This is a follow up to my previous blog post, “Where there’s a will, there’s a way … to provide for your spouse.”
 
In that blog, I discussed that it is a common estate planning myth that when a spouse dies without a will, the other spouse will inherit everything.  Instead, a portion of the estate may go to the deceased’s children or the deceased’s parents instead of the spouse.
 
Today, I’m going to discuss what happens if you die without a will and you do not have a surviving spouse or surviving children.
 
Under the North Carolina Intestate Succession Act, the people who will inherit, in order of priority, are (1) Grandchildren, (2) parents, (3) siblings and/or their children, and (4) Grandparents and/or their children (the deceased aunts and uncles).
 
Like my previous blog discussed, you can certainly see a potential issue here for some people.  If you are unmarried or widowed and you don’t have any children or grandchildren, perhaps you don’t want your parents to inherit your estate?  If they are wealthy, perhaps your sibling, who needs money more than they do, would be better served with inheriting your estate.  Maybe you are estranged from your parents, and you would prefer your sibling or your favorite cousin or uncle to inherit your estate?
 
Another issue that comes into play are adopted children or step-children.  Under North Carolina law, an adopted child is treated as a biological child.  A step-child, however, is not treated as a biological child unless they have been adopted.
 
This issue works both ways. Perhaps your estranged parents adopted a child, who is now technically your sibling under North Carolina law, but you have no interest whatsoever in having this person inherit your estate.  You would need a will to ensure this does not happen. 
 
On the other side, perhaps your child has married someone who has a child from a previous marriage, who would be your step-grandchild.  If you have a grandparent-grandchild relationship with this child for 30 years and you want them to inherit your estate when you pass away, you will need a will if they are not adopted.
 
To summarize these blog discussions, in order to truly have a say in what you want done with your property when you pass away, you need a will.
 

Non-compete agreements are helpful tools for small businesses, especially those getting established or finding success in their location.  These agreements enable businesses to hire talented employees without worrying that the employee will leave the business and set up shop in the same town as a competitor, using the skills they learned at their previous employer to that employer’s disadvantage.  Non-compete agreements can be signed by employees or independent contractors, and they are oftentimes necessary when selling a business or part of a business.
 
However, former employees are frequently disadvantaged by overly broad and restrictive non-compete agreements that severely inhibit their right to earn a living.  For this reason, North Carolina courts scrutinize non-compete agreements.  But, employers should not shy away from using a carefully crafted, narrowly-tailored non-compete agreement to protect their customer base from poaching and proprietary information.

General Requirements:

1.   The agreement must be in writing, signed by the person agreeing not to do business.
2.  The agreement must be made in exchange for valuable consideration. This means that the    employee who is agreeing to the terms must get something in exchange. For new employees, this consideration is obviously employment.

• For existing employees, valuable consideration includes bonuses or promotions.

3. The agreement's purpose is to protect a legitimate business interest, such as

• "Good will," meaning client base or
• "Trade secrets" or "proprietary information"- this is confidential information you would not want your competitors to know, such as the ingredients for your "secret sauce" or an assembly-line process which makes your product at a rate two times faster than your competitor.

4. Reasonableness of the restriction, so to time, geography, and the scope of activities covered.

• Court look at these factors together, based on the company's client base, the territory of the employee and company, and the original duties of the employee and information he may retain. It is a fact intensive inquiry. Courts have upheld some three year restrictions while invalidating other three year restrictions based on the circumstances. Restrictions of five years or more are presumed unreasonable unless related to the sale of a business.

If a court finds that a particular provision of a non-compete agreement is unreasonable, the court will strike that portion from the contracts but enforce the rest.