“I don’t remember if I have put items in my trust and am in the process once again of putting my estate in order.”

Dear Confused Trustor,
What a great question. Many people have trusts, but unfortunately there’s nothing inside many of them. Quite often the lawyer leaves this very difficult, time consuming responsibility up to the client, but shortly after leaving the office the client puts the papers away and never gets anything transferred into the trust name. In my firm I take on that responsiblity. To see if your trust has assets designated to the trust name the first stop is your mail. When you look at your bank and brokerage statements, is the name at the top yours or does it reference your trust name? If your trust name is on the statement then congratulations that asset is part of your trust. If it’s not then you want to make sure that those accounts are assigned to your trust name. However, you must be very careful if your married and you are working with two trusts, because this needs to be done right or the tax consequences can be terrible. You also want to check the deeds to your real estate and see if the trust is named. Almost every asset with paperwork needs to be in the trust name. That includes checking accounts, savings accounts, stocks, brokerage accounts, savings bonds, vehicles, land and corporate interests. IRA, 401ks, 403bs, Annuities and some life insurance shouldn’t be owned by the trust, but often the trust should be named as a beneficiary. This is complicated stuff and again, one wrong move can have devastating consequences. Also, make sure that all future assets are purchased in the trust name. At death if everything is in the trust you will avoid probate. Please sit down with your attorney again and review what steps need to be taken, before proceeding on your own. Thank you again for asking a question which will benefit so many people.
Very truly yours,
Cheryl David
Law Offices of Cheryl David
5606 W. Friendly Avenue
Greensboro, NC 27410
(336)547-9999
cheryl@cheryldavid.com
The advice given above is for informational purposes only and does not create an attorney client relationship.
www.cheryldavid.com

“If a mother dies and she is not married, does the responsibility of her funeral arrangements fall on the eldest son?”

If your mother doesn’t designate in advance how she wants her funeral arrangements handled, morally you might feel compelled to make such arrangements, but legally you are not obligated. By NC statute a majority of the surviving children over 18 can authorize the funeral arrangements and bind the estate to pay the expense if no one was nominated in a funeral contract, cremation authorization form, will, or written statement signed by the decedent and witnessed by two persons who are at least 18 years of age. If your mother’s children don’t handle the arrangements her parents and then her siblings would be next in line. I would suggest that your mother nominate someone to handle her funeral arrangements in one of the ways listed above.
www.cheryldavid.com
Law Offices of Cheryl David
5606 W. Friendly Ave
Greensboro, NC 27410
(336)547-9999
cheryl@cheryldavid.com
The advice above is for informational purposes only and does not create an attorney client relationship.

“I am my Fathers executor and there is a car that is not willed to anyone, I would like to finish paying bills out of my pocket to keep the car. But I have one other sibling involved. If I sell the vechile does it have to be sold for a certain amount or can I pay the remainder of the bills and keep the car?”

Thanks for asking this question and not taking matters into your own hands. Always be careful when acting in the position of executor and doing things which you “feel” are okay. Such actions will likely be construed differently by the court and other family members such as your sibling. All bills should be paid from the estate, so don’t attempt to pay the bills yourself and then reimburse yourself with the car. That’s not how things work. It isn’t legal and it could get you in a lot of trouble. I highly recommend that you seek the advice of an attorney to legally protect yourself and make sure that the estate is handled by the book. There is wording in every will which covers property which hasn’t been specifically designated. It is called the residuary estate. In this instance,the car is likely in the residuary estate. The residuary estate is the remainder of the estate after all specific bequests are made and bills have been paid. Many times it pays out to a set of beneficiaries such as the decedent’s children. If this is the case, I would generally recommend that the car be purchased from the estate for fair market value. The sales proceeds should then be placed in the estate account to be divided amongst the legal beneficiaries of the will.
Law Offices of Cheryl David
5606 W. Friendly Avenue
Greensboro, NC 27410
www.cheryldavid.com
cheryl@cheryldavid.com
blog.cheryldavid.com
(336)547.9999

The above advice is given for informational purposes only and should not be relied upon or construed to create an attorney client relationship.

“my husband recently died without a will. I know what his wishes were but i don’t know what the law would be.”

I’m sorry about your loss. When someone dies without a will in NC the state has laws that are in place which state how the estate will pass. Typically, with married individuals, much of the estate is owned in both names. This is called joint tenancy with right of survivorship or tenancy by the entireties. When assets are titled this way they go automatically to the surviving spouse without court. So, if you owned your home together it goes to you. Accounts held together go to you. Other accounts have beneficiaries. If you are the beneficiary of your husband’s life insurance, IRA, 401k etc., then those accounts will roll over to you. Other accounts in just your husband’s name without beneficiary desigations must go through probate. Regardless, I recommend that you see an attorney to get guidance and advice.
Sincerely,
Cheryl David
Law Offices of Cheryl David
5606 W. Friendly Avenue
Greensboro, NC 27410
(336)547-9999
www.cheryldavid.com

*This answer is for information purposes only and does not create an attorney client relationship.

