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How Do I Contest A Will In North Carolina?

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In North Carolina, there’s a process to challenge the validity of a will. North Carolina laws are in place to give interested parties the opportunity to question a will. A will challenge, or will caveat, has specific procedures that need to be followed. Here’s what you need to know about how to contest a will in North Carolina:

You must have the standing to challenge the will

Only an interested party may challenge a will. A person with standing is any person who stands to gain or lose from the probate of the will. If you’re a family member who would inherit if the will isn’t valid, you have standing. In addition, any person or entity named in the current will or named in any prior wills also has standing. If you have an interest in the outcome, you can file a caveat to challenge the will.

To challenge a will, you must file your caveat with the clerk of court

Challenging a will in North Carolina begins with filing the will caveat with the clerk of superior court. It’s important to file the caveat with the appropriate clerk and in the right court. The court can dismiss a caveat that isn’t appropriately filed. Once you file the caveat, the other interested parties have a chance to respond and participate in the proceedings.

You must notify all interested parties

It’s up to you to notify all of the other interested parties that you’re contesting the will. You must serve them with a copy of the caveat paperwork. Providing service of the paperwork ensures that all of the parties have the opportunity to access the courts and participate in the proceedings.

There are a few legal grounds to challenge a will

There are only a few grounds to challenge the sufficiency of a will. They include:

Lack of capacity

Lack of capacity means that the person who makes the will doesn’t understand what they’re doing when they make the will. It means that they don’t understand their decisions and the impacts of their decisions on the disposition of their estate. There’s a presumption that a person who makes a will has the capacity to understand the choices they’re making. Even a person with some mental difficulties may understand the situation long enough to make an effective will.

Undue influence

The other common ground for a will challenge is undue influence. To demonstrate undue influence, the person who files the will must show that the will creator was open to influence. They must show that a person with access to the will creator tried to exert influence over them. Finally, the person who challenges the will must show the result of the influence is that the will is different than it may have been without the person’s influence.

To decide if undue influence impacts the result of the will, the jury may consider a number of factors. These factors include:

  • The age of the person who makes the will
  • Physical and mental vulnerabilities of the will creator
  • Whether the beneficiary lives with the will creator
  • If the beneficiary supervises the will creator
  • Attempts by the beneficiary to isolate the will creator
  • Revocations of prior wills
  • Changes from prior wills
  • Bequests to someone without blood ties
  • Disinheriting blood relatives
  • Whether the beneficiary helps create the will

A jury decides the case

It’s up to a jury to decide whether the will represents the wishes of the creator. The parties can’t agree to waive the jury. They also can’t stipulate to any facts. A judge can award summary disposition and dismiss the will challenge if the case is clear, but summary disposition in a will case is very rare.

The burden of proof

The jury decides the case by the greater weight of the evidence. That means they decide if the will more likely than not represents the wishes of the will’s creator. Essentially, the jury sides with the person that they think is more likely to be correct.

You may mediate the case with other interested parties

If you’re a party to a will caveat, you may mediate the case with other interested parties. You can agree on a resolution to the case that follows the terms of the will, or you can settle on different terms that you create with the other parties. Not all will caveats use mediation as a case resolution tool. You have the right to reject mediation and try your case before a jury.

You have three years to bring a will challenge

If you think a will may be invalid, you have only a limited amount of time to challenge it. You have three years from the time that probate begins in the case. If you’re under a disability, a minor or in prison, you have three years from the time your disability ends.

Practically, it’s important to bring your will contest as soon as possible. When you file your will contest, distribution of the estate stops until the contest resolves. If you don’t file your caveat until distribution is underway, you risk the added difficulty of needing to find and retrieve assets that have already been distributed to third parties.

