By Associate Attorney Danielle Nodar
You may know that Jesson & Rains, PLLC offers a variety of legal services including estate planning, probate administration, business law and litigation, and construction contracts and litigation. But you may not know that they are also licensed in other states as well. Kelly Jesson, Edward Jesson, and Danielle Nodar are licensed to practice law in both North Carolina and Florida. Katheryn Currie is licensed to practice law in both North Carolina and Alabama. Hopefully, Ed and Katheryn will be licensed in South Carolina by the end of the year! By maintaining our licensure and good standing in multiple states, we are able to provide legal services to our clients that may reside in North Carolina but have businesses or real estate located in another state. For example, if you own real estate in Florida and need to retitle it, our attorneys can draft and record your Florida real estate deed. As our practice has become more virtual over the last few years, we are also able to assist our clients who reside out-of-state with drafting documents that must be from the client’s resident state, such as wills and powers of attorneys. If you have questions about how we can assist you with your legal needs in or outside of North Carolina, Florida, or Alabama, please let us know!
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By Associate Attorney Katy Currie
Recently, the news has been filled with the fight over Lisa Marie Presley’s trust after her sudden and unexpected death in January 2023. The issue is who should serve as trustee, and the reason why this is not clear is because, in 2016, Lisa Marie Presley amended her trust. This amendment removed her mother, Priscilla Presley, and Barry Siegel, the Presley family's business manager, as co-trustees and named her children, Riley and Benjamin Keough, as co-trustees instead. Benjamin passed in 2020, leaving Riley as the sole trustee. Priscilla Presley argues that the 2016 amendment is invalid because she never received a copy of the amendment. In North Carolina, the creator of a revocable trust may revoke or amend the trust so long as they follow the procedure as it is stated in the trust document itself. If the trust states, for example, that the revocation document must be notarized, then it must be notarized. Under North Carolina law, if the method for amending the revocable trust is not stated within the trust document itself, the creator of the trust must amend their trust (1) with a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or (2) by any other written document delivered to the trustee, manifesting clear and convincing evidence of their intent to amend or revoke the trust. So, in Lisa Marie Presley’s case, if she had lived in North Carolina, her mother would have a legitimate argument that the amendment was invalid if Priscilla Pressley was serving as the trustee in 2016. Other estate planning documents must be amended or revoked carefully. Similar to a trust, if an agent is currently serving under a power of attorney and the principal amends or revokes it, the principal must serve the agent with a copy of the revocation. If a power of attorney document is recorded at the county Register of Deeds, a revocation of that document must also be recorded to put the world on notice that it is no longer valid. Wills and health care documents are automatically revoked when a new document is executed; however, it is best practice to let anyone and everyone who has a copy of the document know and ask them to destroy it. Even though a later executed will revokes a prior will, if the prior will is filed or probated at the courthouse mistakenly after someone passes away, it is a lot of work for the executor to undo. The death of a family member can, unfortunately, bring out the ugly side of some people. To ensure that your wishes are followed, you must carefully comply with the law when it comes to amending or revoking your documents. If you have additional questions or are in need of assistance, reach out to Jesson & Rains! By Associate Attorney Katy Currie
Valentine’s Day is a holiday to celebrate the endless love we have for the loves of our life. What better present to give your Valentine this year than ensuring your estate planning is done? There are many important aspects of sitting down and planning for your future through your estate planning documents, and unfortunately, there are countless issues that could arise without proper estate planning. Without a will you lose the control you have over who inherits what when you pass away, and this could have huge implications on your loved ones. You are deemed to have died “intestate” if you die without a will. North Carolina has an Intestate Succession Act which is the default law that kicks in if you should pass away without a will. It names which of your surviving family members are considered your legal heirs in North Carolina. The most common misconception surrounding intestate succession is that your spouse will inherit everything if you pass away without a will. This is not always the case if you have probate property and are survived by children or parents in addition to a spouse. For example, if you do not have a will and are survived by a spouse and one child (or grandchildren if that child is deceased), or a spouse and a living parent if you have no children or grandchildren, in addition to receiving the $60,000 spousal allowance, your surviving spouse takes the first $60,000 of your personal property, ½ of your real property, and ½ of whatever remains of your personal property while the child/grandchildren/parent inherits the remainder. If you are survived by multiple children or grandchildren, that number is cut to 1/3. Additionally, in North Carolina, a will is the only way to name a guardian for your minor children in the event both parents pass away. You can also create a testamentary trust within your will, which will name a trustee who can be the money manager for inheriting children until they reach a certain age (later than the default age of 18). So, while enjoying a nice romantic dinner to celebrate and show your love for your Valentine, it is also an opportunity to discuss planning for your future while you have some alone, intimate time together. If you approach the conversation with care and thoughtfulness, it could help you break the ice for those difficult, but important, decisions for your estate plan which will have a positive impact on your Valentine for years to come. If you would like to take the next step and work on your estate plan, give Jesson & Rains a call! 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 2023 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 2023! 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. By Attorney Kelly Jesson
National Estate Planning Awareness Week was adopted in 2008 to help the public understand what estate planning is and why it is important for all people, not just the uber-rich. An “estate” does not necessarily mean something like the Biltmore Estate. Everyone has an estate, even small or insolvent estates. Estate planning is more than money – 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 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 we age and 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. National Estate Planning Awareness Week is a great time for you take CONTROL! 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. 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. |
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