By Associate Attorney Danielle Nodar
In 2015, the Supreme Court's decision in Obergefell v. Hodges recognized the constitutional right to marriage extended to unions between same-sex couples. This entitled married same-sex couples to the same benefits and protections under the law as heterosexual couples. However, the Supreme Court’s recent decision overturning Roe v. Wade included a concurring opinion which hinted at the possibility that the Supreme Court may revisit the decision in Obergefell. The threat to overturn the right to same-sex marriage has sweeping consequences in areas relating to healthcare, financial decision-making, and inheritance.
The below information also applies to men and women who are in committed relationships but choose not to marry. North Carolina does not recognize common law marriage.
A person can appoint a Healthcare Power of Attorney designating an agent to receive medical information and make medical decisions on their behalf if the person becomes incapacitated. Without a Healthcare Power of Attorney appointing your preferred agent, North Carolina statutes dictate who will serve as your agent based on their degree of kinship. This hierarchy allows for most spouses to serve as agent for each other, but unmarried adults without the document must rely on a majority of their available parents and adult children to make such decisions jointly. However, if you have a Healthcare Power of Attorney naming your partner as your agent, then the document controls, regardless of whether the Supreme Court overturns the protections of same-sex marriage.
Another area of concern is who will inherit assets after death. In North Carolina, if a person dies without a Last Will and Testament, the state’s intestacy laws govern how probate property (all of the assets that a person owns in their individual name and assets that do not pass via beneficiary designations) are distributed at death. A spouse is given automatic rights and is entitled to at least a percentage of your estate. Obviously, if you are not legally married in the eyes of the law, your partner has no automatic rights, so a will is crucial to have to prevent assets from being distributed to people with whom you do not have a close relationship or to family that does not need your assets. A Last Will and Testament disposing of property will not be impacted should same-sex marriage be overturned. For more information about how property is distributed in North Carolina if you do not have a will, please see our previous blog: What Happens If You Die Without A Will in NC?
Finally, a comprehensive estate plan will allow you to provide for your spouse or partner with non-probate assets not commonly governed by the intestate succession laws, such as life insurance, retirement accounts, jointly owned property with rights of survivorship, securities with named beneficiaries, and Pay on Death or Transfer on Death accounts. By making sure that your partner is named as the beneficiary on these accounts, they will automatically be distributed to the named beneficiary regardless of marital status.
While we cannot anticipate how laws may change in the future, we can assist you with making sure you and your loved ones are protected and provided for through your estate plan. Please call Jesson & Rains for help in crafting an estate plan that works for your family.
By Tony Cline
On July 8, Governor Roy Cooper signed HB 776 into law. This bill creates a new Remote Online Notarization procedure that go into effect on July 1, 2023. Unfortunately, the details of this procedure are still yet to be determined, but in the meantime, HB 776 also reinstated the previous Temporary Emergency Video Notarization (TEVN) authorization that was initially instituted during the COVID-19 pandemic to allow for remote, safe notarization procedures. This reinstatement is effective until June 30, 2023, when the new law kicks in.
The TEVN authorization allows notaries to remotely notarize several types of documents over videoconferencing platforms. The requirements for these video notarizations are:
While video notarizations are not available for most types of estate planning documents, this new law will allow Jesson & Rains to remotely notarize other types of legal documents. Please do not hesitate to contact us with any questions and for legal assistance.
By Tony Cline
We say this over and over again: everyone needs a will to direct who gets their property when they die and avoid the default inheritance laws of this state. But the truth is, for some people, dying without a will and having their assets go to their “intestate heirs” is okay by them. However, in a country where families are having fewer children, and people are making the decision to cohabitate without getting married, the number of people who will leave behind no intestate heirs will only increase in the future.
If you die without a will and with no intestate heirs, your assets will “escheat” to the state, meaning that all of your property, real, personal, and intangible, will become the property of the state of North Carolina.
