Estate Planning and Elder Law FAQs
Planning for an uncertain future may seem like daunting task. You and your family may have many questions about protecting and dividing your assets, making medical decisions, arranging living and care matters, and much more. Find answers from an experienced attorney to these questions and many more.
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Wills - FAQ
FAQ - WILLS
1. Are wills public record in NC and SC?
-Yes, wills are public in both NC and SC.
2. Are wills different from state to state?
-Yes, there are differences in wills from state to state. These differences are frequently seen in the terminology of the will and in the execution requirements. However, there may also be substantive differences between the laws of different states. For example, nuncupative wills are not valid in South Carolina. Additionally, different states have different laws regarding property and inheritance and if you move to a new state and do not update your will, certain provisions in your old will may not apply or may be invalid or unenforceable.
3. Do wills in NC and SC need to be notarized?
-Notarization is not required, HOWEVER you may have more difficulty probating a will that is not notarized and the will may be challenged or even rejected.
4. Where are wills filed?
-In NC, prior to death, a will may be filed in a county courthouse for safekeeping but this is not required.
-After death, both NC and SC require that original wills be filed at the courthouse in a timely manner.
5. Are wills recorded?
-In NC and SC wills are not recorded. Powers of attorney are recorded.
6. Can you file a will before your die?
-In NC, you can file a will for safekeeping at the courthouse before you die. Check with your county of residence for more information.
7. How are wills executed?
-Wills are usually executed before witnesses and a notary. It is preferable for a will to be executed in an attorney’s office.
8. Do you need a new will when you get divorced?
-It is a good idea to update your will and your estate plan whenever you have a major life change. Depending on how and when the will was drafted, if it is not updated, your estate could go to the wrong person if it is not updated after a divorce
9. Can any attorney do a will?
-It is best to have your will drafted by an estate planning or elder law attorney who focuses on this practice area.
10. Why do wills go through probate?
-Wills go through probate so the court can confirm that the executor carries out the terms of the will and distributes property to the correct beneficiary.
11. What can you do when wills are unfair?
-Unfairness is very subjective and unfairness alone may not be a sufficient basis for challenging a will. Everyone has a right to leave his or her property to whomever they choose. However, sometimes unfairnss is the result of undue influence or a lack of capacity. In those cases, it may be possible to challenge and overturn the will.
12. wills – what is an Executor?
-An executor is the person responsible for securing, managing, and distributing the decedent’s property to the beneficiaries under the will. The executor must be appointed and confirmed by the court and must carry out his or her duties under the court’s supervision and subject to the court’s approval. Executors are also commonly referred to as personal representatives, legal representatives or administrators (in the case of intestacy).
I Don't Have Many Assets, Do I Still Need a Will or Trust?
Wills and trusts protect more than just financial assets. A will can determine guardianship of your children and even pets if something happens to you. Please refer to the Guardianship and Special Needs page for more information.
Protecting More Than Just Financial Assets
You may also want to direct that certain assets are used to pay certain expenses. Sometimes, it is just as important to know where your debts will go as where your assets will go. A good financial planning discussion with your attorney should include a discussion of ways to lessen the impact of taxes, long-term care, funeral expenses, probate fees, and continuing debts on surviving family members. You should also ask how a trust can protect your children's assets from creditors and predators.
If you or a loved one needs assistance with probating an estate, obtaining a will, or trust, Nancy Roberts can be an advocate for you. We can help answer your questions and guide you in the right direction. Contact us today by starting a live online chat on our website today.
I Want to Get Married or Remarried, Do I Need to Change My Will or Trust?
Absolutely! Your estate planning documents should be updated when your life circumstances change. Marriage is a prime example of a life change that requires a new estate plan.
This is true for a number of reasons:
- you need to include your new spouse in your will or trust
- if you have children from a prior marriage, you will probably want to ensure they are provided for even though you are remarried
- The law prohibits you from disinheriting a spouse, therefore, if you don't add your spouse to your will, assets intended for others could be diverted to pay the spousal elective share.
Examples of other life events that require a new will are divorce, remarriage, adoption, the birth of a child, disability, or simply the passage of time. Since the law changes from time to time, your estate plan should be reviewed periodically to ensure that it is up-to-date and conforms with the current law in your state.
Contact us today to discuss updating your estate planning documents. Consulting with an attorney will provide you with the information you need to make informed choices about your estate.
Can I Save Money by Drafting My Own Will?
By drafting your own will or using pre-printed forms, you are taking a risk. Self-drafted, or online wills may not fit your circumstances, or worse, may not meet the legal requirements in your state. An online will is unlikely to maximize your ability to avoid the need for time-consuming hearings or court orders. If state requirements are not met, your will could be declared invalid and your assets pass by intestacy as if you had never drafted a will. Invalid and poorly drafted wills don't save money. They just shift the problems and legal costs to your family and loved ones. A poorly drafted will may require beneficiaries to endure a long and expensive probate process, or defend against a will contest that could have been avoided.
Consulting with an attorney will provide you with the information you need to make informed choices about your estate. Contact The Law Office of Nancy Roberts today to discuss your options.
