North Carolina Estate Planning Blog : North Carolina Estate Planning Lawyer & Attorney : Trust Counsel, PA : Trust Administration : Serving Chapel Hill, Durham, Raleigh, Pittsboro, Orange County, Chatham County

Here's a summary of Burton v. Williams, a recent North Carolina Court of Appeals case (adapted from today's NAELA eBulletin):

Plaintiff sued defendant as attorney-in-fact for decedent, alleging that an addendum and payment agreement release entered into between decedent and defendant regarding the sale of decedent’s property were void and unenforceable.  The grounds were that (1) At the time the documents were signed, decedent lacked the mental capacity to assent to the addendum and release; (2) the agreements were obtained through undue influence and duress; (3) they were procured through fraud; and (4) they were not supported by consideration.  After presenting his evidence, plaintiff moved for a directed verdict, and the court granted on grounds that the release was void and unenforceable for lack of consideration.  Defendant claimed this violated his right to trial by jury. However, because plaintiff established his claim through documentary evidence, which both parties stipulated was authentic and correct, the Court of Appeals ruled that the trial court properly directed the verdict in favor of plaintiff despite plaintiff having the burden of proof at trial. No consideration for the payment agreement was specified, and the document which was the basis of the agreement, as a matter of law, was not a valid contact. 

Burton v. Williams, 2010 N.C. App. LEXIS 93 (January 19, 2010)

• Email This
• Print
• Comments
• Trackbacks

Sounds like a nightmare, but it's true.  After an auto accident, Larry Green was put into a body bag and refrigerated.  The medical examiner dismissed paramedics' claims of signs of life from Green's "body."  He was later determined to be alive, but now is in a nursing home and has limited brain function. Green's family has already recovered $1 million from Franklin County, NC. See this story from the Raleigh News and Observer. 

• Email This
• Print
• Comments
• Trackbacks

The National Consumer Law Center has come out with a report detailing the risks of reverse mortgages for senior homeowners.  Because of high fees, interest rates and other issues, I generally do not recommend reverse mortgages, although for some they may be the only feasible way to access cash.

• Email This
• Print
• Comments (1)
• Trackbacks

According to the Social Security fund trustees, cost of living adjustments (COLAs) in Social Security payments are unlikely in 2010 and 2011.  COLAs are linked in to inflation, which has been negative in 2009, primarily due to lower energy costs.  That's little consolation to the million of seniors who depend on Social Security as their primary source of income.

• Email This
• Print
• Comments
• Trackbacks

I'm down in Amelia Island Florida this weekend for a Florida Bar Tax Section meeting.  Today is a day off for many, and will be an afternoon off for me, as I head to the pool and then a movie with the family.

However, it's been a while since I blogged, and I wanted to write a brief note as we approach July 4th.  Our nation has been a free state now for well over 200 years, officially starting with a legal document, the Declaration of Independence.

Individuals can help assure their own independence, too, in a manner of speaking, by making sure that they have important legal documents of their own.   In the event of incapacity, whether temporary or permanent, Living Trusts, Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills and HIPAA Authorization forms can all help avoid the necessity of being declared incompetent and having a guardian appointed.  Choosing the person to handle your affairs and making advance instructions about what you want and do not want will ensure that you maintain a certain level of dignity and independence from the court system.  You should be in charge, or the individual you choose as your representative, not the judge.

Choose independence, just as our forefathers did.

 

• Email This
• Print
• Comments
• Trackbacks

Cremation is an increasing common way of handling human remains.  While cremated remains are sometimes buried, there is often a desire on the part of family members (or a request from the deceased) to scatter the ashes somewhere.

North Carolina General Statutes Section 90-210.130(f) provides for legal methods of scattering of cremated remains:

• over uninhabited public land
• over a public waterway or sea, subject to health and environmental standards
• on private property of a consenting landowner
• must be removed from the closed container

Boats or airplanes can be used to perform the scattering.  Scattering in a scattering garden in a dedicated cemetery is also permitted under NCGS Section 90-210-130(c).

Keep in mind that unless the deceased has requested cremation in a Will, Health Care Power of Attorney or other writing witnessed by two people, the next of kin must consent to the cremation in writing before it can take place.

