E-P FAQs
List of Questions:
1. What happens if I die without a valid Last Will and Testament in North Carolina?
2. I just moved to NC from another state, do I need to have my will redone?
3. What is an executor?/Who can be an executor?
4. Do I need estate-tax planning?
5. What are probate costs and how do I minimize them?
6. Are J&M's documents appropriate for me?
7. What is a Living Will?
8. What is a Health Care Power of Attorney?
9. What is a Durable Power of Attorney?
2. I just moved to NC from another state, do I need to have my will redone?
3. What is an executor?/Who can be an executor?
4. Do I need estate-tax planning?
5. What are probate costs and how do I minimize them?
6. Are J&M's documents appropriate for me?
7. What is a Living Will?
8. What is a Health Care Power of Attorney?
9. What is a Durable Power of Attorney?
1. What Happens if I die without a valid Last Will and Testament in NC?
If you die without a valid last will and testament, your property for which you have not otherwise designated valid beneficiaries will
pass through a statutorily provided succession method known as “intestate succession.” In general, if you die and leave a spouse
and children who survive you, YOUR SPOUSE WILL NOT INHERIT ALL OF YOUR ASSETS. Under intestate succession, both your
spouse and your children will share in the ownership of the assets in your estate. The ownership proportions depend upon the
number of children you have.
2. I just moved to NC from another state, do I need to have my will re-done?
Any will submitted for original probate in NC must meet the statutory requirements for being admitted to probate in NC, which
includes specific acknowledgment and witnessing requirements that may not be present in wills drawn up in other states. Thus, if
you are moving to NC you should have your wills redone to ensure your wills comply with NC's statutory requirements for probate.
3. What is an executor/Who can be an executor?
An executor is the person chosen (by a testator –person making a Will) to carry out the provisions of his or her Last Will and
Testament. Generally, the executor is responsible for gathering all the probate assets of the testator, paying the testators debts and
expenses and distributing the testator’s assets to beneficiaries in accordance with the testator’s directions in his/her Will. A person
cannot qualify as an executor in North Carolina if the person (a) is under 18 years of age; (b) has been deemed incompetent in a
judicial proceeding; and (c) has been convicted of a felony. N.C.G.S. Sec. 28A-4-2.
4. Do I need estate-tax planning?
Johnson & Moore does not provide advice relating to estate-tax matters and does not currently draft estate planning documents with
complex estate-tax planning provisions. You should consult with your tax advisor as to whether your estate is of sufficient size to
warrant estate-tax planning methods. In 2011, the federal estate tax generally only applies to clients with taxable estates in excess
of $5 million.
If you are not sure whether your estate warrants estate-tax planning in your overall estate plan, please consult your tax advisor.
5. What are probate costs and how do I minimize them?
Probate costs are basically the court costs associated with a decedent's estate and are generally based on all personal property
the decedent owned at the time of his death for which a beneficiary has not otherwise been selected. {In North Carolina probate
costs are $50 plus 40 cents ($0.40) per $100 of value of the probate estate (with a maximum fee of $6,000). NCGS Section 7A-
307.} Thus, any accounts which are owned with another as joint tenants with the right of survivorship or for which a beneficiary has
been designated and any real estate that is not directly willed to the estate or sold by the estate are not included in the calculation of
probate costs. Thus, for example, if you have an investment or retirement account in your name alone and you designate your
spouse and the primary beneficiary and your children as successor beneficiaries, then that account will not be considered part of
your probate estate and will not be included in the calculation of probate costs. Talk to your investment advisor and/or banker about
designating beneficiaries on your accounts to minimize probate costs. Another method of reducing probate costs is to hold your
assets in a revocable living trust. If you are interested in a revocable living trust please talk to an estate-planning professional
about the benefits and burdens of such a trust.
CAUTION - you may not want to name minor or incompetent children directly as successor beneficiaries but may want to direct a
responsible adult to hold said minor or incompetent's share pursuant to a trust agreement or Uniform Gift to Minors Act, etc. Also, if
you leave all your accounts to beneficiaries or survivors (if held as joint tenants w/right of survivorship) your estate may not have
enough money to pay any specific pecuniary bequests or your death expenses and taxes. Please pay attention to what assets will
flow through your probate estate and what assets you are directing your executor to distribute to beneficiaries.
6. Are J&M's online documents appropriate for me?
The documents prepared through JM's online requests are meant for “simple” type estate where no estate-tax planning is required
and where in general a person is seeking to leave his or her property to his or her spouse and his or her kids. If your estate would
likely be subject to estate-tax upon your or your spouse’s death or if you have any unique or complicating situations such as limiting
inheritance of a spouse or minor child, a disabled child who will need special provisions upon your death, real property in other
states or any other request not contemplated in our questionnaire or our documents.
7. What is a living Will?
A living will or Declaration of Desire for a Natural Death is a declaration from the executor to his/her physician as to the declarant's
preferences for providing/withholding life support measures under certain situations involving terminal illness, coma, dementia,
brain death and similar life ending situations.
8. What is a health care power of attorney?
A health care power of attorney allows your designee (health care agent) to make health care decisions for you when you are unable
to do so (if you are unconscious or in a coma for ex.). The person you designate to make your health care decisions is known as
your health care agent or health care attorney in fact. A health care power of attorney is only valid while the person for whom the
agent is acting is alive.
