North Carolina Estate Planning Legal Questions

No. the executor nor heirs are responsible for the decedent's death. An heir can be for example if they ran up debts on a decedent's credit card and signed everything in their name and the charges are not customarily those used by an elderly person, etc. Many estates close insolvent without sufficient funds to pay all creditors.... Read More

What exactly do you mean "honor" the lawyer? How is this done? I assume you don't mean to give them an award and a parade. Contest of the will is done by filing a will caveat. If you do not file a caveat then the will stands if it is probated regardless of whether you agree or not with its terms. Codicils, if not executed properly, may be invalid and if that is the case they will not be admitted as part of the will. The estate will be administered without reference to these codicils. I also don't understand who exactly you are and what is going on here. Your post suggests that you are a beneficiary/heir or potential heir of the estate but that you may not be the executor named in the will. When someone dies with a will, an application for probate is submitted by the executor named in the will. The heirs/beneficiaries either consent or not. If they object to the appointment of the executor, they file those objections. If they are accepting the appointment but challenging the will or a codicil itself, then this is done by filing a will caveat. The court clerk will hold a hearing or bind over the caveat for trial of whatever issues are raised in the caveat. If the caveat is successful, the will is usually thrown out (most often these situations concern someone who made a recent will or who changed a will leaving a significant chunk of assets to one person and leaving very little or completely disinheriting someone else). A caveat will not make an invalid codicil valid though unless there was some error by the clerk in determining the codicil was invalid. You sound confused and I would suggest that if you are a disgruntled heir that you consult with a probate litigation attorney who practices in the county where the will is being probated. Have the attorney review the will and codicils and determine if you would benefit from a will caveat.... Read More

If you were on the deed with your parents, them by entire ties and you by JTWROS, then no one can "put" someone on the deed without a need deed being executed. The new deed, which you allege put granddaughter on it, would need to be signed by you and mom, to be legal. Take a copy of the deed to an attorney to look at it.... Read More

Where is the property located? Many counties' register/recorder of deeds offices are online. I would search the county/state where the land is located and see if deeds are available online. If so, look under the grantee for your mother's name. Some places allow you to type in other information - such as year recorded. Any information that you can input will help narrow the search. If the county is not on line, try calling the register of deeds office for that county. They may be able to help locate the deed. They will charge for a copy if it is mailed to you and they may need you to send payment and a written request. You do not need to find the attorney who drafted the deed if all you need is the deed itself. However, some deeds indicate the name of the attorney on there.... Read More

You have a right if a) there is a will and you are a listed heir or there is no will and under FLA law you are an intestate heir, and b) there is even an estate-cash, bank accounts, property, etc. Unfortunately you will have to investigate to whether any of the above exist. You could call the county she died in and see if court records will tell you if a will was filed. You could also hire a local lawyer down there to investigate.... Read More

