Health Care and Estate Planning: Legal Documents versus Medical Orders

The two primary health care documents attorneys prepare for clients as part of an estate plan are a health care power of attorney and an advance directive.  An advance directive is also referred to as a “living will” or a “declaration for a natural death.”  A health care power of attorney may contain an advance directive, in which case there may be only one multipurpose health care document in an estate plan. Health Care Powers of Attorney A health care power of attorney is a document where the principal appoints an agent to make health care decisions on their behalf … Continue reading

Physiology and Estate Planning: An Imperfect Pair

Early in my career and as I began specializing my practice in estate planning, I always found aspects of drafting and explaining health care powers of attorney and advance directives to be peculiar to my background.  Using terminology such as “persistent vegetative state”, “advanced dementia” and “artificial hydration and nutrition” felt out of place in a law office.  Additionally, evaluating a person’s mental capacity requisite to execute certain legal documents was daunting with no academic background in physiology.  I had not taken so much as a basic biology course since my freshman year at North Carolina State University circa 2002/2003.  … Continue reading

Ad Valorem Real Property Tax Exclusions in North Carolina

All homeowners are responsible for real property taxes collected by the local taxing authority.  The antiquated legal terminology for this type of tax is an ad valorem tax, which is defined as a property tax based on the assessed value of the property, which may or may not be equivalent to its market value.  The local taxing authority assesses the value of your home or other real property and charges you a tax based on the applicable tax rate.  You can also make a timely appeal of an assessed value determination.  There are many programs and regulations in North Carolina … Continue reading

Law Firm Carolinas Named to Fast 50 List

Law Firm Carolinas has been named by the Triad Business Journal to its “Fast 50 List,” which consists of the 50 fastest growing businesses in the Triad. It is the firm’s third recognition on the Fast 50 list. Managing Partner Carole Albright points to several examples of the firm’s growth over the past three years, including the purchase of a larger Charlotte office, renovations in the Greensboro office, and the opening of several new offices, for six total—Greensboro, Charlotte, Raleigh, Wilmington, Columbia (SC), and Greenville (SC). Partner Jon Raymer accepted the firm’s Fast 50 recognition at the Business Journal’s recognition … Continue reading

Estate Planning for Couples 101: Conflicts, the Power of the Survivor, Contractual Wills and Joint Versus Separate Trusts

For estate planning attorneys, the initial consultation with spouses can have some awkward moments to say the least.  Unlike with unmarried individuals, there is typically no diving directly into the minutia.  First, the attorney must recite a rather robotic disclaimer that, while one attorney representing both spouses with respect to their estate planning is rather common, it is indeed a conflict of interest from a professional responsibility perspective.  The attorney may go on to say that each spouse has the right to obtain separate counsel, and that such action is advisable, but offer to proceed with representing both spouses if … Continue reading

An Ode to the Surviving Spouse

Losing any loved one is difficult, but losing a spouse adds another dimension of not only grief, but anxiety, fear and confusion about the future. A marriage is a team effort – duties are delegated with respect to finances, home maintenance, social graces, and the many other elements of domestic life. And so, when one spouse dies, in addition to the grief felt, the survivor is often overwhelmed by taking on new duties which were delegated to their partner prior to their death. There are, of course, many family dynamics and there can be many variations and complexities, but in … Continue reading

A Loved One Has Died, What Should I Do?

Whether it be a parent, grandparent, or otherwise, when a loved one dies, creating a “to do” list is not the first thing often on a grieving family member’s mind.  However, we do live in a check it off the list, “get it done” type of world and so I often have family members call me the day of or day after the death of a loved one asking for counsel.  I get questions such as “should we go to the courthouse?”, “when is the reading of the Will?” and “should I pay [enter outstanding bill here]?”.  All of these … Continue reading

Estate Planning for Young Parents

Estate planning is not a topic on the mind of many vibrant 20 or 30 somethings often still in the process of building an estate for which to plan.  However, this can change quickly for young couples welcoming their first child into the world. As an attorney in my 30s, I often admit to clients that I neglected my own estate planning until the birth of my daughter. When you first bear the responsibility of becoming a caregiver of a truly dependent and initially helpless human being, it can quite significantly change your perspective. Even in cases where young parents … Continue reading

Last Will and Testament versus a Living Trust

Piggybacking off my last blog, many estate planning clients may find themselves considering the question of whether a Last Will and Testament is sufficient for their estate planning goals or whether they also need a living trust. First, it is necessary to state that a living trust is an addition to an estate plan and not in lieu of a Last Will and Testament. If one decides a living trust is needed for their estate planning, a pour-over Last Will and Testament is also part of the mix. A pour-over Will distributes all property which may end up passing through … Continue reading

The Three Essential Estate Planning Documents

Many times, when I meet with estate planning clients for the first time, they ask that I tell them what they “need.” While I often preach the mantra that estate planning should not be “cookie cutter” and is not a one-size-fits-all approach, it is fair to say that there are three (sometimes four) essential estate planning documents that everyone needs at least by the time they approach retirement age. While the contents can vary between clients, the need for the documents applies to everyone. In this blog, I highlight these three documents. Durable General/Financial Power-of-Attorney The North Carolina Uniform Power … Continue reading

