By Attorney Edward Jesson
In 2012, North Carolina’s mechanic’s lien statutes were overhauled. One of the biggest changes was the requirement for a lien agent to be appointed on certain jobs. We still frequently receive questions about lien agent requirements and what the consequences of a contractor’s failure to file a “Notice to Lien Agent” actually are.
Lien agents are only required on projects involving improvements to real property valued at over $30,000.00, except that a lien agent does not have to be designated for projects where improvements are being done to an existing single-family residential building, occupied by the owner, even if those improvements are valued over $30,000.00. That exception also applies if the contract is for the construction of accessory buildings where “the use of which is incidental to that residence.” Generally speaking, the appointment of lien agents is more prevalent in commercial construction projects but it is also sometimes necessary to designate a lien agent for residential projects. While designating a lien agent is generally the owner’s responsibility, there is a limited ability for “custom contractors” (as defined by the statute) to designate the lien agent on residential new construction projects as, presumably, custom contractors should be more familiar with these laws than the average home owner.
In order to fully protect its rights as a contractor to pursue a claim of lien on real property, a contractor must file a Notice to Lien Agent within 15 days after it first “furnishes labor or materials to the project.” While failing to file a notice to lien agent within 15 days is not necessarily fatal to any future lien claims, it may limit the contractor’s lien rights should it be necessary to file a lien at a later date. If a contractor fails to file a notice to lien agent and, prior to filing the notice or to filing a claim of lien on real property, the property is sold or otherwise encumbered, the contractor seeking to enforce its lien rights at a later date may have issues doing so. On the other hand, if a contractor fails to file a notice to lien agent and it then becomes necessary to file a lien, the contractor will likely be able to do so if the property has not been sold or otherwise encumbered.
It is important to note that the lien agent does not take place of the owner or upper tier contractor for purposes of service. Any claims of lien on real property or claims of lien on funds should be filed (where necessary) and served on the owner and any necessary contractors and/or suppliers.
It is best practice, in projects where lien agents are appointed, to file the notice of lien agent as soon as possible—even prior to beginning work. There is a portal to provide Notices to Lien Agents on LiensNC.com, but if you have any further questions, the attorneys at Jesson & Rains would be happy to help.
Kelly will be co-hosting a complimentary estate and retirement planning seminar with Joe Roseman, Jr. Managing Partner, who will be talking about retirement, at the Morrison Regional Library.
Sign up today!
*Determine if a TRUST is right for YOU
*Avoid the most common mistakes retirees make with their estate plan
*Reduce future costs and taxes for your FAMILY
*Understand how to avoid letting the NURSING HOME take your house
*Discover powerful retirement and estate strategies you never knew existed
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Written by Danielle Nodar, Associate Attorney
Estate planning can be a daunting process for many people. Whether it is the stress of making decisions that will impact loved ones when we are gone or avoiding thinking about death or incapacity, many people are hesitant to create an estate plan. The confusion and anxiety surrounding this process have lead to some pervasive myths relatied to estate planning, which we have addressed below.
1. My estate is not big enough to require any estate planning.
There is a widespread myth that only the very wealthy need estate plans and that the average person does not have an “estate” to begin with. This is not true! When someone passes away, all of their assets become part of their estate; there is no minimum threshold of assets that make up an estate. Thus, at death, we all have an estate, it just varies in size and complexity based on the amount and types of assets you have. Oftentimes, people with fewer assets have the most issues during probate and could have really used the help of an attorney.
2. Estate Planning only deals with distributing property at my death.
Another myth is that your estate plan only deals with who will inherit your property when you pass away. This is also incorrect! A will also allows you to name people who may serve important roles when you pass away. In a will you will name an Executor to manage your assets and distribute them to the beneficiaries in your will at the time of your death. Without a will, you will not have any control over naming the person to manage you affairs at your death. Additionally, in North Carolina, the only way to name a guardian for your children in the event that both parents pass away while the children are still minors is to name the guardian in a Last Will and Testament. You can also name a trustee who is the money manager for inheriting children until they reach a certain age.
Additionally, estate planning involves planning for incapacity through durable powers of attorney and health care directives. With a durable power of attorney, you can name an agent to make business, legal, and financial decisions on your behalf if you become incapacitated. You can also name an agent to make healthcare decisions for you in the event that you are incapacitated and include specific instructions for them about your healthcare wishes. There is also the advance directive or “living will,” which includes your wishes relating to the withdrawal or withholding of life support if you are incapacitated and suffering from a medical condition where you will not likely recover.
3. If I have a will, I can avoid probate.
Having a will drafted will not always prevent your estate from having to go through probate to pass assets to your loved ones. If you pass away with a will, depending on the circumstances, your executor may have to file your will at the courthouse along with the initial probate application and then must comply with all the requirements of the probate process. This includes providing the court with an inventory of all of your assets at the time of your death, providing notice to any of your potential creditors existing at the time of death, handling creditor claims and paying creditors with estate assets, and making distributions of any remaining assets to your beneficiaries. While there are ways to avoid probate (for example, owning property joint with rights of survivorship, the surviving spouse allowance, and utilizing revocable trusts), sometimes merely having a will is not enough.