How Much Does Probate Cost?
If you have a will, your family will need to open an estate and probate your will in order to receive property left to them in your will. There are several different types of costs associated with the probate process. These costs include court fees and costs, executor compensation, attorney fees, and other costs. The total cost of probate will depend on the size of the estate and the length of the probate process. Probate usually takes a year if there are no problems or family disagreements. If there are family disagreements or will challenges, probate can take multiple years. The largest fees will usually be the executor's fee and any attorney fees. Executors/Personal Representatives are entitled to a fee based on a percentage of the estate. This fee is usually around five percent of the value of the probate estate. You may also need to hire a CPA to assist in the preparation of tax returns. Lastly, there are court costs and fees. These fees are listed below for North and South Carolina and are usually not very high,. However, the fees listed below do not include the cost of petitions, motions, and hearings.
North Carolina Fees
The probate fee is a small percentage of the value of the probate assets owned by the decedent on the date of death. For new administrations and estate proceedings, the 2014 fee is $120.00 plus 0.40/100.00 of the gross estate with a minimum fee per filing of $15.00 and a maximum cumulative fee of $6,000.00. There is a separate General Court of Justice Fee on the value of the gross estate as assessed at the time of the Inventory and at each Accounting. http://www.nccourts.org/Courts/Trial/Documents/court_costs_chart-Oct2014-estates.pdf
South Carolina Fees
In South Carolina, the filing fees are as follows:
Assets of the Regular Estate Filing Fee $0.00 to $4,999 $25.00 $5,000 to $19,999 $45.00 $20,000 to $59,999 $67.50 $60,000 to $99,999 $95.00 $100,000 to $599,999 $95.00 plus .0015 in excess of $100,000 $600,000 and above $845.00 on the first $600,000 plus .0025 in excess of $600,000
Small Estate Affidavit or Affidavit for Collection of Personal Property
Assets Less than or Equal to $100.00
$101.00 to $4,999.99
$5,000.00 to $19,999.99
$20.000.00 to 25,000.00
Includes $5.00 certification fee
*Pursuant to SC Code of Laws §8-21-770
Help with Probate
More questions? Contact Nancy at 980.247.3011
What Does the Person Responsible for Managing the Estate, i.e. the Executor, Administrator, or Personal Representative Do?
Even before being approved by the court as personal representative, the person named in the will should take steps to locate, gather, and protect the decedent's assets. It is not ok for family to help themselves to the decedent's belongings before the will is probated. Assets can only be distributed to the beneficiaries under the will if all creditor's claims have been paid and expenses are paid in the order specified by the probate court.
In order for a person named in the will to act on behalf of the estate, a court must confirm and approve the appointment (or qualification) of the personal representative. The approval process requires the filing of a request with the probate court for appointment.The court will then issue a Certificate of Appointment (South Carolina) or Letters Testamentary (North Carolina). Once approved by the court, the personal representative may open a bank account in the name of the estate and begin to pay bills and inventory the decedent's property. The personal representative will also be responsible for preparing and filing annual accounts of the decedent's property with the probate court. There are numerous other duties. In North Carolina, a helpful resource for personal representatives is the North Carolina Estate Procedures Handbook.
What Do I Do When a Family Member Dies?
If the family member had a will, you need to provide it to the probate court in South Carolina, or the Clerk of Court in North Carolina.
In South Carolina, an individual in possession of the will of a person who has died, must present the will to the court in the county in which the deceased resided within thirty days of the decedent’s death. The failure to provide the will to the probate court can result in a finding of contempt of court. The will may be provided to the court without opening a probate estate.In North Carolina, the person named in the will as the executor should apply to probate the will. However, if the executor does not apply to have the will proved within 60 days after the death of the testator, any devisee named in the will, or any other person interested in the estate, may apply to probate the will. Notice must be given to the person named as executor. See N.C.G.S. § 28A-2A-2, Executor failing, beneficiary may apply. The Clerk of Court has the power to compel production of a will and, as in South Carolina, the failure to provide a will may result in a finding of contempt of court.
How Do I Start the Probate Estate Process?
After presenting the will, the estate may be opened. In South Carolina, in order to open a probate estate, you file either an Application for Informal Probate, or a Petition for Formal Probate depending on the circumstances. You also file an Application for Appointment to be named as the Personal Representative. If you were not named in the will as the Personal Representative, there is a South Carolina statute that establishes the priority of individuals to be appointed as Personal Representative.
How Does Estate Planning Protect Me?
Drafting a will or trust, as part of a comprehensive estate plan, may reduce the likelihood that you will become the victim of financial exploitation during an extended illness, after an accident, or due to the normal aging process. Unfortunately, there are people who take financial advantage of the ill and elderly. These people may be family members or even caregivers. Good financial planning can make your assets harder to reach, and can make attempts by others to access assets more noticeable to you and to people who are in a position to help you such as: other family members; lawyers; trustees; or accountants.
Consulting with an attorney will provide you with the information you need to protect yourself and your financial affairs. Contact The Law Office of Nancy Roberts today at 803.520.3127 to discuss your options.