The court may order the estate to pay attorneys fees

A will party may be costly for the estate. In most cases, the court charges the cost of the will caveat to the estate. That means the prevailing party’s award is reduced by the costs of attorney fees to all of the parties involved. If the caveat has no merits, the court can refuse to order payment of attorney fees. In addition, the court may order the person who files the caveat to pay a bond that can cover the costs of the caveat in the event that the caveat has no merits.

Each case is different, and will caveat cases are often complex. An experienced will caveat attorney will be able to help you navigate through all the requirements to get the best outcome for you and your family. For a consultation to learn more about will caveats in North Carolina, call our office today at 919-787-7711 or fill out our contact form.

Planning For An Aging Parent In North Carolina

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Planning for one’s own potential long-term care needs is something few of us do, and typically only when it comes time that either mom or dad can’t live by themselves do we then try and figure out how to handle that dilemma. While there may be no easy choices, it is far better to be proactive and ahead of the curve than try and play catch up after the fact.

Communication is the Key

Since this issue impacts all members of the family across generations, everyone has a strong interest in addressing the specifics. Who initiates the discussion is far less important than the fact it becomes a topic of discussion. A couple of good questions to address are:

  • Have your parents made any long range plans?
  • Are there financial resources available from your parents? How about from you or your siblings?
  • Is staying in their home an option with either daily or live-in care?
  • Can your home accommodate one or both of your parents if necessary?

These are just some of the questions that must be answered, and as indicated, the sooner the better. A threshold issue is understanding the finances involved in elder care.

The Numbers

Since 2004, the Genworth Cost of Care Survey has studied long term planning costs. The most current data for monthly costs of various care options:

  • Home health care – around $4000
  • Adult day care – around $1500
  • Assisted living facility – between $3000 – $4000
  • Nursing home care – between $7000 – $8000

The Options

  • Insurance – It can truly be said of insurance that it is something you need to have but hope to never have to use. For long term care insurance, the earlier a policy is taken out and the healthier the applicant is, the lower the costs. One option to consider is if mom and dad cannot afford the premiums, perhaps the kids can. This is certainly a less expensive option than the monthly out-of-pocket costs as indicated above.
  • Public programs – Unfortunately, Medicare does not offer long term care as part of its program. For those with very limited income and few assets, Medicaid may be an option. For those who have honorably served our country, the Veteran’s Administration has certain benefits available.
  • The Family – Unfortunately, for too many people, the burden of long term care falls on the family. It’s not so much the individuals offering the care don’t want to help, more often it’s the high cost borne by the caregiver. Caregivers often need to reduce their own hours of work or stop altogether, which can have a long range negative impact on their own retirement security.

An estate planning attorney can assist you not only in financial matters involving the disposition of your estate after you pass, but also in establishing and maintaining a high quality of life in your sunset years.

Starting Steps For A North Carolina Business

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Did you know that North Carolina is a great place to start a company? According to Forbes Magazine, North Carolina has the second-lowest startup costs in the country. Are you thinking of starting a new business? Here are some great tips on how to begin the process.

Define Your Idea

You need an idea that best fits your personal needs and interests. In other words, does it make sense to start a business involving sports merchandise when you have no interest or knowledge in sports? Your business also has to represent you and how much time or effort you are willing to put into it.

If you’re looking for a business that is mainly hands-off, you may be interested in looking to be an investor instead.

If you’re not sure where to start, just begin with brainstorming around your interests and needs that you or other people may have around those interests.

Make A Plan

You shouldn’t just start doing business and “wing it.” You need a plan that includes things like sales and marketing, people, finance, and product development. It’s also usually a good idea to have several months’ cash in savings to start a company, if not more, since most businesses take 1-2 years to break even and start paying the owner. 

You also need a reason for the product. Does your merchandise serve a purpose in your community? Do you have enough people interested in your product to legitimize the need for your company?

Business Formation

You need to have enough credibility to launch your company, financially and interest-wise. Several business experts argue that beginning under an “LLC” title is the best way to begin. They are much easier to work with and have some major tax incentives. To start a company, in North Caroline and under the LLC title, costs about $75, give or take.

