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The Importance of having an Estate Plan

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
January 7, 2022 5:00 pm

The Importance of having an Estate Plan

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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January 7, 2022 5:00 pm

The Outlaw Lawyer looks at Estate Planning this week. The importance of having a will. What is a trust? and should it be part of an estate plan? Powers of Attorney are a big deal and the Outlaw Lawyer breaks it all down on this week's episode.


If you have your own question about estate planning you can call Whitaker & Hamer 800-659-1186. Leave your contact information and brief description of your situation and an attorney with Whitaker & Hamer will be in touch.

law, Estate, Planning, Attorney, Trust, Will

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As we go about law lawyer join talk about estate planning the new year. Lots of questions we got answers on the air. Josh Whitaker and Joe Hamer are your holes there. Also, the managing partners at Whitaker Hamer law firm 46 combined years experience and they have offices in Raleigh, Garner, Clayton Goldsborough, Fuquay Marina and Gastonia. They are practicing attorneys here in the great state of North Carolina. It's been a couple weeks but hey man were back in studio guys. How was your break Morgan.

It was it was good. I can complain.

It was a good Christmas.

It was a nice relaxing new year but were in early January. Now in its ceiling. Everybody did, and yet sometimes we have a lowland range general business around the holidays in January that Lowell, like a hangover from the holidays and so we see the first couple weeks of January, slow on the transaction front, but from everything I can see mice chugging along. Joe how was your holidays hey Josh, everything is good is it was great lot of time spent with the family a lot of time spent relaxing taking it easy, warm weather man very warm weather so we got to be outside a lot more than you normally would. During this time of the year and and I got no complaints other than I could've done with even more downtime. Honestly, we know what is that what is the old adage, a body in motion stays in motion. So once we finally start slowing down actually hard to get it moving and I'm not talking about like a gym like exercise, just in general it is the old adage essay that all I say that at least six times a day. The body in motion stays until just walking on the street. Give him a nod and a wink can't stop to talk to your hat well have the glass you guys know we haven't been together in a while but I know is adult. You don't get a ton it just right and Christmases is for the kids. We might get a gift that was there was her favorite something worth reporting back on the job. I'll take this one and the best thing I got and how I want to say I could be having déjà vu. We we talked about biscuits we got. I want to say we discussed this in the past episode, but I got a pair of very cozy walk around the house, bedroom slippers, very fuzzy. I don't know what animal is on the inside look for it is but really good to my feet and I gotta say, that's that that's the best thing I got and for all the animal rights activists out there listening to the show. It was probably faux fur house 100 definitely definitely found a workflow animal. It was there you go there and I got some golf stuff. I got slacks got new golf shoes and then immediately went out to the day after Christmas and shot 77 over Greensboro so I was all well and I had a we had one of those incredibly warm days and it was just absolutely perfect and I hit the ball extremely well. It was insanely warm. We had a couple of days down at the lake was really tempted to try to get in the water. Although I know it's way too cold but it was so warm he felt like he could hop right in. But Christmas Christmas was good. I got a book only gets a secret.

I do enjoy occasionally watching some wrestling as I got a cookbook. It was bleacher door is a list your cookbook, so is every bleacher door every Mexican wrestler's favorite recipe and so was actually signed by them didn't did I know that you are big wrestling fan. I don't know if we ever talked about that don't really think so you keep it. Keep in mind that you know I think favorite favorite wrestler of all time. I grew up glad group in North Carolina so I think you have to flare yeah flare on Anderson is one of those guys I think flares flare is a tough one these days.

Manny had a lot of negative negative PR and press lately, but yeah yeah we we had that episode. Talk about separating the artist from the art and I think you gotta do that with flare and one of the all-time greats on unquestionably gotta get a good flare store.

It'll it'll take just a second. So when I came out of college did an internship with CNN and it was probably my junior year at Carolina and worked at night and on Wednesday nights when I first got there we CNN was underneath TBS studios for the before they moved to the Army, which they did. That summer, and I got to work in both places, but we're TBS in the basement. No windows in every Wednesday night. I mean it was like a thunderstorm like holy cow what is going on out there know we have gone to the south of this is crazy and and and God looks at me. My my my supervisor has come with me. We were in our blazers and our ties and we walk up the backstairs we walk into this control room and it is TBS's wrestling studio right above us hope so. The thunder on Wednesday nights was there TV taping and had a small crowd. They had the miniature ring and they had the. The group of wrestlers and they discussed how everything was indigo was standing there and I was blown away because I am colic you just like I grew up watching some of the old school wrestlers. The next thing I notice is there some extent next me to go out into the ring and its player and he's wearing Aqua he's got a complicate past boots and I had a tile on and had a mustache.

