Real Property and Medicaid Estate Recovery

When a person age 55 or older is the recipient of Medicaid, Medicaid tracks all of the money spent on the person’s behalf. While a Medicaid recipient can hold on to his or her home while alive, at the recipient’s death, Medicaid will place a lien on the recipient’s estate. This is known as Estate Recovery. The lien is typically placed on the Medicaid recipient’s home which then must be sold to pay back Medicaid. Clearly this disrupts many people’s plan of passing their real property down to their loved ones. There are some exceptions—times when Medicaid does not place … Continue reading

Change in the Law – North Carolina Year’s Allowance

As of January 2019 the Year’s Allowance in North Carolina has been adjusted. For a surviving spouse there is an increase in the statutory allowance from $30,000.00 to $60,000.00. The Spousal Allowance is intended as a type of stop-gap; a means of meeting the immediate needs of the surviving spouse when he or she is widowed and presumably assets may be tied up during the estate administration. The $60,000.00 Spousal Allowance is authorized by statute to provide for necessities. It may only be paid from the personal property of the Decedent and not from real property. With the exception of … Continue reading

Inheriting Real Property and No Deed to Show For It.

When you find out that you have inherited real property, a reasonable assumption might be that a deed is forthcoming. After all, when we buy real property we get a deed to show that we own it. However, with inherited real property in North Carolina, there is no new deed. It may seem counter-intuitive but it is the practice. The reason for this is because real property passes immediately upon death in North Carolina. Therefore, you owned the property as soon as the person who left it to you died. Of course, if the person who died has a lot … Continue reading

Intestacy in North Carolina or Dying Without a Will

I understand that 75% of North Carolinians die without a Will. This is called dying Intestate. If you die without a Will, then the Intestate laws of the state of North Carolina determine the distribution of your assets. As discussed in a Blog Post, dated February 15, 2013, a common misconception is that if a married person dies without a Will, the assets pass automatically to the surviving spouse. This is not entirely true. Under current law, this is what happens:   If The Person Who Dies is Married: Real Property If survived by one child or a descendant of … Continue reading

North Carolina Small Estate Administration

“Small Estate Administration “may be an option for small estates, both testate (with a Will) or intestate (without a will).  For eligible estates this allows the heirs to receive the property to which they are entitled under the Will or the Intestate laws of North Carolina with an abbreviated proceeding known as “Collection by Affidavit.” It is simpler, easier and a less expensive method. In order to qualify for this proceeding, the North Carolina estate must be valued at less than $20,000.00 ($30,000.00 if the sole heir is the surviving spouse). Thirty (30) days must have passed since the date … Continue reading

When is the best time for beneficiaries to Inherit?

Often times when I discuss drafting a Will for a client, we talk about whether the client’s children that are the beneficiaries should inherit outright or in trust. For many clients, if the child is over 21 or 25, the assumption is that the adult child should inherit outright. But is that really the best idea? So many factors should be considered in determining what is right for your estate plan and your beneficiaries. Once a person inherits, the money is his or hers and is subject to his or her creditors, divorce and other personal liabilities. While many want … Continue reading

2018 New Power of Attorney Act in North Carolina

As of January 1, 2018, North Carolina has adopted a version of the Uniform Power of Attorney Act.  This new statute overhauls the way we look at Durable Powers of Attorney. A Power of Attorney is a legal document that authorizes someone else to act as your Agent. “Durable” just means it remains valid even after the Principal becomes incapacitated, until a stated termination date or event occurs, or the Principal dies. Financial Exploitation from Powers of Attorney is a growing problem and this new Act is intended to provide intelligibility for those serving as Agents (we used to call … Continue reading

Estate Tax Exemption to Exceed $11 Million per Couple

It’s official. For 2018, the estate and gift tax exemption is $5.6 million per individual, an increase from $5.49 million in 2017. That means an individual can leave $5.6 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield $11.2 million from federal estate and gift taxes. And the annual gift exclusion amount is $15,000 for 2018, the first increase in five years. If you make lifetime gifts over that amount, they count against the estate tax exemption amount, which is actually a combined estate/lifetime gift exclusion amount. It has adjusted … Continue reading

Turning Eighteen or Going Off To College – Estate Planning

Most people don’t think about an “estate plan” until they are well in to adulthood. However, planning for unknown events is something that should be considered as young as age eighteen. Once a person turns18, there is no one with legal authority to act on his or her behalf if the young person should become incapacitated, either temporarily or permanently. A Durable (financial) Power of Attorney as well as a Health Care Power of Attorney would allow that young adult to designate the person or persons that he or she wants to have decision making ability in the event of … Continue reading