EIN and Finances

An EIN, or Employment Identification Number, is a number (like a Social Security Number for your business) that you will need to be assigned to do many business financial tasks, such as open bank accounts or credit cards, apply for a line of credit, and more.

You’ll also want to keep business bank accounts separate from personal accounts, for ease of bookkeeping as well as to keep your personal assets as protected as possible in the case of a lawsuit.

Permits and Insurance

You may need permits, depending on the type of your business.

Another way of protecting your business is with the proper insurance. You will most likely need Worker’s Comp (once you hit at least 3 employees), General Liability, and Professional Liability, as well as others. Your company might need others, depending on nature. 

FYI: You will want to consult an insurance professional and business formation attorney during this process. You may need additional permits and licenses, especially if you intend to hire more than 3 people on your staff. Once again, this depends on the nature of your business.

Wrapping Up

Now is a better time than ever to start a new business in North Carolina. With the proper planning and a great business attorney at your side, you can set yourself up for success today and into the future with your new venture.

Five Common Estate Planning Mistakes To Avoid

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challenge a will in nc

If you want to be able to have control over what happens to your assets once you die, it’s highly recommended that you create some sort of estate plan, which can be done with the help of an estate planning lawyer. While creating an estate plan can vary in complexity depending on your situation, there are a range of mistakes that you can easily make if you create one without the assistance of an attorney.

What Is Estate Planning?

Estate planning is the process of making plans for how your assets are going to be handled when you die. The estate that you have extends to every kind of property that you own. The types of property that can be a part of your estate include savings accounts, investments, cash, cars, clothes, homes, and retirement accounts. The main objectives of estate planning include making sure that the majority of your estate is given to your beneficiaries, that guardians are assigned for any minor children, and that you pay the lowest amount of taxes on the estate. 

The main components of an estate plan include a will and a trust. A will is a type of legal document that details what happens to your property once you die. When creating a will, you can denote how your property is spread to your beneficiaries. For instance, if you have two children, you might consider transferring your home to your children in a 50/50 ownership split. A trust is a type of arrangement wherein a third-party trustee manages your estate on behalf of any beneficiaries.

1. Not Planning for Unexpected Events

The most common mistake that people make when creating an estate plan is forgetting to plan for the unexpected. Maybe there’s a sudden change to your assets or one of your children gets divorced. These big life changes may require you to make alterations to your estate plan. It’s important that you update your estate plan whenever these changes occur. 

However, you might also want to consider placing your assets in a trust, which will allow you to control when your assets are distributed and to whom they are distributed to. You don’t have this level of control with a will. With a trust, you could set the ages at which your children receive assets from your estate. However, you could also deem that these assets aren’t provided to your children if they are a danger to themselves, which is a possibility that you need to take into account because of potential unseen issues such as drug addiction or other issues that you can’t fully plan for. 

2. Not Planning for Potential Death of Beneficiary

It’s also important that you plan for the potential death of a beneficiary. Many people make the mistake of believing that their beneficiaries will ultimately live long enough to obtain the assets from their estate plans. If you have two beneficiaries and one of them dies, you might want to make a note of where the money will go. You could have the assets go to the immediate family of the deceased beneficiary or to the other beneficiary. If you don’t make a note of this in your estate plan, there will likely be complications that the remaining beneficiary will need to handle. 

3. Other Beneficiary Problems

There are a range of additional beneficiary problems that you should keep in mind. If you don’t name a contingent beneficiary for your insurance policies and retirement accounts, your beneficiaries may not be able to benefit from a stretch IRA tax break. Some individuals also forget to remove an ex-spouse from an IRA once they become remarried, which can create an array of issues in the future. While your spouse will automatically become your beneficiary for a retirement account on the day that you’re married, this isn’t the case with an IRA. 

