Coming up on this edition of Judica County Radio, hypothetical listener questions from all over the legal world. That's coming up next. You're listening to Judica County Radio. Whitaker and Judica County. with Joshua Whitaker and Joseph Heyman.
Welcome into Judica County Radio. Your hosts are Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, located right here in the great state of North Carolina, where they practice law. And they placed offices all across our state for your convenience down at the coast, Moorhead City, over near Charlotte in Gastonia, locally, Fuquay, Goldsboro, Clayton, Garner, Cleveland, and the Cap City, Raleigh, North Carolina. If you've got a question you'd like the attorneys to address on a future program, you can always send it to us. Questions at JudicaCountyRadio.com.
That's questions at judicacountyradio.com. I'm Morgan Patrick. Pleasure to be on with the attorneys. And we are going to get into these hypothetical listener questions from all over the legal world. We'll get into that in just a second, but let's check in with the attorneys.
Josh, how was the week? It's been busy. I feel like, Joseph, I don't know about you, man, but I feel like. It's it's it's busy. Yeah.
That's the best answer I can give you, man. I usually see even. I usually before before we get in the studio, before we do the radio show, I usually uh you know try to clear my mind and think about you know some things to talk about and uh how life's going and and uh big picture stuff and uh I ain't got the time, man. Yeah. It's all small picture.
It's all what do I need to do today, this second, this hour. What's happening right now, man? It's just a blur. It's like, what was that? The old SNL.
Uh, skit. Deep thoughts. Yeah, he's deep. I love that. Deep thoughts.
Yeah, deep thoughts with Josh and Joe.
Well, my father. Not much. We're busy. We're very busy. You know what, my favorite.
Deep thoughts is, they're all good. If you ever get bored, they're all on YouTube. You can go back and watch them. Too busy. My favorite one is he took his, his kids wanted to go to Disneyland.
So instead of going to Disneyland because it was too expensive, he takes them to a burned-out warehouse and say, oh, Disneyland burned down. And then they just go home. And I always think that's the funniest one, you know. Just to get out of paying for Disneyland. You're sick.
I didn't write it up, Jackie. That's not wrong with you. That's my favorite one. We take him to the next one. That's my favorite one.
Tease the kids with a burned-out warehouse. Tease. Nice. But yeah, man, I've you know, we're always in the studio during the middle of the week and uh I just want to make it to the weekend. That's the only thing on my mind right now: making it to the weekend.
Weekend Warrior. Joe, what about you? Yeah, real busy. Real busy. Real busy.
Did catch. Catch some sports over the weekend. Caught America officially becoming the greatest hockey nation in the history of planet Earth. Yeah, Sunday brunch, 8 o'clock. Yep, it's official.
Yeah, I got up to it. I got up to check in on CBS Sunday morning and the hockey game was on.
So I was like, oh, this is a nice. Nice change of pace this Sunday morning. And it was, I caught it. I had to make my coffee and stuff.
So I didn't start catching it until like the third. The third period, and yeah, some of the saves our goalie was making that was crazy.
Well, and again, just an amazing win for the USA and been since 1980. And they get the gold medal, but the post- celebration when they brought out uh Johnny Godreaux's kids We saw the sweater come out, the 13, because he would have been on that team. And if you don't know the backstory, he and his brother. were home in New Jersey for their sister's wedding and they went out for a cycle ride. They were just riding bikes and an alleged impaired driver went around a car and hit them.
killing them both. And these two small children, the family made it over to the Olympics. I'm sure the Olympic hockey team wanted them to be there. And they went over, and those two kids were in with the mom, and the parents were in this. stands and they just went and got the kids.
Really crazy. Good stuff. Good stuff. What was the Miracle on Ice? Was that 80?
Was that 1980? Eight, it was to the date. It was uh how many six years? Yep, there you go, man. We were watching, uh, we watched just that Netflix documentary that came out a couple of weeks ago.
I don't know how long it's been out. It popped up on Netflix a couple of weeks ago for us, so we were watching it because my oldest wanted to watch it. And uh, They were asking me a bunch of questions about it, and I was like, Well, well, guys, I was four. I wasn't really into hockey.
So I don't remember much from the miracle on ice. It's hard to be into hockey back in those days around these parts. Outside of I'm sure you played some.
Some hockey video games on the old Nintendo. Yeah, I mean, there's so many. There's steel. Yep, yep.
So many nice storylines behind it. Obviously, Herb Brooks was played by Kurt Russell in The Miracle. If you get a chance to watch that, that's fantastic. Plus, they got Kurt Russell to come back and do the lead-in to the gold medal game. That's when I knew it was over for us, man, when I heard Kurt Russell's voiceover.
Yeah. I mean, just really kind of I mean, stars and stripes and go go win one for the country. No, I haven't heard that. That's what you're doing. Yeah, it's out there.
You'll enjoy it. But yeah, if you get a chance, go back and watch Kurt Russell as Herb Brooks in that The Miracle. And really just kind of brings it home for 1980. And since you were only four. And Joe, you weren't even here.
Yep, I was. Gestating. But just busy. Yeah, we weren't fully formed yet. Yeah, just just solid stuff.
And yeah, good stories.
