Basics of Will & Trust

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 Even if you have already told friends and family what you want them to have when you die, the state law dictates who gets your assets. With Will you can decide who gets what yourself. Also, if you have any minor children you have the power to assign their guardian and set aside any assets for them. 

 directs how your assets are to be distributed and identifies who will manage your estate and care for any minor children after your death. 

 In general, the executor is the person named in your Will to settle your affairs after your death. Your executor will file your Will with the probate court, pay your debts, distribute your assets as provided for in your Will, and oversee the entire probate process until your estate is closed. 

 State laws vary as to who can qualify as executor. Generally, in most states your executor must be a resident of the state you resided in at the date of your death. Common sense tells you that you want to name an adult who lives in your state and who is not a criminal or mentally incompetent or a financial institution with an office in your state. State laws can sometimes be more permissive or restrictive. If you want to name a non-resident executor or have other questions about who is qualified to serve, a network attorney can advise you about North Carolina’s laws. 

 In general: If you name two people as executors, they will have to agree on any decisions that are made. If you name three or more people as executors, they will act by majority vote. .

 Yes, generally, your executor is entitled to compensation but can opt not to take the compensation. The rate of compensation is usually determined by state law. If you want to specify how your executor is to be compensated, you will want to contact an attorney  to discuss including that provision in your Will. 

 The successor executor takes over if the first named executor cannot serve. As with the first named executor, usually two successor executors serving together will have to agree on any decisions that are made, and three or more serving together will act by majority vote. 

 The probate court will usually appoint an administrator for the estate. The administrator serves the same function as the executor. 

• In general, a guardian is a person named in a Will who is responsible for the support, education and welfare of the deceased person’s minor children. Keep in mind that if your minor child’s other parent is living, he or she will likely be given custody of your minor child.
• What does a guardian do?
  Usually, a guardian will take physical custody of minor children and be responsible for their support, education and welfare. A guardian essentially steps into the parents’ shoes.
• What happens if I name more than one guardian?
  Generally, if you name two people as guardians, they will have to agree on any decisions that are made. If you name three or more people as guardians, they will act by majority vote.
• Does my executor have a say in how the guardian spends my money on my minor children?
  No.
• Once a minor child turns 18, what happens to the money and other assets the guardian was controlling for him or her?
  Generally, the guardian is required to turn over those assets to the child, unless such assets are being held in a trust.

• Can a guardian spend my money on themselves?
  No, the guardian must spend the money for the benefit of your minor child or children.
• Do I need to name a guardian if my minor children are 16 or 17 years old?
  Generally, in most states a minor is a child under 18 years old. Please contact one of our network attorneys to discuss the laws of North Carolina.
• What does a Successor Guardian do?
  The successor guardian takes over if the first named guardian(s) cannot serve and assumes physical custody of minor children and responsibility for their care. As with the first named guardian(s), usually two successor guardians serving together will have to agree on any decisions that are made, and three or more serving together will act by majority vote.
• What happens if the Guardian or the Successor Guardian cannot serve?
  A court proceeding must be started to determine who will be appointed guardian of the minor children.

• Generally, your residuary estate is the assets remaining to be distributed pursuant to your Will after debts and taxes are paid and distribution of any specific bequests and your tangible personal property. In particular, real estate, cash, bank accounts, closely held business interests, or stocks and bonds are part of your residuary estate.
• What happens if I choose “All to named persons and/or charities”?
  You will be asked to provide information about the people or entities that you want to receive your assets.
• What happens if I choose “All to my spouse if surviving, if not, to my children” and my spouse dies before I do?
  In general, since your spouse didn’t survive you, at your death your tangible personal property will be distributed to your living children in as equal shares as possible.

When you die, your Will must be filed with a court. This starts a lengthy process. Until the process is done your designated heirs have no access to the assets you left them.

The property included in your Living Trust during your life will generally pass to the assigned person immediately. Also, this part is kept confidential and not part of the public record.

Finally, you can protect your children’s inheritance by keeping it in trust until the age or ages that you select

Last Will & Testament — accompanies the Living Trust document with pour-over directives.

Revocable Living Trust — allows for probate avoidance, directs how your assets are to be distributed, and identifies who will manage your estate and care for any minor children after your death.

There are three healthcare related documents which allow you to build and manage your healthcare needs.

From a way to give your representative an access to your health information; naming individuals to make health care decision on your behalf (if you have no decisional capacity), to letting you express your desires regarding life prolonging treatments for times if you have a terminal condition or are permanently unconscious.

Healthcare Surrogate Designation — names individual(s) that can make decisions for you if you are unable to make them for yourself.

HIPAA Authorization — names individual(s) who can receive healthcare information on your behalf.

Living Will Declaration — expresses your wishes regarding life prolonging procedures and treatments.

• What is a Healthcare Power of Attorney?
  This document allows a person to name others who will manage their medical care.
• What is a Healthcare Agent?
  Generally, a Healthcare Agent is the person who will make your healthcare decisions when you cannot.
• Who can be a Healthcare Agent?
  Generally, in most states anyone over 18 years of age can serve as a Healthcare Agent as long as they are not providing healthcare to the patient at the time of signing.
• Will doctors and other healthcare providers accept the Healthcare Power of Attorney?
  Yes, generally within the United States.

 If you become incapacitated or are otherwise unable to conduct your affairs you can have others with power to act on your behalf. This power is effective immediately, whether you are disabled or not. 

 Power of Attorney — appoints individual(s) to act on your behalf with regard to your financial affairs. 

• What is a Power of Attorney?
  This document allows a person to name others who will manage their financial affairs.
• What is an Attorney-in-Fact?
  Generally, an Attorney-in-Fact is a person who is authorized to make financial decisions and actions for another person, such as sign checks to pay bills, buy or sell real estate, vote stocks, etc.
• Who can be an Attorney-in-Fact?
  Generally, in most states an Attorney-in-Fact must be 18 years or older.
• Will banks and other financial institutions accept the power of attorney?
  Generally, yes.

 source- www.netlaw.com

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