4. Not Coordinating Retirement Plans and Trusts

Many individuals will place a living trust or other type of trust as the beneficiary of their various retirement plans. While this can be advantageous in many situations, placing certain types of trusts as beneficiaries of an IRA can actually increase taxes. A trust that is the beneficiary of your retirement account must have specific language in it that marks it as a see-through trust, which should get rid of any tax issues. 

5. Not Updating Your Powers of Attorney

A power of attorney is a kind of document that denotes another individual as being able to act on your behalf when you’re no longer able to do so. The actions that a POA takes care of include handling your assets as well as a wide range of other personal, business, and financial matters.

It’s recommended to name a power of attorney for your financial decisions and a separate power of attorney for your medical decisions. Many people forget to update their powers of attorney, which can lead to numerous complications if you unexpectedly fall ill or are no longer able to make your own decisions.

If there’s an issue with your estate plan or you’re having difficulties understanding an aspect of your will, contact Wilson Ratledge today so that we can provide you with the legal assistance that you need.

How To Start A Business In North Carolina

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Whether you’re starting a new business and wish to incorporate it or are looking to convert your general partnership or sole proprietorship into a corporation, incorporating a business takes only a few short steps along with a small fee.

Before you get started, it’s essential that you understand everything that goes into incorporating a business in North Carolina, which should help you avoid making any costly mistakes. 

Select a Name for Your Corporation

The first step of incorporating a business in North Carolina is to select a name for your corporation. The name that you select must be original, which means that it can’t be used by any other business in the state. It can sometimes be difficult to find the right name for your business, which is due mainly to very similar names being rejected as well.

If you find that the name you prefer has been reserved but has not yet been used, it’s possible that you could transfer the name over to your business once an agreement has been made with the current owner. 

Keep in mind that every corporation must include an ending like “corp”, “inc”, or “incorporation”. Other corporate endings that you can choose from include “limited”, “corporation”, or “company”. These words aren’t considered when the Secretary of State is deciding if your name is too similar to other business names in NC.

The name that you choose cannot imply or state that the company is going to be used for some other purpose than the one that is currently indicated. Some of the words that you’re unable to use unless you receive legal qualification to do so include wholesale, realtor, architect, architectural, bank, banker, insurance, mutual, certified public accountant, surveyor, or engineer.

Once you’ve found a name that you like, you’ll have the option to reserve if for a small fee if you are still going to wait a couple months before fully incorporating the business. 

File the Proper Forms

Once the company name of your choice has been verified, Articles of Incorporation will be filed with the North Carolina Secretary of State. There’s a substantial amount of information that must be included in these forms in order for your application to be accepted. You’ll need to list your exact corporate name, which includes all of the necessary abbreviations and proper punctuation.

If you have any classes of stock with your business, the total number of shares for each stock class will need to be listed. Any limitations or preferences regarding this stock must also be included. 

The street address, county, and name of the registered agent will need to be provided as well, which can be the same address as your company’s. This address is where all of the official correspondence from the state will be delivered.

In order to file Articles of Incorporation, there must be one or more incorporators. The address and name of each incorporator should be listed on the forms. If you wish to set some bylaws for your corporation, these can be included as optional provisions on the document. In order for your filing to be accepted, a standard cover sheet must also be placed on the document.

Pay the Requisite Filing Fee

Currently, the state filing fee that you will be required to pay to incorporate your business is $125. It may take around 8-15 days for your business to become incorporated in North Carolina. However, it’s possible to pay an additional fee to expedite the process. If you want a decision to be made within 24 hours, you can pay an additional fee of $100. An extra fee of $200 can be paid if you want them to provide you with a same-day response.

Once the documents have been filed and the fees have been paid, all that’s left for you to do is to wait. You are not allowed to use the business name that you’ve chosen until the document is approved by the North Carolina Secretary of State. 