Well, guys, we do want to get into Some listener questions. These are hypotheticals. They're from all over the country. And the first one, the mom promised me the house dispute.
So kind of build this up for us, Josh. What's going on? Oh, I gotta get it back in front of me. I had these questions in front of me here, and now they're gone. All right, so I can get us set up.
So, my mom had three kids. I moved back home in 2018 to take care of her after her stroke. I paid utilities, handled her appointments, and did all the yard work. She told me multiple times the house would be mine. Because I gave up five years of my life.
She passed away last year. uh and her will leaves everything equally to the three kids. Uh the house is the only major asset. My siblings want to sell and then divide the proceeds. I think that's unfair.
Do verbal promises mean anything? That's the scenario.
So, this happens a lot, right? This happens a lot where one of the kids. Move back home and uh and take care of an aging parent and uh And there's more here than just the question, right?
So the question is: do verbal promises mean? anything. And if you're asking that to a lawyer, Joseph, what would you think there? I mean... Yeah, they've got some value, right?
Like verbal agreements. in certain scenarios, legally speaking, can be, you know, have validity. Um they're not ideal. Obviously, they're not ideal. And uh Any time you can get something in writing, you get it in writing.
But it's not like a verbal contract is just automatically invalidated because it's a verbal contract.
Well, you're right. I mean, you're factually right. I think here in this situation, though, um, Do verbal promises mean anything in this situation? I think the answer is. No.
Right? You know, the will is going to control. I don't think any attorney is going to. You're going to get it. If this child who's asking this question, who moved home to take care of their.
Parents, and so I would, you know, I'm assuming they still live in the house, right? The parent has, the mom has passed. I assume the child who took care of her is still living in the house. The other two heirs are not getting any value from them being there. Um They're going to be a little irritated, but yeah, I don't think the verbal promise here does.
Squat diddly.
Well, yeah, and in this specific example, that's not the question you asked me, though. You said in the law, is a verbal agreement worth anything? And yeah, it can be. It can be. It can be.
You're right. It can be. So let me ask you this question.
So if it is. Hold its place. What if the verbal agreement was just between the mother and that one child? Do the other children if the other children didn't know about it? or they weren't present for that verbal agreement.
uh wouldn't they have a leg to stand on as well? Yeah. I'm going to let Joe take that one. Yeah, come at me one more time with that one. All right, so there's a verbal agreement between the mother and the child that stayed in the house to take care of her, but the other two siblings were not privy to the agreement, and then the mother passes away.
Uh if they weren't verbally present for that agreement, wouldn't they have a leg to stand on to, I guess, argue against it?
Well, yeah, I mean, and that's the thing about any verbal agreement, right? Like a verbal agreement is always, and this is why. They're not a great option, period, right? Like, even if the law can recognize a verbal agreement in some situations, of course, with real property, it's not going to help you, but. But say any kind of just a general handshake deal between people where there's a verbal agreement.
The problem with that is. It's always going to be a he said, she said thing, right? Like, it's always going to be. the testimony of these individuals and uh That Is it that can again be problematic because there's there's nothing in writing and uh It's not an ideal you know, it's just not an ideal thing.
So, uh Yeah, I think if this person comes in and sits down and consults with any attorney in this situation. The verbal promises here don't mean anything. You know, she can certainly tell that to the other. Her siblings and say, Look, you know, I moved in, I gave up this, I took care of. Mom, and they can certainly work out another arrangement.
But if we're just on the will, The will leaves it to everybody. The house is going to, you know, if the other heirs want to sell the house, the house is going to get sold. Uh so here Yeah, there's not a lot here. I mean, it depends on some other facts that we don't have, but based on this. Um I mean, I guess there's enough here, Joe, like you were saying earlier, there's enough here where you might be able to mount some sort of litigation, but I just.
I'm not seeing it. I don't know that there is here in this specific. Case, you know, I don't know that I'd say that there is.
So, the so the lesson, if there is one, you know, get it in writing. I mean, yeah, and that's for anything. You know, any attorney. Any practice area, they're going to tell you to get something in writing, you know. Um Or you're going to have to, if you don't have anything in writing, then you've got to people's court it, right?
Where it's just. Or judge Judiate, I guess that's the more judge Judiate, yeah, like that. You're just gonna be arguing in front of a judge, my word versus their word, and You never want to do that if you can avoid it. And it sounds like they had. five years here to get it straightened out, you know.
I know estate planning, we talk about that, right? Estate planning is something people always put off until they have to deal with it, you know. unpleasant sometimes. Just have to think about it. But putting it off doesn't help anything.
Nope. It does not. It did help with this. It didn't help this hypothetical lady. Um So she hypothetically has a problem.
Well, and and there are probably a number of people out there that might be in something similar to this. Make sure you're consulting with a legal professional, an attorney, and do this. Obviously, be proactive if you are The parent in this situation, obviously, before you pass, make sure you have an estate plan, make sure you have this will, make sure you have instructions as your family is going to move forward to avoid. Situations like this. We're going to take a short break.
We want to remind you. We do have complimentary consults on estate planning with Whitaker and Hamer. Also, Josh, are we going to expand that this week as well to maybe an auto accident?
Something's happened. You've been in a situation complimentary consult as well. Yeah, absolutely. You know, that or. Yeah, if you're in a car accident, give us a call.
