Writing

Every state allows you to create a will in writing. Many allow you to create a will entirely in your own handwriting, called a holographic will, but wills are typically typed or otherwise printed. A limited number of states allow for verbal or oral wills, but usually only in limited circumstances.

Requirement 3: Signed

If you write your will you have to sign your will. If you’re physically incapable of signing you can have someone sign for you, though you should only do so in front of witnesses.

Requirement 4: Witnessed

If you’ve typed any portion of your will or had someone else prepare it for you, you have to have at least two competent adult witnesses sign the document. They should do so in your presence and in the presence of one another, preferably immediately after witnessing you sign and affirm that the will is yours.

The best way to make sure you fulfill all these requirements in accordance to state laws is to work with an experienced estate planning attorney.  We would be happy to meet with you to discuss the best estate plan for you.  Call us for a meeting – (336) 547-9999.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Are you in the beginning phases of the estate planning process? This is an overwhelming task for some, and with good reason. There are a lot of decisions to make regarding creating a will, creating a trust, trustees, trustee duties, trust property, executor duties and so on. It is possible to garner an understanding of terms and processes prior to your first consultation with your estate planning attorney. For example, should you create a last will, create a living trust or create a living will? Or, should you create all of these things?

Before answering any of these questions with solid answers, you must first have an understanding of what each term means. Due to the similarity in the sounds of these terms, it’s common for people to confuse their purposes. Each is an important ingredient during the estate planning process, however each plays a different roll in the overall pictures.

Last Will: This document is used in order to ensure assets and properties are properly distributed to all beneficiaries listed within the will’s contents. This document covers all of your last wishes to include guardianship for your children under the age of eighteen if applicable. Most estate plans carry this tool as standard practice due to how essential it is. Without a will, your estate is likely to go into probate and, as many already know, experiences in probate courts are costly.

Living Trust: Living trusts, compared to last wills, are not usually subject to probate. As mentioned above, the probate process not only is lengthy, but probate attorney fees are expensive. A living trust ensures assets and properties are transferred to designated beneficiaries. The trust is created during your lifetime, and added as part of your estate plan. You may be giving up your assets and property to the trustee, but you are not giving up control over anything. A living trust can be changed at any time to include changing trustees, adding property and removing property.

Living Will: Unlike a last will and a living trust, a living will has to do with your medical decisions. This document details all your healthcare decisions, to include is you should be kept on life support or not, well in advance. This document is often referred to as an advanced directive, as well. These end of life decisions are an important part of your estate plan. This document also appoints a representative to speak on your behalf when you are incapacitated.

Rather than having to learn all of these important topics prior to meeting with us, we invite you to join us for our educational seminars that are held every month.  At these seminars, Cheryl will teach you the basics of estate planning and will help answer questions you may have prior to meeting with our attorneys.  To find our next seminar, click here.  If we can be of help in any way, don’t hesitate to call us – (336) 547-9999.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Though a lot of people know that they can make a will, not everyone takes advantage of this opportunity. Some people shy from creating this important document simply because they don’t know how to do it or because they don’t think they can. Though you should always consult a qualified estate planning attorney before making a will, anyone making a will has to first meet two basic requirements.

The first requirements is that you have to be at least 18 years old in order to make your last will and testament. However, state laws differ, and in some states you can be younger than 18. Typically, you’ll have to be married or otherwise legally emancipated before you can make a will if you’re under the age of 18.

Regardless of your age, the second basic requirement you have to meet before you can make a will is being of sound mind. The definition of what it means to be of sound mind differs slightly between states, but essentially you must be mentally capable of making your own decisions and have an understanding of who your family members are and what possessions you own. Unless you’re mentally disabled or suffering from an illness that inhibits your ability to make decisions, most people generally meet the requirements of being of sound mind.

While you do have to be mentally capable to make a will, you do not have to be physically capable. If you get into a car accident and become physically disabled, you can still make a will by having someone else write it for you. You can even have someone else sign the will if you lose your ability to use your hands, though you have to do this in the presence of witnesses.

Each state is different when it comes to a will and the requirements needed for a will to be valid in that specific state.  Before making a will, it is best to find an experienced estate planning attorney who is licensed in your state.  To discuss making or modifying a will in North Carolina, please call us today at (336) 547-9999.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.