As the summer comes to an end and we start switching gears, there are some important things to remember for your college student. With the chaos that accompanies getting them back to their college campus, it can be easy to forget about your child's healthcare documents.
It is important to consider asking them to execute healthcare documents naming you agent. Once your child is 18 years old, you may not be able to make medical decisions for them or access medical documents. If you have a child returning to college this Fall, consider giving Jesson & Rains a call to consider your options. It is never too soon to start thinking about being prepared for all possibilities, and you can have peace of mind knowing that you are prepared.
By Kelly Rains Jesson
529 plans are named after IRS Code Section 529. A person can make “gifts” into an investment account that is then used, in the future, by minors or young adults to attend college or a private K-12 school. There are a few benefits. First, the money that goes into the investment account grows and earns interest income that is not taxed when it is withdrawn in the future per the account terms. Theoretically, if a parent started early, they could gift a small amount to a 529 account and have a much larger amount available for their child when the child enters college. Second, the value of the account is not considered part of your taxable estate. A 529 account offers the ability to control what a beneficiary spends the money on instead of gifting it to them directly. Plus, someone can make gifts to a beneficiary via a 529 account when they’re under the age of 18. You wouldn’t want to give a ten-year-old a few thousand dollars!
North Carolina 529 plans allow the owner (also called a “participant”) to designate a successor owner, who will take over the account in the event the primary owner dies or is incapacitated. If the primary owner does not make this designation, North Carolina allows the estate to become the owner. The estate can then transfer to another owner. We typically recommend our clients designate a successor owner so they can have peace of mind that the new owner is someone who they’d want to take over. Give Jesson & Rains a call if you have any questions!
By Attorney Edward Jesson
It happens more often than we would like to see, but sometimes work is complete, a dispute arises, and suddenly it is discovered that the contract that everyone assumed to be in place was not signed. This happens frequently in construction cases (most often seen with contracts between General Contractors and Subcontractors) but the issue can also rear its ugly head in any other contractual setting, especially where independent contractors are involved.
In legal terms, in order for an agreement between two parties to be binding and valid, there needs to be a “meeting of the minds”. Put simply, it needs to be clear that the parties to the contract intended that contract to govern the relationship between them. Most frequently, a signature on a contract signifies each party’s intent to be governed by that contract.
So what happens when, sticking with the construction industry example, a subcontractor performs all work under its subcontract agreement with the general contractor and then a dispute arises and it turns out the contract wasn’t signed?
Generally, when courts are confronted with an unsigned agreement, their default opinion will be that the parties never reached that “meeting of the minds” and therefore they did not intend to be bound by the terms of that contract.
However, this doesn’t mean that no contract between the parties existed and that the party seeking to enforce its rights under the agreement has no recourse. The court will next look to all other evidence which indicates what the agreement was between the parties. For example, if there were multiple drafts of a contract with different terms included, the court may decide that the earlier draft contracts that had parts removed from them at a later date is evidence that those removed contractual terms were not a part of the parties’ agreement.
Courts may also look to whether there was a “contract implied in fact” between the parties. In the general contractor subcontractor example, evidence that the general contractor asked the subcontractor to perform work and the subcontractor did perform that work would certainly be evidence of a “contract implied in fact”. It would be unreasonable for a court to decide that the subcontractor did that work and did not expect to receive any payment for that work. Oral agreements are oftentimes valid. There is no requirement that many types of contracts be in writing. Therefore, if you’re on the other side (someone completed work for you but you didn’t sign the contract), you don’t get a free pass! If you do not pay, you may find yourself on the receiving end of a lawsuit.
In any event, it is important to have a written contract signed by the parties. It sets the expectations of both parties – what they’re supposed to do in exchange for compensation. When it is reduced to writing, there are less evidentiary issues in court. When it is reduced to writing, it is less likely that there will ever be a lawsuit about the terms because a signed contract shows that all parties agreed to the terms.
The attorneys at Jesson & Rains are ready to assist with drafting and review of contracts, and, importantly, assist clients who find themselves in disputes arising from unsigned contracts. Just because you do not have a signed contract, it does not mean you have no rights.
By Associate Attorney Danielle Nodar
If you have ever formed a business through the Secretary of State’s office, you know that you get a lot of junk mail shortly thereafter. Recently, there have been some new schemes targeting North Carolina business owners through the mail. These mailings look like official government documents, and they quote statutes, cite scary penalties, and prompt the business to pay a fee for a certain “required” form.
One misleading mailing comes from the Filing Labor Compliance Department Services (FLCD), a Florida company that sends a “2019 Certificate of Status Request” form. This form implies that all business entities are required to obtain a Certificate of Status and return the form with a $78.00 fee. Another misleading mailing comes from NC Certificate Service, offering a 2019 Certificate of Existence for $74.50.
However, there is no state requirement that each registered business entity obtain an annual Certificate of Existence. A Certificate of Existence is only required if a business does business in another state. The certificate is issued by the North Carolina Secretary of State for a whopping fee of $10.00 online!
Finally, another mailing scheme comes from the Labor Compliance Department, also based out of Florida, and asserts that businesses are required to purchase state and/or federal labor law posters to display at the business address. The scam offers to provide a labor law compliance package for an $83.00 fee. This scam cites scary penalties for failing to display these posters in a visible location at the business. While the posters really may be required depending on the type of business, these posters can be obtained for free online from the North Carolina Department of Labor.
Do not blindly mail in a check when you receive mail like this. Read it carefully. Contact your attorney or the Secretary of State’s office before paying anything.
A few weeks ago, it was reported that three handwritten wills were located in Aretha Franklin’s home months after she died, after it had previously been reported that she died without a will. The 2014 handwritten will was found in between couch cushions as part of a spiral notebook. It’s hard to read. Pages can be seen here: AP News Story
Two 2010 handwritten wills were found locked in a cabinet after the key was discovered. Her attorney filed all three and asked the probate court to determine their validity.
What if this happened in North Carolina? Handwritten wills (also called holographic wills) can be valid in North Carolina. They must be almost entirely in the handwriting of the testator (all of the substance must be in handwritten), signed by the testator, and “found after the testator's death among the testator's valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator's authority, or in the possession or custody of some person [or business] with whom . . . it was deposited by the testator or under the testator's authority for safekeeping.” Finally, it must be clear from the writing that the testator meant for the writing to serve as their Last Will and Testament.
Therefore, it’s unlikely that the 2014 will would be considered valid. It’s part of a spiral notebook found in couch cushions unlike the 2010 versions that were locked up. Also, it’s not clear from the writing that she intended for that document to be her will.
It’s not recommended to handwrite your own will for numerous reasons. First, you’re probably not an attorney – what if you use the wrong language? Forget important legal terminology? Second, it is more difficult to probate. Most typed wills, written by attorneys, are witnessed and notarized. The executor should have little trouble submitting the will to probate. The executor of a handwritten will will have to provide additional proof to the court, causing them stress and possibly costing more money. Finally, handwritten wills are asking to be challenged. If someone claims it is not the testator’s handwriting, handwriting experts will be called in to testify. Your estate could be reduced due to legal fees.
If you’re interested in having a will drafted by a professional, give Jesson & Rains a call!
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.
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