Our litigation attorneys can assist you with that. Estate planning, as always, give us a call. We're happy to sit down with you for free.
So we got complimentary consults galore this week. All right, there you go. 919-77270000 is the number to call to grab one of those consults. Again, no cost and no obligation. See if you're on track with your estate planning.
And if you haven't started, you can get the ball rolling. 919-77270000. You can also visit the website wh.lawyer. Again, 919-77270000 for a complimentary consult on estate planning. And again, wh.lawyer, you can go there as well.
We've got more Judica County coming up. Again, these hypothetical listener questions.
Next up, the disappearing bank account. Stay right there. We are back on Judica County Radio. Your hosts are Josh Whitaker and Joe Hamer. They're the managing partners at Whitaker and Hamer Law Firm right here in North Carolina, and that's exactly where they practice law.
They have placed offices across our great state for your convenience right here in the Cap City Raleigh. We also have Garner, Cleveland, Clayton, Goldsboro, Fewquave Arena. Down near Charlotte in Gastonia and down at the coast, Moorhead City. I'm Morgan Patrick. Pleasure to jump on with the attorneys.
If you've got a question you'd like the attorneys to approach and answer on a future broadcast, you can send it to us. Questions at judicacountyradio.com. That's questions at judicacountyradio.com. Again, complimentary consults available, estate planning, possible audio. If you're in an auto accident and you just don't know what direction to take, what are the next steps?
Grab a consult as well, 919-7727000. That's 919-77270000. You can also visit the website, w.lawyer.
Next up, the disappearing bank account. My father had about $400,000 in savings two years ago. My sister had his power of attorney when he passed. There was only $15,000 left in the account. She says she was paying bills and managing things.
She hasn't provided statements. The will splits everything evenly between us. What rights do beneficiaries have to investigate a situation like this?
Well, you know That's unfortunate, you know. Um You know, when we talk about this, when we have a power of attorney, when someone has a power of attorney, For an elderly parent or someone, and they're managing the bills. Um you know, the the legal side of it is they owe a fiduciary duty. to that person. Right.
Fiduciary duty is a very serious Responsibility, you know, it's the same duty lawyers have to their clients. CPAs have to their clients, investment, you know, advisors, licensed investment. advisor.
So if fiduciary duty is this high Standard. And um You know, that's what this this daughter uh has to to her father. And and there may be no wrong Yeah. certainly they they suspect that there's wrong doing. Um But there there's no evidence here in our hypothetical That the sister has done anything, and I guess their concern is the sister has used.
Some of this $400,000 converted it. stole it To her personal use, right? I'm taking it, I don't know, that's what the hypothetical seems to. indicate is the other siblings want to know over the past two years where this three hundred and $85,000 went. Yeah.
Um And it You know, I I I would think if I was somebody's attorney, in fact, if I was their agent, if I was acting under a power of attorney. My advice to people is usually to keep good records and so that you can let everybody. See what happened. Right. That's my.
Anytime you're acting in a fiduciary capacity and there's other people that are going to be interested in how you're handling. Funds I, you know, good records is the way to prove everything, right? Um Because maybe she didn't.
Now, I would think if the father had gotten down to $15,000 left, you'd probably huddle up. all the siblings and like, Hey, Dad's only got fifteen thousand dollars left Um He's I mean, he's not gonna be able to pay expenses in the next Couple of months, depending on how he's living and where he's at. We need to, as siblings, all get together and figure. figure this out. Uh so the fact that didn't happen is kind of uh alarming.
And we're only talking about one other in this situation, hypothetical, only one other child involved. And so one was taking care. Uh the other was not. You know, I I think it's perfectly fair to you know, ask for statements. Um Where'd the money go?
And it may be legit. I mean, again, there may have been debt, there may have been things that needed to be taken care of. Uh maybe last um those last few years of Healthcare and long-term care, I mean, that could eat away very quickly at that kind of money, but Again, if it's two kids. and it's 400K Just show the receipts. And a lot of times this turns into You know, this isn't for the for the For the other sibling, the sibling that wasn't the POA.
Um They're not, they don't have a lot of legal. access or legal ways of requesting. Certain documents. A lot of times this turns into litigation between siblings. This turns into a lawsuit.
So you can use the discovery system to kind of get. Bank statements and things like that that you might not otherwise be. be privy to. But you know, unfortunately this happens This happens a lot. This is like our first question where You know, and that's my advice.
You know, we sit down with people all the time who were going, who are taking on that role agent. Uh attorney in fact. Uh, power of attorney for an elderly parent, and if there's siblings involved, that's usually advice that we give: hey. Um be be as transparent as you can with everybody, especially you know most fan I love it when I see a family where everybody gets along, but a lot of times there's always one person in the family that doesn't really get along with the family or always suspects wrongdoing, even when maybe there isn't any wrongdoing. And that's my advice for people, is to be as transparent as possible on on what's being what's being spent, you know, and um Kind of work together on that.
It doesn't always. the situation doesn't always allow that, but um Again, that's another tough situation. These are all really tough situations. He's kind of bringing me down. This is a real bummer.
Yeah, what's up with that? Uh yeah. And that, you know, that's part of being an attorney. You know, it's like. You get bummed out from time to time.