First, do you have a copy of the trust instrument? And are one or both of your parents still alive? Where was the trust created? In PA? You indicate that you are "in litigation." What does that mean? If a lawsuit about the trust has been filed it would mean that you have an attorney. In such case its not ethical for me or anyone else to discuss these issues with you other than your attorney. If you do not have a copy of the trust it could be subpoenaed. And if its irrevocable, it would suggest that a lawyer was involved in drafting it. If nothing else, the lawyer who drafted it can have his files subpoenaed if they still exist and there may be a copy there. Once you get the trust read it. The trust will spell out when an accounting has to be provided. I draft revocable trusts that provide that if the settlor is still alive then there does not have to be an accounting. There may be a provision like that in the trust. If that is the case then your father has no duty to provide any sort of accounting to you. If the trust is silent, then read the trust to see what law governs its interpretation and then review the trust code for that state. In the states where I am admitted, the state may have laws which say how often an accounting must be made. Usually, its once per year and only a beneficiary of the trust can demand it. Below is the statute for PA. If the settlor, your father is still alive, I am not sure that your father had any duty to report to you at all. The statute seems to suggest that the duty to report only commences when the settlor is adjudicated incompetent or dies. Again, if you have a trust litigation attorney, then you need to discuss this with him/her. If you don't have one then you need to get one. 20 Pa.C.S.A. ? 7780.3 - Trusts - Duties and Powers of Trustee - Duty to inform and report (a) Duty to respond to requests.A trustee shall promptly respond to a reasonable request by the settlor of a trust or by a beneficiary of an irrevocable trust for information related to the trust's administration. A trustee shall promptly respond to the Department of Public Welfare's reasonable request for information related to the trust's administration when a settlor or beneficiary is a resident in a State-owned facility or an applicant for or recipient of cash or medical assistance from the Commonwealth and the department certifies in writing that it has obtained a currently valid consent for the disclosure of such information from the settlor or beneficiary of the trust. A trustee may rely upon the department's certification without investigating its accuracy.(b) Notice after settlor of revocable trust has been adjudicated incapacitated.No later than 30 days after the date on which the trustee of a revocable trust learns that the settlor has been adjudicated incapacitated, the trustee shall send the notice described in subsection (i) to the settlor's guardian.(c) Notice after settlor of revocable trust has died.No later than 30 days after the date on which the trustee of a revocable trust learns that the settlor has died, the trustee shall send the notice described in subsection (i) to:(1) the settlor's personal representative;(2) the settlor's spouse or, if the settlor's spouse is incapacitated, the spouse's guardian;(3) each of the settlor's children who is sui juris and the guardian, if any, of each child who is not sui juris; and(4) the trust's current beneficiaries.(d) Notice after settlor of irrevocable trust has been adjudicated incapacitated.No later than 30 days after the date on which the trustee of an irrevocable trust learns that the settlor has been adjudicated incapacitated, the trustee shall send the notice described in subsection (i) to the trust's current beneficiaries. A revocable trust shall not be deemed irrevocable for the purposes of this subsection merely because the settlor has been adjudicated incapacitated.(e) Notice after settlor of irrevocable trust has died.No later than 3... Read More

Who is he? Technically, another person who is not on a checking account cannot sign someone else's name. That would be fraud/forgery unless the signing person had a valid power of attorney for the other person. If so, then the person should sign as illustrated by the following example "John Doe, as POA for Jane Roe" or something similar. The bank should also have a copy of the power of attorney on file. Of course, if this was done and the principal may have been too weak to write and authorized this and there was no one to object then the bank might pay the check. However, a lot of this is fact-specific. Who was the check made out to? What was it for? To pay the uncle's bills? Or was it to the cousin and made out fraudulently to steal from the uncle? The answers will indicate whether it was fraud or no. Now that the uncle has died, any money remaining in the account at the time of death, if the account was a POD (payable on death) account would go to the named designee. That does not excuse any fraudulent check writing that occurred before uncle died. The personal representative of your uncle's estate needs to review the checks that are believed to be fraudulent and see how much money we are talking about. If its financially worthwhile, the person who wrote the checks can be sued civilly and maybe even prosecuted criminally. If the person still has the money or the money can be traced to other assets (like a new car, house or investment account) then a constructive trust can be imposed and that money returned to your uncle's estate for distribution to your uncle's heirs as per his will or under the intestacy laws. If the money would end up going back to the person who wrote the checks, then nothing would be gained by suing though. You should discuss this with the probate attorney who is representing the estate of your uncle. If there is no attorney then the personal representative needs to get one.... Read More

How could this happen? Transfers of land by the living would involve the current owner signing a deed and making you the grantee or owner. While you do not sign the deed (just the grantor signs) you would certainly you would know about it when the property tax bill showed up and would take action to sue the grantor. The only other way would be for the grantor did this in secret and somehow arrange for the tax bills to still come to them. But that would make me wonder why they would be paying taxes on land they do not own. I have never heard of anyone who is alive doing this - I am saying only that it would be possible depending on what was done. The only other way you could receive the land would be if the current owner died and left a will devising the land to you or you would inherit it under the intestacy laws depending on your relationship to the owner of the land. Many deed offices for land are online. You can try going online to the county/state where the land is located and see how the land is titled. More is obviously going on than you relate in your post. I suggest that you consult a real estate attorney in the county/state where the land is located and be prepared to explain how it was that you owned the land and gave it to someone else and who the current owner of the land is and how you are related, if at all, to the current owner.... Read More