9. What is a durable power of attorney?
A durable power of attorney allows someone else to act in your place with regard to business and financial matters. This type of
power of attorney can be effective even if you are competent to handle such affairs yourself (for example you can grant POA to your
spouse to sign legal documents on your behalf when you are out of town). The person you designate to assist you with handling
your business and financial affairs is knows as your "attorney in fact" or "AIF." A durable power of attorney is only valid while the
person for whom the AIF is acting is alive.
If you die without a valid last will and testament, your property for which you have not otherwise designated valid beneficiaries will
pass through a statutorily provided succession method known as “intestate succession.” In general, if you die and leave a spouse
and children who survive you, YOUR SPOUSE WILL NOT INHERIT ALL OF YOUR ASSETS. Under intestate succession, both your
spouse and your children will share in the ownership of the assets in your estate. The ownership proportions depend upon the
number of children you have.
2. I just moved to NC from another state, do I need to have my will re-done?
Any will submitted for original probate in NC must meet the statutory requirements for being admitted to probate in NC, which
includes specific acknowledgment and witnessing requirements that may not be present in wills drawn up in other states. Thus, if
you are moving to NC you should have your wills redone to ensure your wills comply with NC's statutory requirements for probate.
3. What is an executor/Who can be an executor?
An executor is the person chosen (by a testator –person making a Will) to carry out the provisions of his or her Last Will and
Testament. Generally, the executor is responsible for gathering all the probate assets of the testator, paying the testators debts and
expenses and distributing the testator’s assets to beneficiaries in accordance with the testator’s directions in his/her Will. A person
cannot qualify as an executor in North Carolina if the person (a) is under 18 years of age; (b) has been deemed incompetent in a
judicial proceeding; and (c) has been convicted of a felony. N.C.G.S. Sec. 28A-4-2.
4. Do I need estate-tax planning?
Johnson & Moore does not provide advice relating to estate-tax matters and does not currently draft estate planning documents with
complex estate-tax planning provisions. You should consult with your tax advisor as to whether your estate is of sufficient size to
warrant estate-tax planning methods. In 2011, the federal estate tax generally only applies to clients with taxable estates in excess
of $5 million.
If you are not sure whether your estate warrants estate-tax planning in your overall estate plan, please consult your tax advisor.
5. What are probate costs and how do I minimize them?
Probate costs are basically the court costs associated with a decedent's estate and are generally based on all personal property
the decedent owned at the time of his death for which a beneficiary has not otherwise been selected. {In North Carolina probate
costs are $50 plus 40 cents ($0.40) per $100 of value of the probate estate (with a maximum fee of $6,000). NCGS Section 7A-
307.} Thus, any accounts which are owned with another as joint tenants with the right of survivorship or for which a beneficiary has
been designated and any real estate that is not directly willed to the estate or sold by the estate are not included in the calculation of
probate costs. Thus, for example, if you have an investment or retirement account in your name alone and you designate your
spouse and the primary beneficiary and your children as successor beneficiaries, then that account will not be considered part of
your probate estate and will not be included in the calculation of probate costs. Talk to your investment advisor and/or banker about
designating beneficiaries on your accounts to minimize probate costs. Another method of reducing probate costs is to hold your
assets in a revocable living trust. If you are interested in a revocable living trust please talk to an estate-planning professional
about the benefits and burdens of such a trust.
CAUTION - you may not want to name minor or incompetent children directly as successor beneficiaries but may want to direct a
responsible adult to hold said minor or incompetent's share pursuant to a trust agreement or Uniform Gift to Minors Act, etc. Also, if
you leave all your accounts to beneficiaries or survivors (if held as joint tenants w/right of survivorship) your estate may not have
enough money to pay any specific pecuniary bequests or your death expenses and taxes. Please pay attention to what assets will
flow through your probate estate and what assets you are directing your executor to distribute to beneficiaries.
6. Are J&M's online documents appropriate for me?
The documents prepared through JM's online requests are meant for “simple” type estate where no estate-tax planning is required
and where in general a person is seeking to leave his or her property to his or her spouse and his or her kids. If your estate would
likely be subject to estate-tax upon your or your spouse’s death or if you have any unique or complicating situations such as limiting
inheritance of a spouse or minor child, a disabled child who will need special provisions upon your death, real property in other
states or any other request not contemplated in our questionnaire or our documents.
7. What is a living Will?
A living will or Declaration of Desire for a Natural Death is a declaration from the executor to his/her physician as to the declarant's
preferences for providing/withholding life support measures under certain situations involving terminal illness, coma, dementia,
brain death and similar life ending situations.
8. What is a health care power of attorney?
A health care power of attorney allows your designee (health care agent) to make health care decisions for you when you are unable
to do so (if you are unconscious or in a coma for ex.). The person you designate to make your health care decisions is known as
your health care agent or health care attorney in fact. A health care power of attorney is only valid while the person for whom the
agent is acting is alive.
9. What is a durable power of attorney?
A durable power of attorney allows someone else to act in your place with regard to business and financial matters. This type of
power of attorney can be effective even if you are competent to handle such affairs yourself (for example you can grant POA to your
spouse to sign legal documents on your behalf when you are out of town). The person you designate to assist you with handling
your business and financial affairs is knows as your "attorney in fact" or "AIF." A durable power of attorney is only valid while the
person for whom the AIF is acting is alive.