We do get bummed out from time to time because a lot of times, you know, we're helping people that have suffered. You know, we talk about car accidents, right?
So people who've suffered injuries that have changed their lives, or people are coming to us because, like, the person here, they suspect maybe a sibling is stolen from an elderly parent. And. you know, now that the elderly parent is dead, that's that would have been their their inheritance or or what have you and um Anywho, tough situation to be in. That probably. We probably do some help the client do some fact finding and then that probably devolves into some si some kind of litigation if they if uh we still suspect wrong doing there.
Well, and and it goes back to, you know, What was the father doing, obviously, before you know, he passed away and and having an estate plan and having it mapped out and having it in writing, as we always say, with the overall plan, that might smooth this out somewhat. But there are a lot of question marks and obviously possibly, hypothetically, Uh these the these These two kids don't get along. And I don't even think that's hypothetical. I think that's pretty clear from the facts. Yeah, it's it's it's true.
It I mean, and again, this happens.
So overall message, guys, you know, make sure the estate plan is in place. That that therefore you avoid these kinds of headaches. All right, so let's get to this next one. And again, these are hypothetical listener questions from around the country. The holdover tenant who will not leave.
Here's the situation. I sold a rental property. The contract required the tenant to vacate before closing, but guess what? They didn't. the buyer still closed and took title.
Two months later the tenant is still there and has not paid rent. The buyer says that I'm responsible because I guarantee delivery of possession. Am I still on the hook here? That's the scenario.
Well, this one's easy.
Well, this one's not easy the way it took place, but if you're buying. Investment property, if you're buying property that you're going to rent, that you're going to lease. And there's a tenant in there. And you don't want that tenant. You know, um you gotta get that cleared up before closing.
Most of the time if you're buying a rental property And there's a tenant in there, you're Usually, you're pretty happy, right? Yeah, that's a good thing. That's what it is. It's leased-out property. I'm sure before you bought the property, part of your due diligence was maybe you know what the tenant's been paying, you know the length of the lease.
Um, and so usually that's negotiated, right? If you're gonna. If the tenant's gonna stay or you want the tenant gone, that's all gonna get, that's part of your negotiation with the seller of the house, you know. Because sometimes people sell rental property and the tenant, they don't really charge market rent. Or the property's in bad shape, and the tenant's not taking care of the property, and so.
But that's a discussion that happens before closing between the buyer and the seller. Of rental property. But here, I don't know why the buyer would close. on on property if the tenant was supposed to vacate in in Hatton. That's That's the problem here.
Yeah, and normally you won't you don't see that, right? Because normally. I'd say generally. When you've got a buyer that's sophisticated enough to be purchasing rental property, they generally have done their due diligence. They know the deal.
That's the type of thing that they're going to suss out ahead of time. But yeah, if you get if you have someone that gets into that scenario You're right, man. Yeah. time beforehand.
So Yeah, and so this buyer maybe got bad advice. Maybe this buyer wasn't sophisticated.
So this buyer took title with this tenant. That I'm assuming he didn't want. And there's some important things left out of this hypothetical because now the new question. This buyer has gotten themselves in this trouble, bought a piece of rental property with a tenant they don't want. Is the tenant paying rent?
Has the buyer been accepting a rent from this tenant? I'm going to assume the answer is no from the question, but it doesn't spell that out because that's a new wrinkle, right? If the buyer has been accepting a rent from this tenant, then. I don't think I think the buyers just Got problems. Yeah, the buyer's.
Yeah, if there's a, yeah, that's the thing, man. A preexisting lease, you purchase property. If someone's got a good lease, they've been meeting their obligations under that lease. The fact that you purchased that property doesn't invalidate their lease. And, you know, their contract with the person who sold to you, you know, you're essentially taking that over.
You know, whether there's a formal assignment or not, you can't just invalidate it. And one thing about. Landlord-tenant law is the law, generally speaking, is very favorable towards tenants and keeping tenants from being just booted out on the street.
So You gotta be real careful if you're a landlord in any situation to make sure that You're not. doing something in violation of that law. The only way a landlord can get rid of a tenant is through an eviction, right? Either the tenant, you tell the tenant to leave, and the tenant voluntarily leaves, that's one way. Or The tenant has to be evicted, and the tenant can only be evicted for certain things: non-payment of rent.
You know, there's other violations of a well-drafted lease that a tenant could be evicted. But yeah, like Joe said, the. Evictions are usually in most North Carolina counties are done in small claims. Small claims is heard before a magistrate, and I say magistrate because that's not necessarily a judge. That's not necessarily someone who's been to law school.
A magistrate does not dude a lot of the time. Yeah. Or a lady. Just a guy or a lady. And so it's a lot less formal.
Back to that. I've talked about people's court twice today. It's people's court. And um And so, anyway, it seems to favor the tenant.
So, if you're a landlord and you're filing eviction, you want to make sure all your I's are dotted and your T's are crossed because I think. Most people don't want to. Most magistrates don't want to evict. A tenant, unless the law, and they will if they have to, right? I mean, if you've done everything you're supposed to do as a landlord, I mean, I'm not saying they're not looking at the law, but.
you know. No one wants to. You know, kick a family out on the street if they've paid their rent and they've done everything that they're supposed to do. We are in the middle of some listener questions, hypotheticals from around the country, and just finishing up with the holdover tenant that will not vacate after a property's been sold to another landlord. We are going to switch gears coming back on the other side.
