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What documents are included in an estate plan is dependent on our client’s wishes and concerns. However, a typical estate plan includes a will, durable general power of attorney, healthcare power of attorney, living will, and HIPAA Authorization. Some clients’ estate plans also include a trust. These documents are meant to handle any financial or health concern during your life and your property distribution upon your death.

Before your estate planning consultation, our office will send you our Estate Planning Consultation Questionnaire. This questionnaire will include questions about your family and assets.

We use this form for many reasons, including to obtain information that will allow us to advise you regarding what assets will pass according to your will and what assets will pass outside of your will, if you need to address an estate tax issue, and collect information like the spelling of names that we will include in your documents.

It is very important that you completely fill out this questionnaire and return it to the office so that the attorney can review it before your consultation. It is also helpful for you to keep a copy of your completed questionnaire so that you can reference it during the consultation.

The estate planning documents we prepare for our clients are meant to address most situations you or your named fiduciary (e.g. executor, trustee, agent under the power of attorney, or healthcare power of attorney) may encounter.

We may determine your particular situation raises concerns about potential complications or litigation. In that case, we want to include special provisions to protect you from issues that may arise in the future. Therefore, your documents may be longer and more complicated than others.

We suggest you keep your documents in a safe, secure, fireproof container in your house. You should discuss with your named fiduciaries how they can access the documents in the event of an emergency. Fiduciaries include an executor, trustee, agent under a power of attorney, or healthcare power of attorney,

We also suggest that along with your estate planning documents, you keep an updated list of all your bank accounts, retirement accounts, insurance policies, and other significant assets in the same fireproof container.

Providing a list of assets will be helpful for your fiduciaries in the case of an accident or incapacity and upon your passing. We don’t suggest you keep your documents in a safe deposit box, because banks are not always open. In case of emergency, or upon your passing, your family members may not be able to access your documents without either the bank’s or court’s permission.

The attorney should look over your biographical information to determine such information as the opposing party, date of marriage, date of separation, and the number and ages of children. The attorney will then usually let you explain why you are consulting. He or she should then discuss the matter; in a separation scenario, the attorney should address:

• How and When to Separate
• Custody and Child Support
• Alimony Exposure
• Property Settlement (Equitable Distribution)
• Methods of Settlement
• Costs of Negotiating an Agreement and Costs of Litigation

If you retain, you should be given a contract to review with billing practices spelled out.

Sharing your documents with family members or other individuals is a decision dependent on personal factors. These include your relationship with family members and your current health status. Therefore, while an attorney may suggest that you keep your documents private, the decision is ultimately up to you.

However, sharing certain documents such as a durable general power of attorney could create complications down the road. Issues might include having a falling out or disagreement with your agent, or if your agent has financial or health issues. You should ask your attorney for advice regarding who you should share your documents with and when and how to share these documents.

Writing on your will is very risky and can cause unintended disinheritances and invalid gifts. North Carolina has highly specific rules regarding valid wills and changes to wills. You should discuss all changes to your will with an estate planning attorney BEFORE you write on your will.

If you’ve already written on your will, then contact an attorney to review your document and determine if it still achieves what you want. If not, your lawyer will determine the best method of updating your will.

In some circumstances, a codicil makes more sense than executing a new will. A codicil is a separate document that will act as an amendment to your will. It won’t replace your current will, therefore, you should keep the two documents together in a safe location. However, in some circumstances, due to the nature or number of changes you wish to make, executing a new will may make more sense. An estate planning attorney can let you know if signing a codicil or a new will fit your situation.

An estate tax is a tax on the total value of your estate upon your passing. This tax is paid before your assets are distributed to your beneficiaries. A gift tax is a tax on the transfer of money or assets to another individual during your life.

Estate and gift taxes are very complicated and cannot be avoided by giving away your assets. In order to avoid estate and gift tax issues, you should always speak to an attorney before giving away large sums of money or highly valuable assets, even if these assets are being given to close family members.

An estate planning attorney at the Weaver Bennett and Bland law firm can advise you as to timing, methods, gift amounts, and the best ways to avoid incurring an estate or gift tax.

There are two types of powers of attorney — a durable general power of attorney and a healthcare power of attorney.

• A durable power of attorney allows you to select someone to make decisions during your life regarding your financial matters. This document can be effective immediately or only upon incapacity.
• A healthcare power of attorney allows you to select someone to make medical decisions on your behalf. This is important when you’re unable to discuss these matters directly with the doctor.

Another important document regarding healthcare decisions is a living will. A living will is a document that allows you to make decisions regarding end-of-life care. This includes critical decisions like when you want to receive life-prolonging measures, like a feeding tube for example. Many people believe they don’t need a power of attorney because they’re able to make their own decisions regarding their financial and physical well-being. However, a sudden accident or progressively degenerative disease can make it necessary for a friend or family member to step in.

If you do not have these powers of attorney, and a loved one needs to step in to help you with your financial or medical well-being, then they will have to go through a process called guardianship. Guardianship is a trying and expensive court proceeding. Here, a clerk of court will determine if you are unable to make financial or medical decisions due to incapacity or incompetency.

Signing a durable general power of attorney, and healthcare power of attorney prevents your loved ones from having to go through the guardianship process, which is expensive and trying. It also allows you to select the person who will act on your behalf.

During a guardianship proceeding, the clerk determines if you’re able to make financial or medical decisions about your well-being. They also determine who should be named as your guardian of the person (physical wellbeing), guardian of the estate (financial wellbeing), or general guardian (guardian over both physical and financial wellbeing).

The clerk is not required to select the person who petitioned the court for guardianship. They also don’t have to choose any other family member to act as their guardian. The clerk may decide to name an attorney to act as a guardian. They may choose this even when the family lives nearby and is willing to act as guardians. Therefore, we recommend everyone sign a durable general power of attorney and healthcare power of attorney to help prevent court involvement.