Your father's estate is primarily responsible for your father's medical bills. Depending on which state your father lived in at the time of his death, medical debts are given a priority if the bills were incurred in the last 6 to 12 months. Your brother is doing the wrong things if what you say is correct. In most states, if your brother and father had a joint checking account, then the money in the account would automatically pass to your brother outside of probate. In NC, money from a joint checking account can be added back into the estate if needed to pay bills but I don't know if this rule applies to your situation or not. The same is true of land. If the land was owned by your father but devised to you in his will, the executor could seek to sell the land if it was needed to pay bills. Your brother, if he is the executor, needs to sit down with a probate attorney. An estate needs probated for your father and the hospital or any other healthcare providers or creditors need to be given notice of death and need to file claims for payment of any amounts not covered by insurance. After the time period for filing claims has ended, then your brother needs to see how much money is in the estate and whether there is enough to pay the bills. If so, then they are paid by the estate. If not, then land may have to be sold or funds added in from the joint checking account. In some states, you and your brother would not be directly liable for the medical bills. However, in PA for example, there is a statute which may impose personal liability if your father's estate is insufficient. So, depending on where the estate is pending, it is conceivable that you might be personally liable at some point. However, since your father had both Medicare and supplemental insurance, this might be enough to cover the bulk of the bills. Your brother, if he has not done so, really needs to consult a probate attorney in the county/state where the estate from your father is or would be pending. Your brother needs to ascertain whether there are any probate assets justifying probate and he needs to find out whether proceeds from the land or joint checking account could be added in to satisfy any claims that are outstanding.... Read More

Where your father married is irrelevant. Its where he lived at the time of his death and what he owned and how it was titled that is important. First, when did your father die? Has sufficient time passed since his death that an estate would be probated (at least 30 days)? What assets did your father own at the time of his death? Not all assets are probate assets. Things like jointly owned real estate owned with a right of survivorship, life insurance and jointly held bank accounts are all types of non-probate assets. Which means that if there is no will, these things would pass to the other surviving person or named beneficiary and you would not be entitled to any of it if you are not the survivor/designated beneficiary. Your father's naval service is also irrelevant unless there was some kind of pension or other benefits. Usually, those are like life insurance, i.e., it is a beneficiary designated asset and unless you were the named beneficiary you would not be entitled to these benefits. Example: your father and wife had a joint checking account and a jointly owned house and a small life insurance policy and she was the beneficiary. These things all pass to her and you get none of it. If your father has been deceased for over 30 days, you can contact the probate court in GA in the county where he lived at the time of his death to see if an estate has been opened for your father. You can compel your father's wife to open an estate or produce a will if you believe one exists. If there is no will then your father will be deemed to have died intestate (Latin for no will). In such case your father's wife would get 1/3rd to 1/2 of any real or other property (depends on how many other children there are besides you) owned by your father plus a year's support. If your father had very few probate assets or a lot of debts, it may not be justified to hire a lawyer. What I suggest you do is figure out what your father owned and how it was titled. Things like land can be easily checked by contacting the recorder/register of deeds in which the land was located and getting a copy of the deed. You can contact the Navy pension office and find out if you were a named beneficiary. Depending on what you find out, you may then want to consult a GA probate attorney who practices in the county where the estate is or would be pending in GA to determine whether any kind of challenge should be pursue or whether your father's wife can be compelled to open and administer an estate. I don't care whether the stepmother has decided that your father's children are not entitled to anything. That is not her choice to make. State law has already decided - the children get 1/2 to 2/3rd of any probate assets. What you need to figure out is whether there are any probate assets.... Read More