Guardianships in North Carolina

When an older person is suffering from a serious illness or impairment, whether physical or mental, which prevents that person from handling their own personal and/or financial affairs, or causes that person to be vulnerable to fraud, a court action known as a guardianship proceeding may be the best solution to address the problem and assist the impaired person. If a guardian is appointed for an adult who is deemed incompetent, the guardian appointed has the legal authority to make decisions on the incompetent’s behalf to ensure his or her personal well-being and/or estate (financial assets and property) remains protected. … Continue reading

Reviewing Your Beneficiary Designations – Retirement Plans and Life Insurance

I tell my clients to review their Wills, Trust and Powers of Attorney every three to five years to be sure that they still meet their intent. Often, all remains the same and no changes are needed. Other times, those named as fiduciaries have died or have had major life changes that no longer make them good candidates to serve as executor, trustee or attorney in fact. Despite the diligence in this review, many people neglect to review their beneficiary designations on some of the most important documents; the beneficiary designation forms on their 401K, IRA, life insurance and other … Continue reading

Adding Your Adult Child to Your Bank Account

Often times a client will ask if they should add their child’s name to a bank account and the answer is usually No! The client believes that it will be easier during life if the child is on the account as the child can assist with tasks such as bill payment. They believe it will be easier when client dies if one child is in control. Clients also believe it will save probate costs, and my favorite, even if only one child is added to the account, client’s often misguided belief that child will share the account with siblings on … Continue reading

North Carolina Digital Asset Law

  There is a question of what happens to a person’s “digital assets” upon death. A Digital Asset is an electronic record in which an individual has a right or interest. Digital assets and content include but are not limited to individual files such as images, photos, videos, and text files.  It also includes other digital content and databases owned and/or stored either on a devise owned or used by an individual on devices accessed via the Internet or in a Cloud.  Digital Assets also include but are not limited to email accounts, social media profiles (YouTube or Flickr), social … Continue reading

New Year’s Resolution to Review Estate Planning

As you come upon the New Year, it is a good time to consider whether your estate is in proper order. If you had and major changes in your life, such as divorce, the death of a loved one or a move to a different state, you should review the plan you have in place. I would encourage you to review the plan you have in place every three to five years or sooner if you have had a major life change. It may be that all is in order and no changes need to be made; however, you may … Continue reading


Living probate allows a person to file an action petitioning the court to have a Will declared valid. What makes this law new and different is that the Will is proved before the testator (the person whose will it is) dies. The purpose, of course, is to prevent a contest of the validity of a Will after the testator’s death. A judicial declaration (court order) is sought that declares that a Will is valid prior to the death of the testator. If the court declares the Will valid, this order is binding on all parties and bars actions after death … Continue reading

North Carolina Department of Revenue Recognition of Same Sex Marriage for Purposes of Filing Tax Returns

Although the Internal Revenue Service began recognizing same-sex marriages on August 29, 2013, the North Carolina Department of Revenue has now issued a Directive that does the same (October 24, 2014). The Directive states “Same-sex couples who are legally married under any state law by December 31, 2014 must generally file a North Carolina income tax return using the same filing status claimed on the federal income tax return. However, if one spouse is a non-resident individual and has no North Carolina taxable income of the tax year, the spouse that is a resident of North Carolina or has North … Continue reading

Elder Financial Abuse in North Carolina

North Carolina law protects disabled adults of any age from abuse, neglect and exploitation. The law states that “any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information.” Different types of abuse include physical or mental abuse, neglect, or financial exploitation. Financial exploitation includes the illegal or improper use of a disabled or impaired adult’s resources for another person’s profit or advantage. It is this last type of abuse that we concern ourselves with here. While we often encourage clients to consider executing a Durable Power of Attorney, it … Continue reading

New Elective Share Changes in 2013

Effective October 1, 2013, the Elective Share rules for persons who die domiciled in North Carolina have been simplified and changed.  Although the rules are now easier to understand, they may have a dramatic change on married couples property rights in North Carolina. The “Elective Share” is the amount that a deceased person’s surviving spouse can elect to receive from the decedent’s estate if the decedent left them a lesser share (or nothing at all) in his or her Will.  This Elective Share allows the spouse to disregard the deceased spouse’s Will to the extent allowed under the law. Under … Continue reading

North Carolina Repeals the Estate Tax

North Carolina recently saw sweeping changes to the tax laws. The North Carolina legislature repealed the State’s estate tax making it retroactive to July 1, 2013.  The timing is key for wealthy families with deaths in the family since the beginning of the year. Those that had deaths in the family in 2013 expecting to pay a North Carolina Estate Tax received great news and substantial savings with this retroactive change. The lack of an estate tax will be beneficial to North Carolina, encouraging people to stay put or move to North Carolina from other less tax friendly states. Many … Continue reading