The time is only 19's. I guess a little older and he looks meaningless. We think he was asking me to judge his wardrobe, thinking I was a suit and I said Rick I like it but man richer color and he went and changed them out in all red and totally kicked you know what in the ring and came back minds and thanks that's fantastic reporters going no tea in you it's it's very topical to could you mention TBS and you know wrestling was big on TBS for very long time. There's been no wrestling on TBS since I believe March 2001. Wow, and as of the time of this recording wrestlers back on TBS tonight on Wednesday nights. If like were should be paid advertisers for it, but wrestling comes back to TBS tonight when I get for not getting it at wrestling add money. I think it should be 805. Thing is, when it should start. I don't know what the time is that it's got a come on board and then when it came back they like 605705 never started at 7 o'clock or 6 o'clock.

It was always 05 I wasn't born but that sounds right. From what I was. I was never a huge should Shanda had neighbors that were really into it and my parents limited my television back in the day so like on Sundays I go down and and and they would watch wrestling I went to Sunday afternoon on one of the super channels and and was able to watch it there but yeah very entertaining and in a course. It grew into this. This mega monster that it is now, and I'm in Ming. There's just generations of kids are grown up watching pro wrestling anyway. It's an interesting dynamic to our society.

Well, that's kind of an odd topic for us here on out long I talk about just about anything but what I really want to talk about. It's it's a new year. I wanted to have another themed episode will retake our listener questions and we can put them some similar ones altogether and so new year is a good time for estate planning. A lot of people were thinking about the year setting. Their goal setting their priorities. Adding this is a really good time.

We talked about estate planning here. There on past episodes and passing, but we never had a whole episode dedicated to it.

So this is the outlaw lawyers listener question episode dedicated to estate planning. So we got for listener questions all have to do with wills, trust, power of attorney's health care power of attorney's and so that's what were going to do today run through those and get some information that might be helpful as you think about reevaluate but estate planning.

Again we we talk about a lot of things in the course of my my other career you were talking legal here with the outlaw lawyer, but estate planning is a big part of other discussions that we have in it so very very important to always come to go back and look at your beneficiaries and are you guys can talk about that I come out during the course of the show but it's it's very very interesting. So if you have not done estate plan. If you haven't gotten things in order. Listen up, there's going to be an opportunity for you to get in touch with Whitaker and Hamer.

You can call 800-659-1186 if you got your own set of questions. It's about estate planning, or some other legal issue, just leave a message. Your contact information and briefly what it's about is not an attorney with Whitaker and Hamer will be in touch with you can also send questions to the program that will use, like this on future programs. Next questions ask the outlaw this and visit the website and it's very simple. The outlaw and I you kick the tires there guys. I know we got a lot to get to.

So it's of the estate planning from wire-to-wire. Glad you guys had a great holiday with back. They have garnered Clayton Goldsborough Fuquay Marina and Gastonia.

We talk legalese each and every week and working to get into estate planning this week so take some notes if you got any questions about your own estate plan. You can certainly call the firm at 800-659-1186. That's 800-659-1186 and attorney will be back in touch with you shortly. Also, you can send questions to the program fellows estate planning very very important.

It is important Morgan estate planning normal to do it you not tell people graduate from law school back in his admin 0303 I graduated from law school, which doesn't seem like that that long ago but is 18, 19 years ago now.

I guess at this point, but it took me six or seven years to draft my own estate plans. There's no fees involved. I'd have to go meet with anybody.

I was an attorney drafting my own estate plan.

It's a long can answer all the questions I needed answer and and and do it and and that's too long. There's no excuse for that. I tell people that make them feel better when they ask people you know have estate plans and in which you get one done. You feel so good that you took the initiative you got it done. You went met with the attorney. Everything is notarized. You got your originals in a safe spot then you not done this, like life insurance and like your investment portfolio. You're never done. It's never something you check off your list and it's just over you have to review it annually you every couple years. When you have a new kid when a kid turns 18 there's all kinds of reasons to to do a quick review of your estate plan. If you don't have one already, but but you get estate planning yet I do.

It is our first question today is kind of boiled down from a bunch of listener questions we had as I just try to I just simplified it, but do I need a will access the listener question is coming, spark our conversation.

Do I need a will Joseph what you think their Josh as someone who is very qualified to answer this question. The answer is yes thank you guys are listening to our show that good night yeah know it's simply put, it's it's it's yes and that's it. You know that's like you said Josh. You kinda have to look at this sequentially and were worse at the starting point is you know the initial preparation of your estate plan, which ideally you're going to do sooner rather than later when you're little bit younger and I think that that will piece is is much more essential for for folks who are younger and as you get older you know it may kind of with with smart estate planning and with intelligent you know prepared planning where you come back and revisit your estate plan. The will may become less essential as you kind of use some other vehicles to avoid the probate process altogether. But early on I think it's essential that you have a will and and really everybody should have one so happy I don't have like one estate planning speech that I give everybody I meet with you know estate planning is really something from attorney's perspective, you sit down with people and you can listen to where they're at in their inner life's journey writes a good looking so young people with young children. We talk about certain things that were meeting with someone who I consider myself an old man at this point, but if were talking to someone whose children of Reno left the house and your kind that retirement phase, we have a different conversation, so this is no one-size-fits-all estate plan enters multiple things to think about.