The Strange Case of Real Estate and Probate

One of the biggest talking points in estate planning and estate administration conferences is what assets do and do not pass via probate.  To answer the basic question of what probate is, which is a topic in and of itself, probate is the court-supervised procedure by which assets pass from a decedent to devisee in the case of testate decedents (those who die with a Will) or from decedent to intestate heirs in the case of intestate decedents (those who die without a Will).   The probate procedure in North Carolina, also sometimes referred to as estate administration, is outlined in … Continue reading

Simple Summary Of The “Free” Step-Up In Basis For Estate Assets And Possible Changes with the Proposed American Families Plan

Most of my clients do not have to deal with estate taxes due to the current 11.7-million-dollar exemption per spouse.   Despite this, there are still many important conversations involving taxation that may come up in the initial estate conference at the death of a loved one from deferred income tax with inherited IRAs, fiduciary tax returns, taxation of income earned by irrevocable trusts, and the big one that always comes up and which is the focus of this blog, capital gains taxes.  Capital gains tax is not an estate tax or related to death at all, but it is still … Continue reading

Law Firm Carolinas: New Shareholder, Partners, Offices and Lawyers

Law Firm Carolinas announces the following changes: Harmony Taylor, who is in the Charlotte office and practices community association (HOA and condo) law and civil litigation, has been named a Shareholder. Three attorneys have been named Partners: Joe Thompson, who practices residential and commercial real estate, and David Wilson, who practices North and South Carolina community association (HOA and condo) law, both from the Charlotte office; and Jon Raymer, who practices commercial and residential real estate, from the Greensboro office. There have also been several recent additions to the firm: Nancy Guyton and Hunt Harris have joined the Wilmington office. … Continue reading

Miscellaneous Long-Term Care Planning Info and Options

Note: The allowances and income and resource limitations referenced in this blog are subject to periodic change and this info should not be relied upon without consulting with an attorney at the relevant time.       In prior blogs, I have discussed Medicaid options for skilled nursing and the Special Assistance Medicaid program for an assisted living facility.  In this blog, I will address some miscellaneous items to ponder when long-term care planning.  Assistance for Elderly Veterans First, is your elderly loved one a Veteran?  If so, Veteran’s Aid and Attendance may provide a small amount of assistance with long-term care cost.  For … Continue reading

Who is the “Community Spouse” in Long-Term Care Planning and What Can They Expect?

Note: The allowances and income and resource limitations referenced in this blog are subject to periodic change and this info should not be relied upon without consulting with an attorney at the relevant time.       When one of two spouses goes to a long-term care facility and applies for benefits, there is important lingo to be aware of when speaking with an elder law attorney and/or applying for benefits.  The spouse in the long-term care facility is called the Institutionalized Spouse” and the other spouse is referred to as the “Community Spouse.”  In this blog, I discuss the asset and … Continue reading

Clarity on the difference between an Assisted Living facility and a Skilled Nursing facility: Special Assistance Eligibility

Note: The allowances and income and resource limitations referenced in this blog are subject to periodic change and this info should not be relied upon without consulting with an attorney at the relevant time.       In this blog, I attempt to give some insight on a critical point of confusion in elder law which is the difference between assisted living and skilled nursing and the governmental programs available for financial assistance in each type of facility.  Despite what you may have been told, traditional long-term care Medicaid does not pay for a stay in an assisted living facility.  However, Special … Continue reading

If I Ask if Your Will Has “Per Stirpes,” It’s Not a Personal Question

As I recently went through my estate planning 101 routine to a pair of prospective clients , I happened to drop in the phrase “per stirpes.”  I try to avoid legalese in my initial client conferences, but some terms are unconscious and unavoidable for estate practitioners who spend a significant time parsing through complex legal scenarios facing their clients.  One of the prospective clients abruptly interrupted me and said, “Whoa now, I thought we just came to talk about doing a Will.”  In jest, I assured him that he could not catch anything and there was no need to get … Continue reading

Update on Emergency Authorization of Remote Notarizations

The saga continues in this third entry of the three-part series (so far) on North Carolina’s authorization of emergency video notarizations during the pandemic.  As of March 12, 2021, Governor Roy Cooper signed House Bill 196 into law, which allows video notarization to continue through December 31, 2021.   The Bill acts to amend the previous authorization which expired on March 1, 2021, and appears to have retroactive effect to save any brave soul who continued remote notarizations after the Bill’s expiration date. At this time, there is still no indication that permanent authorization of remote notarizations is in the works … Continue reading

Remote Notarizations to Sunset on March 1

As the sunset date approaches for remote notarizations under the temporary emergency authorization, it is now apparent that the legislature will not agree on a bill authorizing a further extension before the expiration. Therefore, we will revert to the notarial requirement of “close physical proximity” on March 1, 2021 at 12:01 a.m.   Folks in the know believe that there is legislative support for either an extension of the emergency statute or its permanent authorization and codification. However, other non-related budget aspects of the bill are causing a delay (insert your cynical political comment here).  Additionally, it is speculated that when … Continue reading

Estate Planning in a Pandemic: Remote Document Signings are the Now and Hopefully the Future

A global pandemic will certainly induce one to consider his or her own mortality and, as such, initiate a revisit or beginning of their estate plan.  But paradoxically, the pandemic has also made it more difficult for us to venture out to ensure these matters are in order.  Many nursing homes across the state of North Carolina are on lock down due to the pandemic, making it more difficult to discuss any loose ends of an estate plan with a distressed loved one residing in a care facility.  Despite the increased difficulty during the pandemic, with the emergence of Zoom … Continue reading