• Email This
• Print
• Comments
• Trackbacks

The North Carolina Center for Public Policy Research just issued a press release with the results of a study indicating that North Carolina needs to do more to protect its senior citizens against fraud.  The Center also provided recommendations on what could be done to improve the current situation, including implementing new laws to require bank employees to report financial abuse against elderly customers.

Click "Continue Reading" for a list of signs that a senior may have been defrauded.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

This posting is not about estate planning per se, but rather death, which everyone must contemplate in the course of planning his or her estate.

Yesterday afternoon I stayed at the bedside of a friend of 30 years as he peacefully died in the last stages of Lymphoma.  He was 48 years old.

There is nothing like the experience of holding a loved one's hand as he or she dies to make one realize how precious and unpredictable life is, and how important it is to cherish family and friends.  Readers who have gone through this understand that it brings a certain final maturity to the experience of what it means to be human.

So, my advice is to complete a plan for when the end will come, but then relax, and enjoy family, friends, and new adventures.  There is no better tribute to those we have lost.

 

• Email This
• Print
• Comments
• Trackbacks

The Triangle Community Foundation (TCF) is holding a celebration tonight of its 25th anniversary (I'm pleased to say that I will be attending).  The TCF is a tremendous asset to the greater Triangle area, providing millions of dollars annually in funding to local non-profits.

One feature of such charitable foundations is that one can establish a Donor Advised Fund (DAF) at the foundation for a particular area or areas of interest.  A tax-deductible contribution can then be made to the foundation, even if the funds under the DAF will not be distributed until later.

For example, I could set up a DAF with the TCF, to be focused on childrens' welfare.  I could contribute $10,000 to the TCF on December 31, 2009, and take a tax deduction.  Then, during 2010, I could suggest (advise) to the TCF that distributions be made to the Boy or Girl Scouts, UNICEF, BIg Brothers, Big Sisters, etc.

DAFs can also be established in one's Will or Trust, with one's children or other family members serving as the advisers.  DAFs are much simpler and less expensive than family private foundations, although private foundations do offer more control by family members.  I normally recommend against private foundations unless they will ultimately be funded with at least $1 million.

Happy birthday, TCF!

 

• Email This
• Print
• Comments
• Trackbacks

In this blog, mostly I write about taxes.  Sometimes I write about death or politics.  Often somber topics, but ones that will always be current.  Here's an article from The Economist dealing with death, end-of-life decision making, and religion, so I now I'm adding that subject into the mix.

• Email This
• Print
• Comments
• Trackbacks

Thanks to a client of mine for providing this cartoon!

• Email This
• Print
• Comments
• Trackbacks

I had no idea North Carolina was so bad off until I saw the statistics put out by the Bureau of Labor Standards.  Our unemployment rate in December 2008 was 8.7%, which puts us on top of all states but Michigan (the highest at 10.6%), Rhode Island, California, Nevada, Oregon, and Washington D.C.  The state with the lowest rate was Wyoming at 3.4%.

While estate planning is extremely important, I can see how it takes a back seat for folks busy looking for work and trying to put food on the table and gas in the car.

I'm quite skeptical of the stimulus package and the benefits it will supposedly bring to our economy.  it does very little to encourage upper middle class professionals and business owners (who are not eligible for most of the tax breaks) to spend money personally and in their businesses.  For example, a substantial tax credit for hiring new employees would encourage me to hire someone, thereby creating a new job.  But what do I know - I'm not a politician or an economist, just a business owner who pays a lot of tax each year.

 

• Email This
• Print
• Comments (1)
• Trackbacks

Janice Oldham, who has served as Chatham County's Clerk of Superior Court for more than 30 years, is retiring at the end of this month.  Senior Resident Superior Court Judge Carl Fox has appointed Chatham native Sam Cooper to serve the remainder of Oldham's term, which expires on December 31, 2010.  Cooper will then have to run for election if he wishes to keep the job.

Clerks of Court are responsible for, among other things, estate, trust and guardianship matters, serving as ex officio judges of probate.  Legal training is not a requirement of the job, but the trend in recent years is for licensed attorneys to be appointed.  The counties in which the most probate matters, Orange, Durham and Chatham, all now have lawyers serving as Clerks.