We'll stay with some real estate, but a different question for the attorneys. Want to remind you that we do have complimentary consults in and around estate planning, a possible accident where you're injured in an automobile accident. We can also provide a complimentary consult as well. Simply call 919-7727000. Just talk about next steps.
919-7727000. No cost, no obligation. You can also visit wh.lawyer. We've got more Judica County coming up on the other side. Judica County Radio, hosted by Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, right here in North Carolina, where they practice law.
They have placed offices in Raleigh, Garner, Cleveland, Clayton, Goldsboro, Fuque, Verina, Gastonia, and Moorhead City. For your convenience, I'm Morgan Patrick. Pleasure to be on with the attorneys. We are doing hypothetical listener questions that are out there, and these happen every single day across our great country. And how would the attorneys handle it?
And if you hear something that's kind of what you're going through, but you want like more precise information or advice when it comes to possible legal direction, you can send us your question, questions at judicacountyradio.com. And on a future broadcast, the attorneys will take a look at it. Questions at judicacountyradio.com. And again, comment. Company consults, estate planning.
Maybe you've been in an auto accident, don't know next steps. Grab one of the consults, 919-77270000. It's 919-7727000, or visit the website, wh.lawyer. All right, so next scenario, next hypothetical. The jointly owned property breakdown, guys.
Here it is. My brother and I inherited some land, fifty, fifty, from our parents. There's no agreement between us. I want to sell. He wants to hold it and maybe build some day.
I can't afford the taxes alone any more. Can one co-owner force a sale? Yeah. This is an easy question, man. This is uh Yeah, if you own property.
With another person, me and Joe, you know, talk about this from time to time in North Carolina. As an individual. Holding property with another individual, there's a couple of ways you can hold property. The basic default Way you can hold property if me and Joe and Morgan all own a house together and there's nothing on the deed, the deed is silent. The law says we own it as tenants in common, meaning we all own one-third.
And if something happens to Morgan, his one-third goes to his heirs.
Something happens to me. You see this with a lot of family property that's been in the family for a long time that was just owned by like three brothers a hundred years ago, and then they start dying, and all of a sudden you've got 48 owners instead of three because everybody's inherited their respective one-third generation after generation after generation. And so that's That's the default. You can also own property as joint tenants with right of survivorship. meaning, if Morgan were to pass away, me and Joe, and not his heirs, Inherit his one-third, right?
So, tenants in common is the default. That's the way most people own property. Your share goes to your heirs when you die, joint tenants are right at survivorship. The current owners of the property just keep the property and the last one alive. It's kind of like last one alive wins, right?
If you own, if we all own a house, joint tenants are right at survivorship, and I'm the last survivor. I get the property and then it'll eventually go to my heirs. But here in this situation, when you inherit property, More than likely, you've inherited it.
So, me, Morgan, and Joe all inherit property. We own it as tenants and commons. We all have our our third. And there's laws in North Carolina, right?
So if I get outvoted. Let's say I decide I want to sell the property. It's like this property is of no benefit to me. I want it sold. And in Joe's like, Josh, you're dumb.
Yeah. That sounds like me. We're keeping this property. Morgan's like, yeah, Josh is super dumb. I agree with you, Joe.
We're going to keep this property. You're not. You're not done. Like, I'm not done. The law allows you to file a petition.
So without a majority agreement, I can force a sale. Of the property. And majority agreement, like, you know, in your scenario, Josh, there's three of us. Two of us want to sell, one of us doesn't. That majority is irrelevant for that sale, right?
Because if w if you've got one person abstaining without some kind of action, it ain't getting sold. And I don't think this is widely known. I know we end up talking about it a lot because we get these listener questions and these hypotheticals, and we kind of talk about it. But when I talk to the general public, when they have a people who schedule consults with me because they have this exact problem. and they think they're stuck.
And like, hey, I'm not getting any benefit from the property. I don't, you know, here they can't afford the taxes anymore. Because if you've got non-income producing property, those tax bills and insurance bills add up. year after year after year. You know, that's that's one of the reasons, um Well, either way, it adds up.
And you have a statutory right. to force A sale.
Now, there's some negatives to forcing a sale, right? The court's going to control the sale, the court's going to pick the real estate agent. It's gonna go on the market when it goes on the market. May not be a good time to be on the market, may be a bad time. Um But it's that's going to you know a sale's going to be forced.
And so that's your nuclear option, right? If me, Morgan, and Joe all own a piece of property, they should work with me more. Because at any time I can just blow it up and say s I'm gonna file a petition to partition and we're gonna sell this property and I don't care how dumb you think I am. Yeah. Right.
So when you own property as a group like that, there's always that incentive. To work together and try to find a solution that benefits all the property owners. If you have a property owner who's telling you, like, hey, I don't have enough for taxes. This is a burden on me. Um and maybe you can all come together and Yeah.
work it out, otherwise that one person you could have 28 owners. One person can force a sale. Yeah. Um. And, like I said, I don't think a lot of people know that because a lot of people feel trapped, feel like, you know, the oldest sibling or is pushing them around or.