Our North Carolina Business Lawyers Can Help

While incorporating a business in North Carolina is a relatively straightforward process, there are a range of mistakes that you could make if you don’t know exactly what you’re doing, which is why it’s highly recommended that you retain the services of an experienced business attorney.

The team at Wilson Ratledge will be able to help you fill out all the paperwork and answer any questions that you might have about the process. If you find that the response to your application is taking longer than you expected, we can find out what’s causing the delay. 

If you require assistance with incorporating your business in North Carolina, call us today to schedule your consultation.

What You Should Know About North Carolina’s Intestacy Laws

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In the state of North Carolina, dying with no will is known as dying intestate. If you pass away without a will, the state’s probate court will use the law to divide your assets and property.

Though many people wait until it’s too late, dying with no will can spare your family additional stress during a trying time. With help from an estate planning lawyer, you can make informed decisions and have the reassurance that your children and your possessions will end up in good hands.

Dying Without a Will: What Happens?

A will is a document that outlines how a person wants his or her assets distributed after passing on. Wills are the result of careful planning and intense discussion, and they should reflect your values and interests. If you pass away with no will, those decisions are left up to the courts. The probate court will choose an administrator to handle your estate, and that person may not be someone you know.

The estate administrator and the probate court will apply North Carolina’s intestate succession laws to decide matters of asset distribution. The courts will also determine custody of your children, and there’s little chance that a court-appointed administrator would do things as you would prefer.

When the State’s Laws of Intestacy Apply

To ensure the validity of a will, the document must be signed in the presence of two unbiased individuals. An oral will is only validated if it’s made during a person’s deathbed sickness and in others’ presence, and these wills only cover personal property. If a relative promised you property or certain possessions but they never made a will, you won’t have a claim against their estate. Instead, the state’s intestacy statutes determine who gets what.

Some property types, such as retirement and joint bank accounts, have designated beneficiaries and fall outside the estate. However, most other assets pass under the will or the intestacy law.

Who Inherits Your Property if There’s No Will

North Carolina’s probate court will follow the state’s intestate succession laws to decide who gets your personal property and real estate. Probate is the legal process by which a deceased person’s property is transferred to their heirs, and the division of that property depends on if you have surviving parents, children, a spouse, or other relatives.

Determining Next of Kin

If you have minor children but have no spouse, your children get everything, with each child’s share depending on how many children you’ve had. If you have a spouse but no living parents, children, or grandchildren, the spouse gets everything. However, if you pass on and leave a spouse and a child, each gets a half interest. If a deceased person is survived by his or her spouse and multiple children, the spouse gets a one-third interest.

With personal belongings such as investments, antiques, and jewelry, state law holds that the spouse will get everything if the value is under $60,000, no matter if there are surviving parents, children, or grandchildren. If the property’s value exceeds $60,000 and there’s a surviving child and a spouse, the spouse will get $60,000 plus half the remaining value.

As North Carolina’s intestate succession laws are quite complicated, it’s important to keep your family from dealing with the legal complexities of intestacy by working with a skilled estate planning lawyer and preparing a will. With one of our attorney’s help, you’ll retain control of your estate and it will be distributed as you wish.

Things to Include in a Will

Your will should include beneficiaries’ names, including individuals and charities. It should also choose an executor, or someone who will enforce the will’s terms, and it should also select a backup executor. The will should explain who will look after your children and your other dependents, and it should outline the distribution of heirlooms, assets, and valuables.

Finally, you can designate someone to care for your pets after your passing. Some people choose to leave money for their pets’ care. Retirement accounts, POD (payable on death) accounts, and life insurance policies don’t have to be mentioned in the will, as beneficiaries have already been chosen.

Is It Necessary to Hire a Lawyer to Prepare a Will?

Though North Carolina’s laws don’t require you to hire legal help, an estate planning lawyer will offer guidance that reduces estate taxes, ensures that your will complies with state law, and properly validates the document.

If you need help with creating a will to help determine your legacy, contact Wilson Ratledge today for a consultation.