• Email This
• Print
• Comments
• Trackbacks

I am pleased to announce that the North Carolina Estate Planning Blog will be nationally syndicated by Newstex, a blog aggregation company.  The Blog is also recognized by the American Bar Journal, Trusts and Estates magazine and USlaw.com, as well as by other nationally known bloggers.

• Email This
• Print
• Comments (1)
• Trackbacks

The Housing and Economic Recovery Act of 2008 more than doubled the home value (now up to $417,000) to be used nationwide for establishing the size of loans available from the federal reverse mortgage program.  Loan origination fees were also lowered.

A reverse mortgage allows persons over age 62 to get lines of credit or cash payments based on the equity in their homes. Repayment is not required as long as borrowers remain in their homes.  Reasons for obtaining a reverse mortgage include paying off an existing mortgage, paying property taxes and getting cash to pay for daily living expenses.

• Email This
• Print
• Comments
• Trackbacks

I just received an email with the following text (albiet in my spam filter).

After the last annual calculations of your fiscal activity
we have determined that you are eligible to receive
a tax refund under section 501(c) (3) of the
Internal Revenue Code. Tax refund value is $120.50.
Please submit the tax refund request and allow us 6-9 days
in order to IWP the data received.
If u don't receive your refund within 9 business
days from the original IRS mailing date shown,
you can start a refund trace online.

If you distribute funds to other organization, your records must show wether
they are exempt under section 497 (c) (15). In cases where the recipient org.
is not exempt under section 497 (c) (15), you must have evidence the funds will
be used for section 497 (c) (15) purposes.

If you distribute fund to individuals, you should keep case histories showing
the recipient's name and address; the purpose of the award; the maner of
section; and the realtionship of the recipient to any of your officers, directors,
trustees, members, or major contributors.

To access the form for your tax refund, please click here

This notification has been sent by the Internal Revenue Service,
a bureau of the Department of the Treasury.

Of course, the email is fraudulent (not to mention nonsense), and anyone foolish enough to follow the link and enter in the requested financial information will most likely find their identity and their money stolen.  Beware!

• Email This
• Print
• Comments
• Trackbacks

I've seen this joke around a couple of times, and thought I would bring a little levity to the site by publishing it - don't know who came up with it.  My apologies if anyone is offended.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (1)

Burke County, in the foothills of the Blue Ridge Mountains, is one of the fastest-aging counties in the country, according a recent article in Forbes.  Morganton, Burke County's largest city, is a pleasant enough place, but apparently young people are moving out, and few are moving in, as the general population grew only .03% in the last five years.  The 65 and over population grew by nearly 7% during the same time period, so the old folks are staying put.  Query if Burke County has become a senior destination, like Chatham County.

• Email This
• Print
• Comments
• Trackbacks

Today I received an email message that reads as follows:

    Good Day,

    My name is Sarah Brown. I work as an executive partner for the firm Mayer Brown Watford
    consulting,U.K. We are conducting an inquiry on
    behalf of Deutsche Bank, the German conglomerate. This inquiry involves a late client who                 shares your surname.
    1. Are you aware of any relative/relation who's last contact address was Brussels, Belgium?
    2. Who shares a similar name?
    3. Whose date of birth on file was 27/07/1932?
    Thank you for your co-operation and best regards,

    Sincerely,
    Mrs. Sarah Brown.
    mailmayerbrownwatford@googlemail.com

This is obviously a ploy designed to appeal to greedy folks who might provide false information in order to try to collect an "inheritance."  Notice how the writer doesn't even say what the name is?  And the email address doesn't have a company URL? I'm sure that if one were to respond, "Mrs. Brown" would require a "documentation" or similar fee to be paid up front before the inheritance can be received. Don't fall for it!

• Email This
• Print
• Comments (1)
• Trackbacks

Could joint tenancy, one of the most common forms of holding title to assets, lead to an estate planning disaster for your heirs? Joint tenancy, often called “joint tenants with right of survivorship,” is a form of holding equal interests in an asset by two or more persons. If one joint tenant dies, his or her share generally passes automatically to the other joint tenant(s) by right of survivorship.