It's been so how many assets you do have. You don't have worried about debt, you know, when you pass away. There's there's all kinds of factors that go into the discussion again. Should I have a will. Short answer is yes, but the long answer is yes, but for different reasons. Depending on your circumstances. You know what I think the biggest thing I would tell folks maybe our listeners is your you got young children need a will for a lot of things because the wheels were you kinda sad he will you know your guardian of your kids to be right. So if you're always uses the example for talking to a couple that has kids and something happens to both parents at the same time at or about the same time will how are you and take care of your underage kids.

Yet, we have to you know you want to go and decide and put your you want to be the guardian of your children. That's really the biggest thing that's really what is a lot of things at the biggest thing for couples or people who have younger children under 18 children under 20 want like extraordinary team for guardianship best. The biggest thing and you would be surprised how many couples do not agree right away, at least on who should have custody if something happens to both of them at or about the same time Nesta is the biggest hold up IC for younger younger folks get their estate plan yet and you said it well it's it's very important and we all want to maintain some element of control like you don't want your summary, I guess you could take the position while I'm gone. I don't care let it let it shake out how it will, but you can get such added peace of mind by having these difficult conversations. Knowing what's going to happen and and it's really you the estate planning. It's for you to an extent.

As far as giving you that peace of mind and in giving you some comfort while you're alive know when that your affairs are to be handled as you like them to be in the manner that you want to handle but it's more so for everybody that you leave behind, you know it it's gonna take the guesswork out of the process. It's it's going to. There's knocking to be any confusion about well this is what what he wanted before he passed. You know you're going to do all of that there should be clarity on all that you not to have to rely on this state statute and law to dictate how your property passes your you're able to state everything that you want to be done in with a good estate plan.

You know you can really accomplish those goals with with great certainty, with a whole whole lot of control.

You know you can have a great degree of control after your passing it if you draft and you draft will yet so will you know if you if you got under a it underage if you got if you get underage children. The will is very important directing guardianship setting up that will talk about trust. More later on an episode with setting up a trust that would be administered for the benefit of your underage children. But that's why your that's weird you're doing you know you want your assets managed a certain way you want to make sure your kids are going to be with the people that you intend him to. Because if there's no direction, you save save me and my wife did not have an estate plan and we were on an airplane to Vegas and it goes down. We haven't put anything in writing as to who should be the guardian of our kids will guess what is not up to us anymore. It was gonna be court that awards guardianship and it you know social services would be involved. It's just that it's just that gets messy, really quick and in unit C always want to be prepared for that. Again, the chances of that happening are slim, but it does happen.

I've seen it happen more than once in my career. Very sad. But where you lose to parents at or about the same time and so that that's that that's the big thing I don't know why seasonal Matt today for simple question should I have a will. But I feel like when you have underage kids and you got kids in school and both parents working. It's a easy time to not do estate planning rights to select the last thing that you have easy not to do it because it's morbid.

I mean, it's a morbid conversation and there's a lot of morbid thought that goes into it and you know if you're superstitious like you could.

I know that that's a a lot of thought like prepare this estate not getting killed. Walking out of the building get hit by car immediately like there's just a lot a lot that goes into its a lot of existential type of thinking that you gotta do, but there's no better time than now because you know we know when no one can say when it's going to happen soon. It's ultimately going to happen to literally everybody so there's nothing more certain was going to just jump in and in an offer of just an example.

So when we were no newly newly married.

We didn't have kids yet, but you my best friend in the world.

They had started their family and they invited us over for dinner and we had this discussion and it was hey if anything happens to us.

We want to know if you would be willing to, and we rely, we became godparents that night and it's a big big deal and interesting what you said Joe. As far as when you have to make decisions on his and take care of the kids. Even though it is very morbid. It's interesting when the husband and wife when that when the partner start talking about who they want and then they have a disagreement on his and raise their kids, you know, if indeed they're not there so I mean it's a it's a discussion that needs to happen after I talked to a lot of parents and and you know as we do estate plans a kind talk to him through that and some of his disagreements are well-founded and in again. Sometimes just don't have a good option.

You know but deftly not a perfect option.

A lot of times, but always counsel people. Hey, this is a really remote possibility that this happened to me this happens I don't know what percentage is what is 99.9% of time. This will never come in coming to play.

So get too caught up on it. You cannot agree on what the best option is in and try to be passive but it's things people look for years I've seen a lot of people come by like four years later they got another kid now and I finally finally got through that but you know guardianships a big deal if you're if you will screening a trust trustees a big deal coursers have to be an executor, a personal representative and administrators have to be someone who's in charge of the estates of these are all fiduciary relationships were.