Why is this an NC estate planning question? This does not have to do with NC estate planning or even NC law in general. The long arm statute (which every state has) allows non-residents of a state to be sued. So why would it not apply? And jurisdiction over what? If a car loan was taken out in Missouri, where is the lender located? Everywhere? Divorce does not have anything to do with the car loan. The divorce decree can say whatever it says, but as between the lender and the borrower, the borrower was still liable. So on your facts, ex-wife used a poa to buy a car for herself in husband's name and later divorced. Wife got the car but never paid for it. I don't know if the divorce decree ordered her to assume responsibility for the payments or refinance. It probably did but if she was unable to refi and chose not to make payments there is not much that can be done except go back to the court that entered the divorce decree and pursue for contempt. Who are you attempting to obtain records from and what kind of records? Why would these records be subpoenaed? Records cannot be subpoenaed unless there is some kind of a court case so this does not make any sense based on your scarce information. If there is a public record (like a court judgment) you can obtain those. Any member of the public can see a public record. Your husband's credit reports and loan application is private and if he is stationed somewhere then he will have to give you or someone else a power of attorney if he wishes to access the information. Long arm statutes only apply if someone is being sued in a state where they do not now reside in. The questions will be (1) is it fair for the non-resident to be sued there; and (2) what is the basis for the state's assertion of jurisdiction. There are 2 kinds of jurisdiction: specific and general. An example of specific jurisdiction would occur where a party brings suit over a broken contract or where a specific harm occurred, like a car accident. General jurisdiction is based on a party's general contacts with a state outside of the lawsuit. For example, GM sells cars in all 50 states. A car it sells is defective. GM can be sued in the state where the person who bought the car lives; the injured person does not have to go to Michigan to sue. You say you want to know if ex-wife can be sued here, but I don't know where "here" is. Do you mean NC?If your husband wants to sue the ex-wife, he should sue the ex-wife where she resides NOW not where she lived at some time in the past. Why would he want to sue here anyway? The fraud occurred in Missouri since that is where the car loan was taken out. Arkansas has no connection with the case unless the ex-wife has general connections with Arkansas and husband lives there. If husband lives in NC, suit could possibly be brought here but I question whether NC has jurisdiction because the fraud/harm occurred in Missouri and wife has no connection with this case if the ex-wife does not live here now. Besides, NC is a non-wage garnishment state. Suing her here in NC will do nothing if ex-wife owns no property in NC because husband will not be able to collect on any money judgment. Even if he could sue here in NC, he would still have to take the judgment to the new state where the ex-wife lives and have it registered in the other state so it could then be enforced. You have a bigger problem and that is the statute of limitations. If the fraud occurred prior to 2008 and your husband knew about it, then the statute of limitations may well have expired. It certainly did if this was NC which only has a 3 year statute of limitations.... Read More

There is no easy answer to this question other than to keep looking. Keep looking through the decedent's stuff, it might be in there. Some people keep their will in a safe deposit box. If the decedent had one it might be in there, but you will likely have to get a court order to open it unless there is another person on the safe deposit account who has access to the safe deposit box. In Florida wills are not filed with the court until a person dies. You can check with the Clerk of Court to see if someone has filed the will with the clerk. Some attorneys who prepare wills keep the original will in their office. So you might want to call the person's attorney if you know who that is. Alternatively, you could contact attorneys in the decedent's area to see if they have done a will for your decedent. You might also contact a local bar association to have them put out the word among their member attorneys that you are looking for a will. In Florida if you cannot find the will the law presumes that the decedent either revoked the will or never had one.... Read More

To change the Will, you should either execute a new Will or a Codicil changing the successor Trustee of any trust established by your Will.  As for changes to a power of attorney, you should execute a new one. Regards, Daniel K. Hicks, Attorney Ingersoll & Hicks, PLLC 336-794-2278... Read More

You would have to execute a deed transferring title to your children.  You should note, however, that doing so will most likely mean you have to file a federal gift tax return if the value of the home is over $13k per child.  You should also know that if a child gets divorced or sued, the home may be subject to claims of creditors or the divorcing spouse. Regards, Daniel K. Hicks, Attorney Ingersoll & Hicks, PLLC 336-794-2278... Read More