Wills and Estates

At Roberti, Wittenberg, Lauffer and Wicker Law Firm, we draw upon our experience to help you understand the law and find solutions so that you can save a significant amount of your assets and protect your life’s savings.

Step by Step How to Create an Estate Plan

Why Make a Will?

What is a Living Will?

Not all Property is Controlled by a Will

Revocable Trusts

Life Insurance and Annuities

Retirement Plans and IRAs

Gifts During Your Lifetime

Useful Resources

Step by Step How to Create an Estate Plan :

• Compile an up-to-date list of all family assets, reflecting values of the property listed as accurately as possible and showing in whose name(s) the property is held.
• Decide who will inherit your property. Do this by preparing a family tree, starting with you and your spouse and continuing down through your children and grandchildren. If other relatives or persons are to be beneficiaries of your estate, they will need to be included in the "family tree" as well.

1. Identify your goals for those for whom you wish to provide at your death, taking into consideration individual needs and abilities.
2. Determine how your property should be divided among those for whom you wish to provide.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.

• Arrange a General Power of Attorney. If you have not executed a General Power of Attorney and you do become incapacitated, your spouse or some other person will have to petition the Court to have you declared incompetent, have a guardian appointed, post a bond, and file annual reports detailing your assets and liabilities for as long as your are incapacitated or until your death. A guardianship can be both expensive and time consuming and all of your financial affairs become a matter of public record.

1. Arrange a Health Care Power of Attorney. You may include a Living Will in a Health Care Power of Attorney.
2. Sign your will in front of witnesses.
3. Save your will in a safe place.
4. We can help you with your specific needs. Print-out the estate planning form, fill it out and bring a copy with you to a scheduled appointment with us. For assistance, or to ask questions, email us at the Roberti, Wittenberg, Lauffer, & Wicker law firm or call 1-919-683-2436 or 1-800-277-3003

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Why Make a Will?

To ensure that your property goes to those persons whom you want, you need a Will. Did you know that in North Carolina, if you are married and have children, at your death all of your property does not necessarily go to your surviving spouse? If you die without a will, only that property which is titled jointly in both spouses names with rights of survivorship will pass directly to your surviving spouse. In addition, only the first $30,000 of personal property, one-half of the remainder of personal property and one-half of realty not held as tenants by the entirety will pass to the surviving spouse. The remainder of all property will pass to your children. If your children are minors, then the following will occur: a guardianship proceeding will be instituted, a guardian will be appointed for the minor children, and the property will be held by the Clerk of Court or in a bank account until the child reaches the age of majority (age 18). Accounts will have to be filed with the Clerk of Court in the County where the children reside every year until the child reaches age 18. The guardian will have to be bonded and an attorney will have to be employed to assist with the guardianship. Guardianship can be a very costly and time consuming process.

If, however, you had drafted a valid Will prior to death, then your property would pass to those persons whom you named in your will - usually your surviving spouse if you are married. If you desire to provide directly for minor children, you could do so through a testamentary trust contained in a will, naming a guardian and trustee for the minor children, not requiring a bond for the guardian and/or trustee, and thereby obviate the need for the costly guardianship proceeding and the Court’s involvement in your affairs. In addition, you could provide the age at which your children would be entitled to receive the property held in trust - most 18 year olds are not ready for the responsibility of handling money or property.

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What is a living will?

In North Carolina, a living will is a document that tells others that you want to die a natural death if you are terminally and incurably sick or in a persistent vegetative state from which you will not recover. With a living will, you can direct your doctor not to use heroic treatments that would prolong your life (for example, using a respirator or ventilator), or to stop such treatments if they have been started. You can also direct your doctor not to give you food and water through a tube ("artificial nutrition or hydration" or to stop such feedings if they were begun by other caregiver).

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Did You Know That Not all Property is Controlled by a Will

A will controls property that is in your names only or jointly without rights of survivorship. Property owned jointly with rights of survivorship automatically passes to the survivor at the death of one of the joint owners. In addition, a will cannot control property such as life insurance, retirements plans, IRAs and deferred compensation as these are controlled by beneficiary designations. As part of an estate plan, these beneficiary designations can be changed to meet the needs of those for whom you wish to provide and to minimize taxes which may be payable at your death.

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Revocable Trusts

To protect property which would otherwise pass to minors or persons inexperienced with managing money, you might want to establish testamentary trusts . You would choose a person whom you believe has the ability to manage the assets placed in trust and through the testamentary trust give them direction on how the money held should be maintained and used for the benefit of those named as beneficiaries of the trusts.

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Fiduciaries

Decide who you will appoint to be your executor, and who you will appoint to be the trustee. You do not have to name the same person for each position, although you can if you so desire. In addition, you should choose an alternate person to serve in each position in the event that the primary individual chosen cannot serve due to illness, death or disability.

Life Insurance and Annuities

• Ensure that all beneficiary designations are current. If a beneficiary does not survive you then these funds may be paid to your estate, making such funds available to pay claims of creditors of your estate.
• Determine whether you have enough insurance to pay death taxes which will come due at the time of your death or the death of your surviving spouse. You may wish to consider a "second-to-die" policy for this purpose.
• Establish an irrevocable life insurance trust for the benefit of your children or grandchildren if your estate is large. The face amount of an irrevocable life insurance policy is removed from your estate, as there is usually almost no cash value to such a policy at the time of transfer, there usually are no gift taxes due on the transfer.

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Retirement Plans and IRAs

Ensure that all beneficiary designations are current, as these plans pass by beneficiary designation.

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Gifts during Your Lifetime

During your lifetime you can reduce the size of your estate, and thereby the amount of death taxes due, without incurring any gift tax consequences.

Both you and your spouse can give up to $10,000 each per year to any person you wish and you can do this as many times as you like so long as the amounts given to each person per year do not exceed $10,000.

You may use your lifetime exemption, currently $625,000 and rising to $1,000,000 by the year 2006, making gifts to beneficiaries during your lifetime.

You can always make a gift of any amount to your spouse free from tax because of the unlimited marital deduction. By doing this you can ensure that the lifetime exemption of the first-to-die is fully used.

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