Continue Reading...

• Email This
• Print
• Comments (12)
• Trackbacks

This is a big departure from my normally somewhat "dry" postings, but as a baby boomer myself, I found this animated short quite funny and wanted to share it.  Enjoy!

However, there is also a serious message there - despite our attempts to stay young, we are all growing older, and it is necessary to plan for incapacity and death in order to protect ourselves and our families.  So complete your estate plan, and then get back to acting spry!

• Email This
• Print
• Comments (1)
• Trackbacks

According to ESRI, most of North Carolina's wealthy live in the Charlotte area, but the Triangle boasts eight of the top 25 wealthiest ZIP codes in NC.  Most of the eight are in Wake County (27518 Cary, 27614 Raleigh, 27519 Cary, 27615 Raleigh, 27617 Raleigh, and 27539 Apex).  Durham's 27712 ranks 24th, while Orange County is only partially included in the 27517 ZIP Code (number 16), which includes Chatham's Governors Club and Carolina Meadows.  Chatham also gets in with Apex's 27523 (#21).  The ratings are based on 2007 data for median and average household income, per capita income, average net worth, average disposable income, and average home value.

If you don't live in one of the these areas, don't feel bad - neither do I!  And most of my clients don't either - I have many great clients in the 27312, 27514 and 27516 ZIP codes, and even in the eastern and western parts of the state, where only one ZIP code was included (27927 Corolla).

• Email This
• Print
• Comments
• Trackbacks

Today I received the following email, which is clearly fraudulent.  If you get such an email, DO NOT RESPOND unless you like having money stolen from your bank account:

This is Francis V. from the Refund Operations Department at Internal Revenue Service
 (United States Department of the Treasury).

After the last annual calculation of your fiscal activity we have determined that you
 are eligible to receive a tax refund of $103.82.

Please submit the tax refund request and allow us 2-4 days in order to process it.

A refund can be delayed for a variety of reason. For exemple (invalid records or
 applying after the deadline).
The good news is that Internal Revenue Service will make this refund directly to your
 visa and/or mastercard linked
to your checking/savings account instead a check or a direct deposit.

To access the form for your tax refund, please continue to our secure server
 form at: _____________________  My Note:  I removed the link to prevent anyone from clicking on it.

Important: Do not use credit and/or american express or discover cards. Only cards that
 are linked to your checking/savings account are accepted.

 Regards,

Francis V.
 Internal Revenue Service - Tax Refund Specialist

Beware!

• Email This
• Print
• Comments (2)
• Trackbacks

Here's another article from the National Care Planning Council:

Seniors Relocation and Real Estate Services

As people age, they often become overly attached to their homes and even though there may be compelling reasons to find other living arrangements, these folks will go to extreme lengths to remain in their homes.

Notwithstanding the affection for their dwellings, there is oftentimes undeniable pressure for seniors to move out and into a different living arrangement. Consider the following:

• The challenge of maintaining a yard and providing upkeep has become too great.
• There is a need for long term care that can't be handled in the home.
• The older person needs supervision that can't be provided in the home.
• The neighborhood has deteriorated and safety is a concern.
• There is a desire to be near children or grandchildren (70% of those 65+ live within 1 hour of a child).
• The home cannot accommodate disability needs.
• There is a need to avoid climbing stairs.
• Assets are tied up in the home and cash is needed through selling the property.
• Driving is no longer possible and available local transportation is not adequate.
• There is a desire for a warmer climate, a yearning for new vistas or a need for challenging new experiences.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Charles Schwab Corporation is selling U.S. Trust Company, which was bought in 2000, to Bank of America for $3.3 billion in cash.  U.S. Trust is a full service wealth management and fidicuary provider with a large minimum account size - it never fit in well with the original Schwab philosophy. 

• Email This
• Print
• Comments
• Trackbacks

Based on a number of factors, such as health care and estate taxes, an article in Forbes ranks North Carolina squarely in the middle of the pack in a listing of the best states in which to die.  Utah came in first, while Washington D.C. was at the bottom.  I guess that says something about how politicians affect the quality of life.

• Email This
• Print
• Comments
• Trackbacks