Your will serves several very important purposes.  It lets you decide who gets your property—everything from jewelry, cars and real estate to your pets—and enables you to name a guardian of your choosing for your children.  A will also allows you to appoint an executor who will administer your estate and carry out your wishes once you are gone.

Read on for more information about important issues involving wills and probate:

The benefits of having a will

Taking the time to create a will is a kind and generous service to your family and friends.  It also ensures that the wealth and property you spent your lifetime building is passed on in the manner you choose.  Having a will in place when you die can—

  • Make things easier on your family and friends
  • Allow the details of your estate to be worked out quickly and easily—Without a will, the state appoints an administrator to divide your assets.  In addition to a longer and more complicated process in Probate Court, this can also result in more of your estate going towards administrative fees.
  • Leave your family with more money
  • Together with a properly prepared estate plan, significantly cut down on the estate taxes and administrative fees payable out of your estate, leaving more money for your family, friends or favorite charities
  • Ensure that your heirlooms, keepsakes and collectibles stay in the family
  • Protect your children in your absence

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Problems associated with drafting your own will

Every person has the legal right to draft and execute his or her own will.  However, do-it-yourself wills often create problems:

  • Estate laws vary from state to state, making it difficult for any single book, form or software program to be as comprehensive as may be needed.
  • Many words have special meaning in the law that may not be obvious to a non-lawyer.  If you are not certain how specific state laws affect the wording in a will, your will may have consequences you never intended.
  • If your will is not drafted correctly, it could significantly increase the administrative expenses or fail to be effective in carrying out your wishes.

An attorney can help make sure that your will and estate plan accurately reflect your intentions.  Note that although you may draft your own will, it is illegal for a non-attorney to draft someone else's will.

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Your will and the effect of separation and divorce

Until a final decree of divorce has been entered, each spouse retains certain rights to the other spouse's property, unless the parties have entered into a separation agreement settling those rights or the court has otherwise terminated those rights.  The law in North Carolina requires that a couple be separated for at least one year and a day before filing for a divorce.  During that one-year waiting period, or for so long as you remain legally married, your soon to be ex-spouse may inherit all or a portion of your property in the event of your death.  If you are contemplating divorce, ask your attorney about what you can do to protect your property in the event you die before the final decree of divorce has been entered.

Likewise, divorce between two parties occurring after a will has been executed does not invalidate the will itself, but it may invalidate all provisions in the will that apply to the former spouse.  Meet with an attorney to develop and execute an estate plan that will ensure your wishes are honored.

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Dying without a will

Some people are surprised by the rules in the North Carolina laws of Intestate Succession for calculating the required division of property and distribution to beneficiaries if there is no will:

  • If the deceased had no children or lineal descendants and no parent surviving, the surviving spouse would receive 100 percent of the deceased's real property and 100 percent of the deceased's personal property.
  • If the deceased had no children or lineal descendants and one parent surviving, the surviving spouse would receive 50 percent of the deceased's real property, the first $50,000 and 50 percent of the balance of the deceased's personal property.
  • If the deceased had one surviving child or direct descendant, the surviving spouse would receive 50 percent of the deceased's real property, the first $30,000 and 50 percent of the balance of the deceased's personal property.
  • If the deceased had two or more children with two or more lineal descendants surviving, the surviving spouse would receive 33.33 percent of the deceased's real property, the first $30,000 and 33.33 percent of the balance of the deceased's personal property.
  • Surviving spouses have additional rights upon the death of their husbands/wives. 

Consult with an experienced attorney to find out more.

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Probate and probate administration

Probate is a court proceeding in which final debts are settled and legal title to assets is formally passed from the deceased person to the beneficiaries/heirs.  Probate administration only applies to probate assets.  Probate assets are those assets that the decedent owned in whole or in part at death, and that lacked a provision for automatic succession of ownership at death.

If there is a will, it usually names an executor who must file a petition for probate.  Without a will, somebody must ask the court to be appointed administrator.  The clerk of the court then decides that the will is genuine and valid—or deals with any objections or claims anyone else may bring against the estate—and then admits the will to probate.  Find out more about probate and administration of estates and trusts.

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Because every family is different

The attorneys of Haas & Associates, P.A. understand that each family has its own unique needs and goals that should be honored and furthered by the legal professionals who support them.  That is why commitment to our clients' needs is our number one priority.  Call us at 1-919-827-0916, or contact Haas & Associates, P.A. online to set up a consultation with one of our attorneys.