“she lives in a different state from him…we just found her after his death..he only had us till the end…does she have the right to take his estate”

Dear Distraught in NC,
I’m sorry to hear about your brother-in-law’s passing and the circumstances which led you to ask this question. Unfortunately, if your brother-in-law wasn’t divorced, depending on how the property was titled, your sister-in-law may be entitled to his entire estate. First determine how the property was owned. If you look at the real estate title and it has both of their names listed, then it is likely hers. With regard to the profit sharing, it depends on whom your brother-in-law named as beneficiary. The beneficiary of this type of asset is usually the spouse. Also, look hard to see if a will turns up. They can be hidden in the strangest places. If you find one, see what the will states. While it is likely that your sister-in-law will receive everything, you may have a claim for certain bills and expenses you paid on behalf of your brother-in-law. Please make sure this doesn’t ever happen to anyone you know. Encourage your friends and family to do estate planning before they get ill or pass. Again, my condolences to your family.
Sincerely,
Cheryl David
Law Offices of Cheryl David
5606 West Friendly Avenue
Greensboro, NC 27410
(336)547-9999
www.cheryldavid.com

“I have no idea how to fill this form out. Part I number 1 has been filled in by the clerk of court. The rest is Greek.”

Dear Lost in the Court House Maze,
I admire that you tried to handle the probate yourself, but I most admire that you knew when to ask for help. So many people think that this process is simple. However, as you have found out it appears to be in Greek. Legalese and legal procedures are just like another language, so don’t beat yourself up. Also, the clerks aren’t allowed to give you too much advice or they will be charged with practicing law without a license in our state. You gave it a great try, but I would recommend that you see an attorney to help you fill out the final probate papers. Things have to be perfect to finalize an estate and if the clerk filled out the first part and you are having trouble the safest thing to do is let an attorney assist you in bringing the matter to a close. The estate will pay both your fee and the attorney’s fee.
Law Offices of Cheryl David
www.cheryldavid.com
5606 W. Friendly Avenue
Greensboro, NC 27410
(336)547-9999

More of the Question: “There are 4 children and one signed his part over to his sister leaving jus his 3 sisters to settle things. One of the children live in the house , she now owns 50% of the home and property. It is her only home.She feels as if she is being pressured and pushed by her other two sisters…I need help as i am so stressed and im jus beside myself with greif and tired of being threatened by my two sisters….Please help me.”

Dear Stressed in North Carolina,

First, I’m sorry about your loss and the emotional turmoil this entire thing is causing. It can get really nasty between children when a parent dies without a will, even if the only thing they left were bills and a house. In NC, if there isn’t a will which specifically designates who gets the house, the house transfers by law to the legal heirs, in this case, presumably the four children, without probate. If you own 50% of the house, then it belongs jointly to you and your sisters. More than likely, you only own 25%, because your brother can’t give you his share by deed unless the deed is probated and everyone signs off on the transfer. Your siblings have as much right to live there and call the shots as you do. If it’s possible to get everyone to agree, the best thing may be to sell the home. You would receive a portion of the sales price and your siblings would each receive their portion. However, to sell the house within two years of your parent’s death, you would need to probate the estate to pass good title. If more than two years has elapsed then probate probably isn’t necessary. I would recommend that you see an attorney about this matter or it might never go away.

Question: I need to be able to file a motion to have a person removed as executor and review my Dads accounts and her “joint” account with him that she admits was a “convenience” account. The problem is I only have about $3,000 and at $250 an hour an attorney just driving back and forth to file motions would burn that up fast. Don’t take offense but is justice only for those that have money?

Dear Distressed in Charlotte,

Wow! It sounds like you believe there something really bad going on with the executrix of your father’s estate. If you believe that she is defrauding the estate, it will end up costing you a lot more than the attorney’s fees if you don’t get this activity stopped. The entire estate could be lost. While technically you could try to figure out how to file these motions yourself and become your own lawyer, I don’t recommend it, there’s probably too much at stake. You could contact a few attorneys in the county where your Dad lived before he passed and see how much they would charge and whether or not court is feasible. You would have to prove that something bad is going on before they will remove the executrix and that’s not an easy task without knowlege of how the probate system works.

Best of Luck,
Cheryl
www.cheryldavid.com

Here are some more facts from the questioner. Estate was assigned an administrator, wife of deceased person. Looking out for own interest, other beneficiary involved. Deceased person did not leave a will or named beneficiary on property or assets (including wife). Other beneficiaries would like estate to be handled through probate so total assets are revealed and truth be known about other matters. They would like the court/judge make decision on what is due beneficiaries.

Dear Beneficiary with a Sticky Situation,
Wow! What a mess! This could have all been avoided with a detailed estate plan, but you don’t want to hear what you’ve already figured out. Every state is different, but in NC, where I practice, if the estate was assigned an administrator then it is being handled through the court. When a person dies without a will, NC law takes over regarding who gets what. Typically, when someone is married and they have children, but no will, the assets owned solely in the deceased person’s name, are partitioned between the wife and the children. If the deceased person was married more than once, with children from a prior marriage, the amount allowed to the spouse decreases. All assets in the deceased person’s name, without beneficiaries, will funnel into the estate and then be divided according to the NC statutes. The court will oversee what is due to the beneficiaries. You may look at the court files in this administration to determine what is going on. They are a matter of public record, so go take a free look.
Best of Luck,
Cheryl
www.cheryldavid.com

Dear Smart Person with A Living Trust,
I’m so glad you have a living trust. You’ve saved your family the hassle of probate court at death. The beauty of real estate held in the name of a living trust is that it avoids probate. Since the four children were named as the beneficiaries the property can be transferred directly to them.
Very truly yours,
Cheryl