For clients in both North and South Carolina, the typical estate plan consists of four documents: (1) a simple will, (2) a durable power of attorney, (3) a healthcare power of attorney, and (4) a living will. Many clients also elect to include a trust in their estate plan. The sections below describe these documents in depth and can help you decide which elements are best for your plan. At King Law we offer both estate planning packages and customized estate planning to meet your individual needs.
Having a will ensures that your express wishes are followed. If you do not have a will, state law will, by default, make certain decisions for you. For example, state intestacy laws dictate which of your family members receive what portion of your estate if you die without a will. Specifically, a will can be beneficial in the following ways:
Bequests: In your will you can specify gifts you would like family members and friends to receive upon your death. This can cut down on or eliminate conflict between family members and friends. You can make specific bequests, such as leaving a family heirloom or piece of furniture to someone. You can make demonstrative bequests, such as leaving a sum of money from a specific account or from the sale of a specific item to someone. You can make general bequests, such as generally leaving a gift of money without stating the source of the funds. Finally, you can make residual bequests, which means you can declare that any remaining property not accounted for goes to an identified person.
Devises: In your will you can also specify who will receive any real property (real-estate) you own at the time of your death. This includes property you own in part with others, subject to a few exceptions.
Wills in North Carolina vs. South Carolina
The previously mentioned benefits of having a will are exactly the same regardless of whether you live in North or South Carolina. Similarly, wills can be used to make gifts of real and personal property and to determine guardianship of minor children in both states. The main differences regarding wills between the States have to do with will drafting formalities, which our estate planning attorneys are very familiar with. It is important to note that regardless of which State you execute your will in, it is typically valid if you choose to relocate to another State, subject to only a few exceptions.
What is a Living Will and Do I Need One?
A living will is a document in which you expressly declare whether you would want to be kept alive by artificial or extraordinary measures in the event of extreme illness or injury. Specifically, living wills tend to address your personal preferences regarding resuscitation, pain medication, organ donation, feeding tubes, mechanical ventilation, and dialysis, as these are medical interventions individuals may have strong opinions about. This document can resolve disagreements between family members regarding your wishes and can prevent legal battles over such decisions. The combination of a healthcare power of attorney and a living will ensures that your wishes regarding your body and medical choices are followed as closely as possible without interference by a court.
Living Wills in North Carolina vs. South Carolina
Like powers of attorney, living wills also function the same way under both North and South Carolina law.
If you aren’t sure what type of will you need, our estate planning attorneys can review your case during an initial consultation. If you need to designate a guardian, create a trust, or draft a power of attorney, we can also assist you with these matters.
Call 888-748-KING today to schedule your consultation with one of our wills and estate attorneys.
Powers of Attorney
Some of our most important medical and financial decisions must be made during times of illness or when we are otherwise unwell. At this time, it can be beneficial to have someone authorized to make these decisions in the event you are unable to do so yourself. The purpose of a power of attorney is to designate someone who can make decisions on your behalf when needed. At King Law, we provide two types of powers of attorney, a durable power of attorney and a healthcare power of attorney. These are two of the most important estate planning documents you can have.
Durable Power of Attorney: A durable power of attorney allows you to appoint an individual who becomes your “agent.” This agent essentially stands in your shoes and is qualified to make financial decisions for you, sign contracts on your behalf and otherwise manage your obligations. Durable powers of attorney are very useful because they provide a trusted individual with broad power to ensure your bills and taxes are paid, your contractual obligations are fulfilled, and that your family’s needs are provided for. Durable powers of attorney are also somewhat customizable in that you can specify when they become effective, or they can be drafted to be effective immediately.
Healthcare Power of Attorney: A healthcare power of attorney also allows you to appoint an individual who becomes your “agent.” This agent is given the power to make medical decisions for you in the event you become unable to make such decisions yourself.
Powers of Attorney in North Carolina vs. South Carolina
Durable and Healthcare Powers of Attorney function the same way regardless of whether you are a North Carolina or South Carolina client.
