|Q.||What is a will and why should a person have one?|
|A.||A will is a written document in which you direct who is to receive your property upon your death. If you have any real property (land) or personal property (cars, jewelry, money) that you want to give to a specific person you must have a will. Otherwise, the property will pass to persons in accordance with the Intestate Succession Laws. |
|Q.||What are the Intestate Succession Laws?|
|A.||These laws set forth how property is to be distributed when someone dies without a will. Generally, the property will pass to your surviving spouse and children, but not in equal shares. |
|Q.||How can I make a will?|
|A.||You should contact a lawyer for assistance in making a will, to ensure that it is properly drafted and correctly signed and witnessed. If a will is not prepared as required by law, it may be deemed invalid. An invalid will is useless, and your property will pass to your heirs by Intestate Succession (see above). |
|Q.||My father has no property other than his social security income and pension, both of which will terminate at his death. He doesn’t need a will, but wants me to handle his monthly bills. Someone told me I should get a power of attorney, what is that?|
|A.||A power of attorney is a document in which a person gives you (called the attorney in fact) the power to act on their behalf. It would allow you to pay your father’s bills using his checking account after you give a copy of the power of attorney to the bank.
There are two primary types of powers of attorney:
Power of Attorney: This allows you to handle your father’s financial and personal affairs, bills, etc. when he is unable to do so, or when he directs you to handle his affairs. However, you cannot make decisions about your father’s healthcare. A power of attorney that is durable (durable power of attorney) if properly written stays in effect even after the person becomes incompetent. If you are planning for possible future incompetency, your power of attorney must be durable.
Health Care Power of Attorney: This allows you to make
decisions about your father’s healthcare and treatment, but does not authorize you to make financial decisions.
|Q.||Can a person be the attorney in fact for healthcare and financial decisions?|
|A.||Yes, but it is up to the person giving the power of attorney to decide who he or she wants to appoint as attorney in fact. Often, there are valid reasons for wanting one person to handle the financial affairs, while another person handles the healthcare decisions.
For more information about wills and estate planning see:
|Q.||How can I find a copy of someone’s will?|
|A.||If the person’s estate was administered in North Carolina you can contact the Clerk of Court in the county where the estate was administered. |
|Q.||What if I don’t know which county? |
|A.||Most estates are administered in the county where the individual lived at their death. |
|Q.||How can I see a will of someone who is alive, but his will is at the Clerk of Court’s office?|
|A.||Wills placed in safekeeping with the Clerk’s office cannot be reviewed by anyone, except the person who signed the will, the person’s attorney or the person’s duly authorized agent (see, powers of attorney). |
|Q.||How can I find out if someone owns a piece of real estate?|
|A.||Real estate records are not kept in the Clerk’s office. The Register of Deeds maintains those records. If, however, a person “inherited” the property, that is received the land from a relative or from a will, then some information may be available in the estate file of the person who owned the property at the time he or she died. |
|Q.||A relative (friend) just died and I am supposed to handle her estate. What does that mean?|
|A.||Handling a person’s estate, depending on the value of assets in the estate, your relationship to the decedent, and whether other people are entitled to some of the assets can be as simple as paying the money to the Clerk of Superior Court or so complicated that estate lawyers and tax professionals assistance are required.
In general, handling someone’s estate means:
- Determining all of the decedent’s assets or property (land, automobiles, boats, money, stocks, jewelry, or other items of value);
- Identifying and notifying the creditors of the estate (the people or businesses to which the decedent owed money before his death (mortgage, car loan, credit cards)) and the persons or businesses who are due money as a result of the decedent’s death (funeral home, hospital bills);
- Identifying and notifying the persons or organizations entitled to a share of the estate (spouse, children, friends, charitable or religious organizations);
- Publishing notice to creditors in the local newspaper;
- Paying the decedent’s debts;
- Filing accountings with the Clerk of Superior Court, showing income and
- Distributing the rest of the estate as required by the decedent’s will or
by intestacy law.
|Q.||Whom should I contact to begin this process?|
|A.||Contact the Clerk of Superior Court in the county in which the decedent lived. Although it depends on a number of factors, in general you must have authority to handle the estate. Your authority comes from letters of appointment called “Letters Testamentary” and “Letters of Administration”. You may also have to be bonded. |
|Q.||Is there a cost or fee to handle a person’s estate?|
|A.||Depending upon the type of estate there may be filing fees and court fees assessed. |