But that's uh that's kind of the nuclear option. That doesn't always guarantee you're going to get the highest dollar on the sale. There's some. And you gotta, there's some extra fees, right? Usually, you're gonna have some attorney fees you wouldn't normally have in a sale.
You know, there's things to consider, but. Yeah, you can definitely go nuclear.
Now that doesn't work if, let's say... We say me, Morgan, and Joe all form an LLC, the Joe, Josh, Morgan LLC, and the LLC buys a piece of property. A petition to partition doesn't work in that case because there's only one owner. It's the LLC.
Now, we may all still disagree. And we have to figure out in the LLC docs how we figure that out. If we all own it individually as tenants in common. Petition to partition. Very powerful.
tool if you find yourself in that. In that situation, yeah. The jointly owned property breakdown, the hypothetical scenario, I did notice that I was killed off almost immediately. Yes. In all of the situations.
Well, that's the thing that would make us the most sad. That's right. What's the worst thing that could happen? Yeah, we wanted to really simulate tragedy loss. Morgan dies.
Morgan dies. Morgan dies. All right.
So here is our next. I think every, Morgan, sorry to interrupt you. Yeah. I think every hypothetical, even if we don't have to kill anybody off, we can start killing you off. Yeah, you got to go.
Morgan's not a part of this, but he has died. He is the older tree in the forest. We will, we're just going to, that's our starting point, man. Every fell him. Yeah, every fellow dead.
Judica County Radio, Josh Whitaker and Joe Hamer are your hosts, managing partners, Whitaker and Hamer, law firm, practicing attorneys here in North Carolina. And again, comparing consults in and around estate planning, maybe an auto accident. You don't know how to proceed. You can grab one of these consults, 919-7727000. That's 919-772-7000.
Also, visit the website wh.lawyer. You can get signed up there as well, wh.lawyer. All right, so here's the next one, guys: the trust that was never funded.
So, my parents created a revocable trust years ago. We found it after dad had passed away. The trust says the house should go to me. and investment accounts to my sister, uh but the house was still titled in his individual name when he passed away. Do we follow the trust or do we follow the will?
I don't I don't particularly care for this question. Yeah. So, Morgan, we're going to start off. Morgan dies. Morgan is.
Yeah, that's our starting point. Morgan has passed away, and we're all.
So, I can't repeat the scenario. And we're too sad to answer the question now. We're taking some time to get out of chill free card. We're taking some personal time off. No, no.
You know, we see this, right? People, her parents did their estate plan, which is great, right? They got to an attorney. They did the beginning part of their estate plan. They had a trust.
drafted and here it is Yeah, yeah. And uh it doesn't seem like and and I don't know why this got separated, and I guess there's all kinds of facts because usually you do this all at the same time. But they had this trust done and they did not deed their property into the trust. I've said it on the show a lot: you know, a trust. When you have a revocable living trust, it's kind of like you've created this magic.
Magic bucket, right? And this anything you put in this bucket is gonna survive probate. And then be handled by the provisions of the trust. That's what funding of the trust is: it's putting things into this bucket, it's putting things into this trust. Nothing automatically ends up into the trust during your life.
You have to take an action, you have to draft a deed, an attorney has to draft a deed, you have to update beneficiaries with the bank. Nothing automatically gets in a trust.
So that's why we talk about funding a trust and what goes into it. Um and usually we do that. when you sign the trust. We put things into the trust that we know of. And as you go forth in your life and you acquire more things or you buy and sell real property, you have to keep this in mind.
If you have not taken an action to put it in the trust, it's not there. And that's what happened. These folks died. Owning a house that never made it into their trust. Um Now, I would imagine Joseph, I would imagine when they did their trust, their will should be a pour over trust, right?
So when you have a trust and you've gone through all this trouble to set up a trust. Usually your will It says leave everything to my trust. Yeah, and that's kind of a catch-all and that's something that we do. Um You know, that's that's a thing that that that we do frequently. Um And uh You know It's advisable, right?
Like, that's the catch-all. You don't want to have this fancy. Super fancy trust that you're 'Cause it's only as like you said, man, it's only as good as the funding of the trust.
So in the absence of funding the trust, Yeah. it it's kind of not serving any purpose, right? And and That's the thing. You want to make sure that You get these assets into the trust.
So that you can actually get benefit from this nice fancy trust you've paid for. And um That's like step one when you when you do this part of this process. Yeah, this hypothetical is like a complete failure. Of the estate planning process, because if they have a will. That has different provisions than just leave it to the trust.
If you've got a will that says leave everything to these people, and then you got a trust that never got funded that says leave everything this way. That's an epic failure. of an estate plan. I know we're coming up against a break, but I just wanted to point out This should not happen. If an attorney was involved, this you shouldn't this poor person shouldn't be getting here.
We will continue with hypothetical legal scenarios that come up every single day across this country, and you might be in a similar situation. Remember, you need to have professional legal direction Certainly, grab one of the complimentary appointments in and around estate planning, or possibly you've been involved in an auto accident, don't know how to proceed. You can grab one of these consults. Again, no cost, no obligation. 919-7727000.
