Wilson Ratledge is pleased to announce that on Wednesday, March 29, 2017, Jamie Ratledge and Kristine Prati will be presenting the Case Law Update at the North Carolina Association of Self-Insurers Conference in Wilmington, North Carolina. Every year, the attorneys of Wilson Ratledge participate in the Self-Insurers Conference, and have always found the discussions to be very enlightening and beneficial to the unique defenses for self-insured employers. More information about the conference can be found at http://ncselfinsurers.com/index.html.
Does a Will have to be Recorded?
I’m trying to dedicate a decent amount of this blog to common questions that our Clients have when they meet with us, since they are likely questions many folks have. One of those questions relates to “recording the will” and often comes in one of these forms:
“Are you going to record the will?”
“Mom [who is alive] has a will, but it was recorded by the lawyer that did it.”
“Do I have to record the will with the Register of Deeds?”
A will does not have to be “recorded” to be valid while a person is living. The only time a will needs to be “recorded” is following the death of the person that created the will, at which point the Will may need to be filed with the Clerk to start the probate process. Until that time, however, provided that the will was properly executed and witnessed, the original will simply needs to be kept in a safe place.
Folks that talk about wills being recorded aren’t incorrect, however. The Clerk of Superior Court in each county has a depository for original wills. For a small fee, any person may take their original will to the Clerk, and ask that it be deposited with the Clerk for safekeeping. If this has been done, the Clerk will give the person depositing a will a receipt in exchange for the will. That receipt will outline whose will has been deposited, the date on which it was deposited, and the County where it was deposited. Under the statute, once the will has been deposited, the only people that may access it while the person who created the will (the “Testator”) is living are the Testator, their duly-authorized agent, or their attorney. This isn’t technically “recording” the Will, but it is deposited somewhere
Some attorneys may do this as a matter of course. Clients are always free to do this as well. I normally advise clients that it is available, but is not required. So, to answer the question, “does a will have to be recorded”, the answer is “it depends.”
Celebrity Estate Planning
Articles detailing the “failings” of celebrity estate plans are some of the more common “click-baitish” news items you’ll see related to estate planning. The one I saw today related to Lou Reed, his 34-page will, and the fact that he should have done a revocable trust. The article can be found here.
I bring this up for a few reasons:
- (shamless plug) I welcome all celebrities that would like me to handle their estate planning. (/shameless plug)
- Revocable trusts are amazing and affordable estate planning tools. Admittedly, any revocable trust drafted for the estate of someone like Lou Reed wouldn’t be run of the mill, and would likely have made his 34-page will look like a blog post, but the importance of one can’t really be overstated. If you have an estate that you’d like to keep private, or have real property in multiple states, or would like to provide for family members (like Mr. Reed wanted to provide for his elderly mother), a revocable trust can make the administration of your estate much easier. BUT:
- Just because someone does a will instead of a trust doesn’t mean their estate plan is bad, or incomplete. It is quite possible that Mr. Reed sat down with his estate planning attorney, and the attorney began discussing trusts, and Mr. Reed threw up his hands and said “I’m not interested in trusts — I just want to do a will.” To which the attorney most likely protested, but at the end of the day, it’s the client’s decision. And if Lou Reed only wanted a will, that’s the end of it. It’s much better than doing nothing at all and leaving it to the laws of the State of New York. His wishes were met through the will. Was it the cleanest or best method? Not in my opinion. But just because you don’t do a trust doesn’t mean your estate planning was awful. The key is having a plan, and that’s something we can help with.
Could competency litigation affect you?
With the increase in lifespan and general health, we are also seeing an increase in the amount of competency lawsuits filed by nervous heirs. Generally, if a challenge arises to wills or trusts, it happens after the death of a person. However, as lifespans trend upwards, family members and others are looking to lock in their inheritances prior to death.
Recently, this has started to play out in the case of Sumner Redstone, the 92 year old controlling shareholder of Viacom and CBS. After he removed his longtime companion, Manuela Herzer, as his healthcare agent and kicked her out of his mansion, she sued to challenge his competency and the two are currently in settlement talks.
Dementia is the underlying driver in many of the cases, with over 5.3 million Americans over 65 living with the disease. That number is expected to rise in upcoming years, according to the Alzheimer’s Association.
Assessing someone’s competency in court is still a very inexact science, as there are a number of complex laws and inconsistent standards that courts are forced to wrangle with. While no uniform test exists, courts have used such tests as asking patients to count backwards from 100 by sevens, draw a clock showing a certain time, and name as many words as possible starting with a certain letter in the past.
Planning ahead and having good representation in the formation and defense of your estate and trust matters is a big first step in making sure you and your legacy are protected. If we can help, call our office today at 919-787-7711 or fill out the form on the side of this page to speak with one of our attorneys.
Kristine L. Prati Defends Appeal To Full Commission
Kristine L. Prati successfully defended an appeal brought by the employee to the Full Commission requesting reinstatement of indemnity benefits. In the Opinion and Award filed on August 15, 2016, the Full Commission agreed with the prior ruling of the Deputy Commissioner and refused to award ongoing temporary total disability benefits as the employee failed to prove that he was disabled.
Kristine Prati Successfully Defends Two Matters Before The Full Commission
Kristine L. Prati of Wilson Ratledge has successfully defended two matters before the Full Commission. In the first matter, the plaintiff appealed the deputy commissioner’s denial of indemnity benefits and compensability of a newly diagnosed occupational disease to the Full Commission. In an Opinion and Award filed on April 22, 2016, the Full Commission upheld the Deputy Commissioner’s determination. Of significance, the Full Commission concluded that the Parsons and Perez presumptions were not applicable to the case, as a prior Consent Opinion and Award with one of the three defendants only accepted compensability of bilateral carpal tunnel syndrome, and not the newly diagnosed occupational disease of flexor carpi radialis tendonitis. Instead, the Full Commission concluded that it was Plaintiff’s burden of proving that the newly diagnosed occupational disease was compensable.
Upon review of the evidence, the Full Commission determined: (1) the plaintiff failed to prove that her employment with any of the named employers placed her at an increased risk of contracting the newly diagnosed occupational disease; (2) the plaintiff failed to prove that her employment with any of the named defendants caused her newly diagnosed occupational disease; and (3) the plaintiff was not entitled to indemnity benefits, as her newly diagnosed occupational disease was the cause of her inability to work, not her compensable carpal tunnel syndrome condition.
In the second matter, the plaintiff appealed the Deputy Commissioner’s full denial of the claim to the Full Commission. In an Opinion and Award filed on May 2, 2016, the Full Commission upheld the Deputy Commissioner’s determination, agreeing that Plaintiff was engaged in her normal work routine at the time of the alleged accident and failed to describe an unlooked for, untoward, or unexpected event that occurred on the alleged date of injury.