4. I do not need a will because my spouse will inherit everything.
In North Carolina, this is oftentimes false. The surviving spouse will remain owner of all joint property or accounts with right of survivorship. Also, every surviving spouse (regardless of the existence of a will) is entitled to a year’s allowance of $60,000 worth of the decedent’s personal property. If there are any other assets, a surviving spouse does not automatically inherit everything according to the North Carolina Intestacy Statute. For example, if you do not have a will and are survived by a spouse and only one child (or grandchildren, if that one child is deceased), the surviving spouse takes ½ of your real property, the first $60,000 of your personal property, and ½ the remaining balance of your personal property while the child inherits the remainder. If you do not have children but are survived by a spouse and parent(s), your spouse will inherit ½ of your real property, the first $100,000 of your personal property, and ½ the remaining balance of your personal property. Your parent(s) will inherit ½ of your real estate and any personal property remaining after the spouse’s share
Thus, without a will, you may be inadvertently leaving your assets to people who do not need them and leave your spouse in need. For example, if your children are minors, you may want your spouse to inherit your full estate to take care of your children.
Overall, all of these options are more complicated and involve more court oversight. It is much easier to create an estate plan with an attorney that ensures that your spouse inherits everything or is adequately taken care of when you pass away. If you or anyone you know have any questions regarding estate planning, please give Jesson & Rains a call.
Each year, the Small Business Administration (SBA) designates the first week in May as the SBA National Small Business Week. The City of Charlotte and its small business resource partners have declared May to be Small Business Month 2019. Charlotte Mayor Vi Lyles announced with an official proclamation that the city will be celebrating all month long!
As part of Charlotte’s Small Business Month, CharlotteBusinessResources.com (CBRBiz.com) will be spotlighting a different small business for each day for the month of May.
CBRBiz.com supports Charlotte’s small business community in partnership with 26 supporting partners. It is designed to connect entrepreneurs with free resources to start and grow a business in Charlotte, and it provides educational, networking, and mentoring services to Charlotte-area business owners. CBRBiz was founded and is funded by the City of Charlotte. It is an excellent resource for minority and veteran business owners.
Did you know that area community colleges have Small Business Centers that offer FREE classes for community member business owners? The classes offered range from how to get your product on store shelves to bookkeeping and designing websites and doing your taxes.
The colleges offer two-hour classroom seminars, as well as on-demand computer seminars (in case you cannot attend an in-person class). Using the link below, you can search your local community college for in-person classes as well as searching the catalog of on-demand courses from any school that you can watch from the comfort of your own home.
Small Business Center Network
Charlotte Mecklenburg Library offers classes for adults ranging from learning computer skills (learning to use Excel, for example) to learning how to apply for grants or file business taxes.
Have you heard of SCORE? SCORE stands for “Service Corps of Retired Executives.” SCORE is a nationwide non-profit with thousands of working and retired business professionals who volunteer to support the success of small businesses. SCORE offers free live and on demand webinars for all things business-related: https://charlotte.score.org/content/take-workshop-249
Not only does SCORE offer webinars, but they offer FREE one-on-one mentoring. The Charlotte chapter has over 75 certified mentors that provide one on one mentoring to business owners and entrepreneurs. Sign up for a mentor here: https://charlotte.score.org/content/find-mentor-282
Kelly was recently featured on CO-Law’s blog!
CoLaw is an as-needed support platform for independent lawyers. CoLaw offers flexible access to office space and law practice management assistance on a month-to-month basis. In a nutshell, CoLaw helps lawyers grow and manage their law practices more efficiently.
North Carolina has a procedure whereby the surviving spouse can claim an “allowance” when their spouse dies, to be satisfied by only the deceased spouse’s singularly owned personal property. Most jointly owned property will automatically become the surviving spouse’s.
The allowance is a superior claim and will be paid out of the deceased spouse’s personal property before any creditors or other claimants are paid. The spousal allowance law applies whether or not the deceased spouse had a will. As of January 2019, the amount of available allowance doubled from $30,000 to $60,000! Only personal property may be used to satisfy the allowance. If a deceased spouse had real estate only in his name, the surviving spouse could not use the spousal allowance to get the real estate and would then have to resort to the probate process.
The benefits of the increased spouse allowance statute are clear. Example: you and your deceased wife own a house jointly and own joint bank accounts, but she had a car in only her name worth $30,000 and a stock account only in her name worth $20,000. She also had a $20,000 Macy’s credit card bill in only her name. You can go up to the courthouse with proof of her death and proof of your marriage, fill out a fairly simple form, pay a small fee, and leave being able to transfer those two items to you directly. There is no need for a costly and time-consuming probate proceeding. Additionally, Macy’s will not be paid.
It is very important to note that a surviving spouse only has one year to file a claim for the allowance. There are no exceptions to this rule. If the deadline had been missed in the above example, the stock would likely have to be sold to pay the Macy’s debt. Also, there is a $5,000 child’s allowance available for children under the age of 18 or certain children over age 18.
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