The number to call. That's 919-77270000. You can also visit the website, wh.lawyer, wh.lawyer. We've got more at Judica County coming up. We are back on Judica County Radio, hosted by Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer Law Firm and practicing attorneys here in North Carolina.
Offices all over our great state: Moorhead City, Fuquay Verena, Gastonia, Goldsboro, Clayton, Garner, Cleveland, and the Cap City, Raleigh, North Carolina. I'm Morgan Patrick. Pleasure to be on. We're doing hypothetical. These are listener questions from around the country and how the attorneys are going to handle them.
That's the big question.
So, the next one is this: the LLC without an operating agreement.
So, three of us formed an LLC 10 years ago to buy small rental properties. We never signed a formal operating agreement, just filed paperwork online.
Now, one member wants out and demands that we buy him out at today's market value. The other two don't have. the liquidity. What controls are here?
So, this is these people, these people all have problems. Such easily preventable problems. Um It makes me sad. Shame on them. Mm-hmm.
Making me sad. I don't go to their place of business and make them sad. We'd have no listener questions without these problems, though, man. That's true. I'm assuming I'm the third party that wants out.
Am I dying at any point? No, scenario. Big time. Yeah. So we're going to start.
As always, Morgan has passed. Morgan dies in a tragic donut eating accident. Wow. It does have to be the most embarrassing way possible. It's got to be, that's what it is.
It's that. Yeah. All right, so I tell the, so you know, we help a lot of folks with their. uh businesses, they're LLCs, they're corporations and um A lot of people have figured out people are smart. People have access to information these days.
They didn't have access to. You know, 20, 25 years ago, 10 years ago, five years ago.
So people know. That if you want to form a North Carolina LLC limited liability company or corporation, you can file articles. of organization or articles of incorporation with the Secretary of State's office, pay the filing fee, and the Secretary of State will send you a nice little. Uh form saying that Joe Josh Morgan LLC has been formed. It exists.
Legally, and you can use that, and you can pull an EIN number from the IRS. And then you can open bank accounts. And you can get down to business, you can file taxes, and so you can get started. But that's not the whole, that's not everything you need. And a lot of people.
will get themselves in trouble. Because they have not taken the time to draft, or have an attorney draft, or have an attorney review. If it's an LLC, it's an operating agreement. Most people, this is an LLC question, so I'll just talk about LLCs, but you basically have an operating agreement, right? When you file your articles.
At the Secretary of State's office, you haven't really, that's just the skeleton. That's a story. Yeah, that's, yes. You've got an entity, but you've got no formal governing. You've got nothing that's really governing you as an entity.
There are statutes in place, right? The North Carolina, North Carolina has statutes that help. Settle disputes between members and things like that.
So there's some statutes that you kind of have as a backup. But what you should have Is an operating agreement. And a lot of times, maybe a lot of banks have started to ask for operating agreements before they open. A bank account so they can verify who's supposed to be able to sign checks and things like that. But the operating agreement will say who the owners are.
If there's a manager, you know, it'll say who the manager is. It'll say what members can do and can't do, right? Can one, can Morgan go and sign off and sell all the assets of the LLC without me or Joe's signature? And one of the big things it's used for is: how do you settle disputes? How do you set a deadlock?
How do you settle disputes? Do we have to have unanimous Consent to liquidate and dissolve, or if Morgan wants out. How do we handle that? Do we have a right of first refusal? Is there a prescribed mechanism for a buyout?
How is that paid? If the members aren't liquid, like if me and Joe can't afford to just do it with cash. It also handles things like You know, Morgan has a tendency to die in these things today. If Morgan's dead, How do we buy out his heirs? Do his heirs come in as a full member?
Um so all these things are handled in a in a standard operating agreement. And I can't tell you how many times I've sat down with people over 23 or 24 years now. that are having a Business ending dispute. And they can't settle it because there's no operating agreement. And we're just reverting back to the stat, you know, the bare-bone statutes that protect.
Members.
So think about it, especially if you're going in business. You know, sometimes you're just setting up your own LLC and it's just the Josh LLC, and I'm just the owner. And I'm a little less concerned about some of these things, but Um if you've got multiple business owners I think you have to assume at some point you'll have some kind of dispute. Maybe it won't be nuclear and end the whole thing. But you're gonna have a dispute about dispersing profits.
Sometimes you have to do capital calls, right?
Sometimes the LLC needs funding, it needs money. How is that handled? If one of the members can't come up with the money that the LLC needs.
So, an operating agreement is very important. Here, there was no. formal operating agreement, that's what caused the problem. Um And so this is going to be litigated. That's what's going to happen to this hypothetical.
There's going to be a litigation if they can't come to an agreement.
Well, we have one more scenario we're going to throw at you in the next segment as we wrap up the program. Opportunity to get a compromise consult is right now with Whitaker and Hamer in and around estate planning, maybe an auto accident, don't know how to proceed. You can grab one of these consults again, no cost, no obligation. 919-772-7000. Sit down with an attorney and talk about it.
Again, no cost, no obligation. 919-77270000. You can also visit the website wh.lawyer. Final segment of Judica County coming up on the other side. Judica County Radio, hosted by Josh Whitaker and Joe Hamer, Managing Partners, Whitaker and Hamer Law Firm, the power behind this program, and they both practice law here in North Carolina.