A trust is a legally created entity that can be used to hold and manage assets. A trust can be established to come into existence during your lifetime; this is called an inter vivos trust or a living trust. A trust can also be established to come into existence upon your death; this is called a testamentary trust. People choose to establish trusts for a wide variety of reasons. Common purposes include:
- To avoid probate;
- To provide for minor children;
- To protect assets from a family member who cannot be trusted to spend them wisely;
- To protect a special needs child while maintaining government benefits;
- To provide for a pet;
- To maintain a collection;
- To give to charity;
- Tax planning; and
- To keep estate details private.
At King Law, our estate planning attorneys can help explain the benefits of each type of trust. If a trust fits into your estate planning goals, we can draft the trust documents according to your objectives.
Trusts in North Carolina vs. South Carolina
North and South Carolina laws approach trusts in largely the same manner. One slight difference, however, is the relative amount that can be saved by using a trust to avoid probate. Under North Carolina law, the probate court is entitled to take a small percentage of the probate estate value in fees. In North Carolina, this percentage is 0.004%. While this is a low percentage, it can represent a noticeable amount in large estates. For instance, when an estate valued at $1 million dollars is probated in North Carolina, the court is entitled to take a fee of $4,000. If the deceased’s assets are in a trust, and thus do not pass-through probate, this amount in court fees is saved.
In South Carolina, there are also court fees associated with probate, but these fees are calculated in a slightly different way. Under South Carolina law, the probate court is entitled to take one-quarter of 1% of the market value of all assets passing through probate. For instance, if your estate was probated and it was valued at $1 million dollars, the probate court could take $2,500 in fees. This fee can be avoided using a trust.
Estate Planning Packages
At King Law, we offer three levels of estate planning packages to both North and South Carolina clients – The Essential Plan, The Stewardship Plan, and The Legacy Plan. Each package offers several important services to cover your estate planning needs.
The Essential Plan
At a minimum, everyone should have a simple will, a general durable power of attorney, healthcare power of attorney, and a living will. These documents ensure that you control what happens to your property and who can make decisions on your behalf if you become incapacitated.
This plan also includes guardianship provisions to address custody of minor children, a HIPPA release, and other important planning documents. The cost of this plan includes free documents for your spouse.
The Stewardship Plan
Some people need more than the basics and want a periodic review of their estate plan. The Stewardship Plan includes everything from the Essential Plan, but it allows for a more detailed will such as a testamentary trust (a trust within the will) which allows you to divide property in ways other than through outright or lump sum bequests.
This plan also provides the option of drafting a life estate (Ladybird deed), a detailed personal information organizer to index all your important documents, and a leather-bound binder to store everything. Lastly, you will be assigned a Case Manager who will automatically review your file with an attorney every other year and meet with you to discuss any necessary changes or updates. The cost of this plan includes free documents for your spouse.
The Legacy Plan
There are other individuals who want greater protection and supervision in developing and maintaining their estate plan. The Legacy Plan is the most affordable way you can implement a plan to accomplish the most popular estate planning goals.
This plan includes the same options as the Essential and Stewardship Plans, but it provides for the creation of a Living Trust which will allow your family to avoid the expensive and burdensome hassle of probate upon your death. It also includes assistance with funding the trust with your real and personal property.
A trust enables your loved ones to carry out your instructions without court interference and with the privacy of not having to detail all your assets and information in a public forum. Most importantly, the Legacy Plan includes a Case Manager who will meet with you every year to discuss any needed changes. The cost of this plan includes free documents for your spouse.
Call King Law at 888-748-KING to schedule your consultation with an estate planning attorney. We can help you choose the right estate planning package or provide customized estate planning services to meet your needs.
If you have minor children, choosing who would take care of them in the event of your passing is one of the most important decisions you can make. If you fail to state who your preferred guardian is and both parents pass, a court will have to make this decision. In some cases, this can lead to custody battles that drag on between family members.
