It is important for newlyweds to have wills drafted for several reasons. First, most of the property that you each own is going to be separately owned in the beginning. Under the laws of North Carolina, if you pass away without a will, your surviving spouse is not always entitled to 100% of your property. If you want to guarantee that your spouse is going to inherit everything, you’re going to need a will. Also, for singularly-owned property, your spouse will not be able to handle your affairs in the event of your unavailability or incapacity without a durable power of attorney, and an estate planning attorney can assist you with that as well.
Once married couples start consolidating bank accounts or buying real estate together, this is less of a concern. For jointly owned property, when one person passes, the other person automatically owns the property without there being any need for a will.
Secondly, some important clauses included in a will can ease the burden on your spouse in the event you do pass away. For example, you can draft a will that waives the bond requirement. That is a huge burden lifted – your spouse will not have to pass a credit check and pay a bond premium to administer your estate. Your will can include provisions allowing your spouse to sell your property without court approval; again, your spouse will benefit from not having to pay an attorney to get a court order.
Third, if you are blending families, the only way to leave property to someone not related by blood or a step-child is to gift it to them in a will.
Another benefit to seeing an attorney to discuss your estate plan after you’ve recently been married is to ensure that your beneficiary designations are all up to date. You’ll want to change your beneficiary on life insurance policies and retirement plans, for example, to your new spouse.
Finally, a discussion with an attorney about probate and the benefit to owning joint property cannot be understated if you’re bringing a lot of debt into the relationship. While your spouse is not responsible for your student loan debt, for example, your estate will be – there may need to be some planning involved to pass along property to your spouse instead of your creditors. You may also be able to plan your estate so that probate could be avoided entirely!
If you’re newly married and want to ensure your spouse is protected in the future, the attorneys at Jesson & Rains can help you.
Kelly Rains Jesson was interviewed by Eugene Rho on HomBaBiz Network's Podcast. HomBaBiz is a radio podcast website that hosts investors, entrepreneurs, graduates and career-builders. Click here to listen.
Litigation happens. We believe it’s beneficial to all parties involved to amicably resolve disputes before getting the courts involved; but sometimes that just isn’t possible. Litigation costs can be wildly unpredictable, vary on a case by case basis, and can add up quickly.
Take two similar cases: In “Case 1,” the case moves quickly towards trial but resolves early at mediation. In “Case 2,” the case moves slowly through discovery, with all parties objecting to the other party’s discovery requests; there is a day-long mediation where the case doesn’t settle; there are complicated issues of law to be researched and argued before the Court; and then a costly trial. It is obvious that “Case 2” would cost more money; however, what is not always obvious in the beginning is whether a case is going to follow “Case 1” or “Case 2”’s path. We try our best to estimate costs for our clients and be honest (sometimes brutally) about potential cost, but a lot of the cost depends on your opposing party.
For our business clients, and in some limited circumstances, individuals, there may be a cheaper and more predictable way: Alternative Dispute Resolution (“ADR”). ADR has been around for a long time and can be contractually mandated between the parties, usually in the form of mediation and/or arbitration. Mediation is when a neutral third party goes back and forth between the parties in an attempt to negotiate a compromise. Arbitration is a middle ground between mediation and a lawsuit. The parties present their evidence to a neutral third party who will decide the case; however, arbitration is generally far less formal than a lawsuit and costs less time and money because there are no motions filed or discovery exchanged between the parties.
There are other advantages to just saving time and money. For example, disputes that a business may not want made public (which would be a matter of public record should litigation ensue) can be resolved in a confidential nature through ADR. Where ADR really shines is in the resolution of complex disputes, like a complex breach of contract dispute or complex construction defect case. Using ADR, the parties can select an expert in the field to act as the arbitrator or mediator, instead of relying on a jury of average people who likely would not have the necessary specialist knowledge to properly decide your case.
However, businesses should be careful about blindly throwing in arbitration clauses into their contracts without first consulting an attorney. If the arbitration clause in your contract is not enforceable, then you will end up in litigation anyway. For example, there have been many lawsuits filed recently regarding the Samsung “exploding” phones. People who have been injured when the Samsung phones spontaneously combust are finding that, when they file the lawsuit, Samsung is filing a motion to dismiss the case because there is an arbitration clause contained within the phone’s warranty guide. While the consumer has 30 days to opt out of that provision after buying the phone, the majority of people do not do so because they do not know about it! Further, pursuant to the contract, the proceedings between the consumer and Samsung are secret, Samsung has the right to choose the arbitrator, and, if Samsung wins, the consumer may be required to pay Samsung’s costly legal fees.
Seems like a great deal for Samsung, right? However, In January of 2017, a federal appeals court in California ruled that the arbitration clause did not comply with California law and, therefore, the consumers were not bound by the clause. There have been many other cases in recent history where Courts have refused to enforce arbitration clauses against consumers. Frequently, the Court’s reasoning is that the clauses are hidden among other terms (so the consumer is “tricked”), not negotiable, and unfair.
The takeaway from all of this should be that, while ADR is a useful tool to move cases towards a quick and often relatively cheap resolution, the arbitration clause needs to be enforceable. Litigating the issue of whether an arbitration clause is enforceable can be extremely costly. Make sure to consult an attorney who can check to ensure that your arbitration clause is enforceable in the states in which you do business.
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