Category: Estate Planning
Tags: Beneficiaries, Powers of Attorney, Title, Trusts, Wills


A Will’s Limits in North Carolina Probate

Posted on: May 8th, 2015

north carolina probateA will cannot achieve every goal of the testator. No matter how finely crafted provisions are made and assets are addressed in a will, additional tools can help the testator preserve their wishes.

An improperly drafted will, one that is not filed, or dying without a will could prompt courts to distribute the estate according to North Carolina intestacy law. Estate distribution for decedents who die intestate could transfer assets to individuals the decedent did not intend to provide for, and accordingly, fail to provide for the loved ones the decedent wanted to include.

Here are a few methods testators might employ and the complications that could develop:

  1. Relying on title. Individuals sometimes choose to hold real property, bank accounts, and other assets in joint ownership with right of survivorship with the individual they intend to leave the asset to. Should their intentions change, instead of properly changing how title is held, they might rely on leaving directions in their will. This method has several risks. One, if the joint owner is involved in a lawsuit, the jointly held asset might be vulnerable. Two, instructions in a will do not update how title is held. When drafting a will in North Carolina, the testator should discuss their ultimate intentions with an attorney. An attorney might recommend the use of trusts as an alternative way to hold title to assets. Trusts offer creditor protection and can include specific provisions for beneficiaries.
  2. Expecting a will to update beneficiary forms. A testator might keep their will up-to-date, adding new beneficiaries if families grow, or removing individuals if a divorce occurs. However, the most current will does not revoke nor automatically update beneficiary designation forms on retirement accounts, bank accounts, insurance policies, and other assets. Payable-On-Death and Transfer-On-Death forms must be kept current separately. An old POD or TOD form could mean a former spouse receives the assets and a new spouse is not provided for. Instructions in a will voiding all prior beneficiary designations is not enforceable.
  3. Powers of Attorney. Individuals using DIY wills and estate plan templates found online might use these tools for designating an individual with authority to act under a power of attorney. North Carolina only recognizes certain forms as official documents authorizing power of attorney. Whether you are granting another individual authority over financial decisions or medical care, take the time to review documents with an estate planning attorney to ensure the proper forms are used and that they are completed correctly.

A will is not a private document after the testator dies. Individuals who are concerned about preserving the confidentiality of asset distribution should review trusts and other planning tools with an attorney. Although a will is an important document in an estate plan, it should not be used alone. A will created to complement other planning tools could help prevent probate issues and family disputes.

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