A guardianship provision can be included in your last will and testament. We also offer guardianship provisions in all of our estate planning packages.
Contact King Law to request your consultation with one of our dedicated wills and estates attorneys.
Probate & Estate Administration
In addition to our estate planning services, our estate planning attorneys can assist executors with the probate and estate administration process after a family member’s death. The probate process can be time-consuming and complex, and our attorneys can offer you guidance during this difficult time.
Executors are charged with filing the last will and testament with the court, identifying all assets and debts of the estate, paying debts and funeral expenses of the deceased from the estate, and distributing the remaining assets according to the terms of the will. The probate process generally takes about three months but can take over a year in certain cases. In a process this complex, it is easy to make mistakes. In the event of certain mistakes, such as late filings or incorrect distribution of assets, the executor may be held personally liable. Our attorneys can help you avoid risking this personal liability and can provide legal advice and assistance throughout the probate process.
You may also choose to name an attorney as the executor of your estate. This protects your family members from the stress of handling this important role while grieving. King Law offers probate and estate planning services in North and South Carolina.
Probate & Estate Administration in North Carolina vs. South Carolina
There are a few differences in how the States handle probate. For instance, in North Carolina, real property (real estate) does not typically pass-through probate. Rather, title vests in the deceased’s heirs (if they died intestate – i.e., without a will) or in the individuals the deceased designated should receive specific non-survivorship real property (if they had a will). The significance of this information is that in North Carolina, an executor of an estate should not pay utilities, mortgages or any other fees relating to real property from the estate account.
In contrast to the information above, in South Carolina, real property typically does pass through probate. The executor of an estate must transfer title of real property to beneficiaries using a deed of distribution. Our attorneys can assist you with this process.
Ancillary Estate Administration
Probate typically occurs in the State in which the deceased primarily resided. This gets a bit more complicated when the deceased also owned property in another State. These assets, particularly real property, may also need to go through the probate process in the other State. This process is called Ancillary Administration. This is especially common when individuals live near state lines, such as in Charlotte, NC or Fort Mill, SC, or own vacation properties, or have previously inherited property in another state. At King Law, our experienced estate attorneys can help you determine whether ancillary probate is necessary and assist you throughout the process if applicable.
King Law offers wills, estate planning, and estate administration in North Carolina and South Carolina. Call 888-748-KING today to schedule a consultation to discuss your estate planning needs.
Frequently Asked Questions
Why is it important to have a Will?
Your will dictates what happens to your estate after your death, so it’s one of the most crucial things you can do for yourself and your family. Besides providing legal protection for you, your spouse, and children, a will can also specify how you wish for your affairs to be handled after you are gone. In the absence of a will, important decisions are left up to the local court and North Carolina laws. Without a will, you will not be able to choose who receives your property or other assets, which can also put more stress on your family after your death.
Do I need an estate planning attorney to write a Will?
Although a person can prepare their own will, working with a North Carolina estate attorney provides greater assurance and security. A will should be prepared by a trusted North Carolina estate planning attorney who can ensure that it is in compliance with North Carolina regulations and is executed in conformity with state law. If a will isn’t drafted and executed correctly, it could be rejected by the court and make the process of settling your estate very difficult for your heirs.
What are the benefits of having an estate plan?
An estate plan, like a will or living trust, at minimum, ensures that you control what happens to your property and who can make decisions on your behalf if you become incapacitated. If you have minor children, a spouse, property, or other assets that you want to ensure are always protected and cared for as you see fit without court interference, an estate plan can provide that peace of mind.
How will an estate planning lawyer be able to help me?
With an experienced estate planning lawyer’s help, you can help your family avoid the risk of experiencing increased expenses, delays, and the possibility of estate litigation after your incapacitation or death. King Law’s North Carolina estate lawyers can customize estate planning services to safeguard your family and wealth to fit your needs best.