Last Will and Testament
Your Will will direct how your probate property is distributed after you are gone. Your probate property consists of all property that is titled (or owned) solely by you. You will name an executor in your will who will be in charge of locating all of your property, settling any debts that you owed, and distributing your property in accordance with your will. Your executor will be accountable to the probate court in this process.
Your revocable trust directs the management of the assets you have transferred into the trust during your lifetime and directs where those assets will be distributed upon your death. The revocable trust appoints you as initial Trustee. In this way, you will remain in complete control of the assets transferred into trust.
Since you and/or your spouse have children from a previous relationship, it’s recommended each spouse has his or her own trust. This works to ensure that after the death of the first spouse, the surviving spouse is provided for, but the children from a previous relationship are not accidentally (or intentionally) disinherited.
For married couples, it’s commonly recommended to form one trust to hold all of the marital assets. We refer to this as a joint trust. Each spouse is named as co-trustee of the joint trust, and can act independently of the other in the event of death or disability.
Minor children are legally incapacitated, and so they cannot receive property directly. In the case of a minor who inherits property directly, the court will appoint a guardian to hold and manage the property on the minor’s behalf, until the minor reaches the age of majority. When the minor reaches majority age (age 18 in North Carolina) he or she will receive the property in full. Your trustee can be directed to hold the property in trust for your children until whatever age you determine it is appropriate for them to receive the property outright. This alleviates the need for court involvement and sets the child up to be a better steward of his or her inheritance.
Eligibility for government benefits such as Social Security Disability Insurance, Supplemental Security Income, and Medicaid are needs based programs. An inheritance may make its recipient ineligible for the government benefit until the inheritance is spent down. Your trustee can be directed to hold your beneficiaries inheritance in a trusts that will not be considered in determining eligibility for government benefits. The trust can still provide income to supplemental a beneficiaries needs which are not being met by public assistance.
A spendthrift’s inheritance can be left in trust where it will be managed and distributed for his or her benefit. This helps to ensure your beneficiary’s needs are being met, and that the inheritance is not wasted in a short lived, extravagant or unhealthy manner.
Leaving an inheritance in trust for a beneficiary can protect those assets from going to the “out-law” in the event of a divorce. Assets held in trust may not be not considered marital assets, and thus not subject to division in a divorce proceeding.
Leaving an inheritance in trust for a beneficiary may protect those assets from the claims of creditors who have obtained a judgment in a lawsuit against your beneficiary. The assets in a properly drafted and managed trust may not be considered assets of the beneficiary to which a creditor can satisfy a claim.
In order to transfer ownership of out-of-state real estate at your death, a separate court proceeding in that state will be required. However, if the out of state real estate is titled in your living trust, no court proceeding will be needed to transfer ownership of the property. Rather, the directions in the living trust will dictate how the title will be held after your death.
Your trust document can provide instructions for the transfer or sale of your business interests, provided those interests are owned by your trust. Business interests not transferred into your trust during your lifetime are probate assets, and will require court supervision to dispose of.
If your total assets (including death benefits on insurance policies you own) is valued at or over $5.6 million dollars, your estate may be subject to a federal estate tax. You may need to consider employing additional measures to reduce or eliminate your estate tax exposure. Please visit or Advanced Planning page to learn more.
Your pour-over will serve as a back-up in the event you have not moved your property into trust during your lifetime. The pour-over will directs the court to transfer any remaining assets to the trust, so that they can be disposed of in according to the directions in your trust.
Financial Power of Attorney
Your financial power of attorney names an agent to manage your financial affairs in the event you become incapacitated.
Health Care Power of Attorney
Your health care power of attorney names an agent to make health care decisions on your behalf in the event you are unable to do so. The commonly used form in North Carolina also contains provisions for your living will—i.e. an advanced directive to withdraw or withhold treatment in end of life scenarios.