Offices placed in Raleigh, Garner, Cleveland, Clayton, Goldsboro, Fuque Verina, Gastonia, and in Moorhead City. I'm Morgan Patrick. If you've got a question you'd like the attorneys to answer for you on a future broadcast, you can certainly send it to us. Legal questions, again, questions at judicacountyradio.com. That's questions at judicacountyradio.com.
All right, so final scenario, guys, is the step-parent estate shock.
So my dad remarried late in life. His will leaves everything to his new wife and then to me after she passes.
So, dad passes away. Stepmom changes her own estate plan to leave everything to her children. Is that allowed? I don't much care for this one either. Yeah.
You picked it. Yeah. The uh Yeah, we talk about this, and this question will be hard to answer because there's facts that we don't have. Because we need to know how the dad structured his estate plan. Was this in a trust?
Was this just a will? Are we talking about real property? Are we talking about probate assets or non-probate assets?
So we can't get too specific on this one, but we talk about this a lot. If you Remarry, which happens a lot, right? You have kids. Spouse dies, divorce, you know, whatever it is, and then you later remarry, your antenna need to go up. And figure out how you're going to provide for your new spouse after you die and your adult children.
Because you're going to need an estate plan that takes that into account. Because if you. Again, this depends on how you own how your real property is titled. Um how many errors you have. Um But you can clean all this up Early.
Um If not, you're going to end up disinheriting You could end up disinheriting some children by accident. Um you you know you You gotta figure it out. Yeah. You gotta figure it out. This is the biggest, I think this is one of the biggest messes.
We see Once you've passed away. Once you're passed away, if you go get an attorney to help with an estate, we call that estate administration. And when we're administrating your estate or your trust, this is one of the bigger problems that we see. is You got remarried. It's the Brady Bunch.
We went over this, right? We did. We did. When we did the Brady Bunch and we did their estate plan, this is the mess you can get into.
So you need to, and you may not have a lot of assets, but between life insurance and your home, if you want to provide for your children and your. Second spouse. You gotta think about it. You gotta planning. There needs to be planning.
You gotta think about it. You gotta plan it out. Because in the absence of that, you're. you're gonna have Some trouble. Right?
Yeah, especially you know a lot of times it doesn't happen consequences. A lot of time You know, I A lot of time, your adult kids may not really get along well with your second spouse.
Sometimes they do, sometimes they don't. But a lot of times they're you know they're not family. And um They're going to be looking at each other when you pass away to see where these assets are going.
So it's. You know, it's a conversation you want to have. You want to have a plan that gets executed when you die so you don't accidentally disinherit your kids. Ah. Because I've seen it happen.
Yeah. Well, being proactive, you guys talk about it all the time and having that plan in place. Opportunity to grab one of the consults on estate planning. You can certainly do that at any time during the show. And we're about to wrap up.
919-77270000. Call that number and secure one of the appointments. Again, you're leaving the checkbook at home. And again, there's no obligation to become a client, but this is kind of a get-to-know you and also direction as far as what you need to be doing when it comes to estate planning. That's 919-77270000.
You can also visit wh.lawyer. The other way, too, if you've been in an auto accident and you just don't know how to proceed, you've got a lot of questions, grab one of these consults and they'll talk to you about it. They'll walk you through it. 919-77270000. That's 919-7727000 and WH.lawyer.
Guys, just some closing thoughts as we wrap up the show. Josh. We talked about the USA hockey team winning. We started on such an upswing, busy, lots of stuff going on, and uh.
Now, I just want to take a nap. I can't take a nap right now, though. Nah, we got to take a nap. We have to do that. All right, Joe, final thoughts, go.
Um yep. Yep. Yeah. Depressing in some ways. Busy.
Yeah. Real busy. Morgan, why haven't you passed away already? What's going on? You're still here.
Yeah. Still a fan of you, Morgan, personally, on a personal level. I'm not a big fan of Broadway, but we should do some kind of musical that's just these hypotheticals, like every act. It's like a legal hypothetical. And then we just come on in the end and then we sing.
Sounds like a billion-dollar idea to me, man.
Sounds like a train wreck. All right, on that note, the train is pulling into the station. And Judica County, this edition is in the books for Josh Whitaker and Joe Hamer. I'm Morgan Patrick. Just want to remind you, real quickly, opportunity to get a complimentary consult is right now.
You can call Whitaker and Hamer 919-7727000. That's 919-7727000. And you can also visit the website wh.lawyer. Estate planning, maybe an auto accident, needs some direction there. You can call 919-7727000 or you can visit the website WH.lawyer.
Another edition of Judica County in the books. For Josh and Joe, I'm Morgan. We'll see you on the radio next week. Judica County is hosted by attorneys licensed to practice law in North Carolina.
Some of the guests appearing on this podcast may be licensed North Carolina attorneys. Discussion on this podcast is meant to be general in nature, and in no way should the discussion be interpreted as legal advice. Legal advice can only be rendered once an attorney, licensed in the state in which you live, has the opportunity to discuss the facts of your case with you. The attorneys appearing on this podcast are speaking in generalities about the law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of this show, you can direct such inquiry to Joshua Whitaker at jmw at mwhlaw.lawyer.