If you have no intestate heirs and do not want the state to take your assets, you must have a will. Even a simple will can prevent escheat by naming the desired recipients for your property. Oftentimes, people without intestate heirs will choose a charity, which they prefer over the government. Even if you currently have intestate heirs, there is no guarantee they will survive you, so naming backup beneficiaries can help prevent escheat. If you need assistance with drafting a will, call Jesson & Rains PLLC for assistance.
By Meg Abney
Cryptocurrencies like Bitcoin have gained popularity with investors for years, and around 16% of Americans now report that they have invested in or traded cryptocurrency (crypto). Most of these cryptocurrencies use decentralized networks based on blockchain technology—essentially a ledger that is enforced by a large network of computers.
However, the decentralization that makes crypto so popular also means that failure to plan for death or incapacity can prevent your loved ones from accessing your digital assets. Taking advantage of the blockchain now shouldn’t mean blocking loved ones from inheritance in the future. Read on for some estate-planning tips to help protect your assets.
What happens to my crypto when I die or become incapacitated?
Like funds in a bank account, cryptocurrency remains wherever it was stored, usually in a digital wallet or with a third-party holder. But unlike a bank account, your executor or agent under a Power of Attorney cannot simply request access to these funds upon your death or incapacity. Instead, you will need a method to provide your executor or agent with your keys and seed phrases. Failure to do so could mean that your loved ones never see these funds.
Can I just leave my crypto in a will?
Yes, but your executor will still need to gain access to it, and remember that your will becomes public record, so you should not include any sensitive information regarding your cryptocurrency. A simple way to communicate this information is by drafting a separate “access plan” that you keep with your will that describes your digital wallets, passwords, keys, and seed phrases.
What is the best way to plan for the future of my crypto?
While everyone’s situation is different, establishing a living trust is one of the best ways to ensure that your digital assets are not lost after your death. Some distinct advantages of establishing a trust for your cryptocurrency include:
With a living trust, you continue to maintain control over your cryptocurrency during your lifetime. After death, your successor trustee administers your trust according to your instructions. Setting up a trust involving cryptocurrency can be complicated, so it is best to consult with an experienced estate planning attorney. Please call Jesson & Rains if you have questions.
By Attorney Kelly Jesson & Meg Abney
Most people are aware that 529 plans are a way to intelligently save for minor’s education with pre-tax dollars. We use the word “minor” because money can be set aside for any beneficiary, not just your child, to use on education. This article contains more details on these accounts so you can determine whether these plans are right for you.
What can 529 funds be spent on?
What can 529 funds not be spent on?
Can a 529 plan affect the ability to get financial aid/needs-based scholarships?
Yes. If the student or parent owns the 529 plan, on the FAFSA form, it counts as an asset. If a grandparent owns the 529 plan, it is not reported on the first year, but if money from the plan is used to pay for the student’s education, it must be reported as “untaxed income to the student” which may affect the ability to get aid in future years.
What happens if the beneficiary does not need the money?
When money is contributed to a 529 Plan, the account owner retains control of the money in the account, even when the beneficiary is no longer a minor. There is no expiration date on the account, and there is no age limit by which funds must be withdrawn. Withdrawals for non-authorized expenses are penalized and taxed, similar to early withdrawals from a retirement account. 529 plans cannot have multiple beneficiaries at the same time, but they can be split into two in the event you want to make distributions to more than one beneficiary.
If the account owner dies, who decides what happens to the account how the funds are to be spent?
It depends on the terms of the particular 529 plan. Sometimes the terms of a 529 plan will provide that the beneficiary becomes the new owner of the account upon the owner's death. However, this is not common practice.
Usually, the enrollment application for a 529 plan asks the owner to name a successor owner. This person becomes the new owner and even has the ability to change the account's beneficiary and make nonqualified withdrawals. For more control, it is better to name a trustee as the successor owner since the actions of the trustee are bound by the terms of the trust.
If no successor is listed, and the account holder dies, the former owner’s executor will become the new account holder. The executor will usually have the same powers over the account as the original owner.
By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2022 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning.
Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate.
There is no reason to wait to do planning, and as the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents.
Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away.
We want to help you take CONTROL in 2022! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.
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