We are often asked by potential clients why they should have a will drafted if they do not have a lot of assets or if they intend for their spouse to inherit everything. Below are the top five reasons:
1. To ensure the proper people inherit your property. If you do not have a will, depending on your particular circumstances, your spouse may not inherit everything under North Carolina intestacy laws. Step-children will not inherit under the law.
2. To name an executor. If no executor is named in the will, a friend or family member will have to volunteer and apply to the court. If someone has a higher degree of kinship than the prospective executor, they will be expected to sign a waiver of their right to serve as executor (i.e., creating more paperwork for your loved ones or additional attorney’s fees). For example, if your grandson is an attorney and he wants to, and is better suited to, serve as the executor, your daughter would have to fill out a form renouncing her right to serve because she is a higher degree of kinship than your grandson.
3. To waive bond for the executor. This is very important, because we have actually seen this be prohibitive to prospective executors before. In North Carolina, an executor has to pay a bond unless (1) it is waived in a will or (2) the heirs all sign a document waiving the requirement (again, more paperwork for your loved ones). Without a will, if there are minors or incompetent heirs, they cannot consent, and the bond will be required. Without a will, if the prospective executor is not a North Carolina resident, the court will require a bond, regardless of waivers.
A surety bond company will pay the bond to the court, and all the executor has to do is pay a premium out of the estate. However, the executor has to qualify by filling out an application and having a credit check completed. We have seen cases where the executor did not qualify due to their financial situation. We have seen cases where there were minor heirs who could not consent to waive the bond and the executor was out of state. All of this could be avoided by a will.
4. To give the executor powers in the will beyond those granted by law. In North Carolina, if you die without a will, your executor may have to apply to the court for permission to do certain things. For example, the executor may need to sell some of your property to pay estate debts. The petition can be time consuming. It can result in costs almost three times as high as a simple probate. With a will, however, you can stipulate that you are giving your executor the power to do certain acts without getting the court’s permission. Again, this is saving your loved ones a lot of time and their potential inheritance.
5. To name a guardian over minor children, if any. When appointing a guardian for a minor, the court will give preference and priority to the person named as guardian in a will. Unless
you are stricken with a terminal illness, the only way to name a guardian for your children in North Carolina is to do so in a will.
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