You have to figure out who that's going to be absurd a lot of people to get invited to dinners like that Morgan that our letters may be surprised when they get hit up for that. But that's what happens you get a figure to do that if you you are and around well.

A lot of times those dinners are to judge your reaction and you know they're trying to make a decision and there there. Also, putting it on the table and they want to know what you think, obviously, and if you would be willing to do it and obviously we did.

That's what you do a dry run. You invite your friends to dinner and telling kids for a week. This is your test as I you have as you and as you estate plans a start when you're you got a younger family right and as you continue to update that estate plan will is very important early on as those kids become older, you, not so much worried about that you become worried about just getting things the next generation most efficiently. The most efficient way possible. As you get over the will is less and less and less important than if you done your estate planning your whole life and you begin to your 80s or 90s and you pass away. Hopefully the wills just a catchall. Hopefully the wills just you know presiding over anything that may have been missed. It is, it's weird how it gets less and less important over time. If you done your estate planning again will talk about trust here later but it it it's it's more important early on when you have the least amount of time to get it done and NEC said it well, Josh, you know, go back and supplement that estate plan. And that's what will continue to talk about in your next will talk about how you can do that.

Ways that you can deemphasize the importance of that will as you get older because again, the goal is ultimately built. The ultimate goal is to be to avoid probate altogether any way possible so have is as few probate assets, meaning things that require estate administration and try to have everything it in a another vehicle weight that can be avoided altogether and so will talk about that a little bit when we talk about trusts on our next listener questions that you're locked into the outlier Josh Whitaker and Joe Hamer. They are managing partners at Whitaker and Hamer law firm practicing attorneys here in North Carolina.

If you got your own set of questions when it comes to estate planning, or other legal issues. There's a good opportunity here for you. You call this number 800-659-1186. That's 800-659-1186 lead contact information briefly what the call is about an attorney for Whitaker and Hamer will be in touch with you can also email questions to the program will use those questions in future program for just a reminder to talk more estate planning on the outlier will come back. They have offices in Raleigh garner Clayton, Goldsboro, Fuquay. And Gastonia. They are the managing partners of the firm they are practicing attorneys here in North Carolina. We are all over estate planning. You may have your own set of questions.

If you do get in touch 800-659-1186.

That's 800-659-1186 and leave your name will contact information will be about with calls about an attorney with Whitaker and Hamer will be in touch. You can also email questions to the show will use my future program fellows.

So the next listener question Morgan has to do with trust and again I ball down a couple of these and merge them into one, but basically our next listener question question is is multiple questions but basically what is a trust. Why do people have trust should have a trust that that's kind of the questions that we we get and in trust or are useful. We talked about this time or two on the show in conjunction with other things but in connection with estate planning trust are very important vehicles of trust are basically I think of them as entities that provide the best word but it's like you're creating a separate entity something that's not yourself something that that you may have some control over. But it's a vehicle it's not you write so my name is Josh Whitaker obviously so I own some real property.

Maybe I own it. My personal name as I start doing some estate planning.

I might I might be I might be persuaded to put that into a trust trust don't die either. Not a living person. The trust doesn't have a will. Trust don't don't in and going to probate. So trust her away attorneys and other professionals can avoid probate, and so Joe, what would be reasons why we want to avoid probate Will's there several reasons and you know you said you don't necessarily want to use the word entity. That's a perfect explanation for what the trust is it's it that's it. It's exactly that it's a separate entity and you know, although it is not you that owns this property you can maintain a great deal of control over what happens with the property you know you you set the trust up that you fund it with with you know, the trust corpus of the property that goes into it and then Juergen I have a trustee or trustees that that manage that trust for the benefit of the named beneficiary so there several reasons why you would want to have a trust. Some of them are going to be reasons that are going to benefit you during your lifetime and off the top of my head that the number one reason I can think of that to have a trust during your lifetime is to protect property from any kind of creditor that might come after it because you if you have a trust that set up properly. It is going to insulate you from liability.

As far as you know, creditors being able to to put a lien on that property. Whereas they would've been able to doesn't do that if it was in your personal name.

So you see a lot of that, especially when you're dealing with elderly putting real property into a trust for the purpose of not allowing you note nursing homes to put liens on the property or to to have Medicare liens things like that and that's good to be a huge benefit and and a huge degree of comfort given to you during your lifetime. If you know you got that added layer of protection and so this whole unitrust, or trust or legal topic that can can be talked about connection with a bunch of different areas so I Joe said asset protection, estate planning, you know, avoiding certain liens, Medicaid, Medicare liens, things like that that that goes into a area of law. We call elder law, which is like estate planning plus for for folks of us a certain Asian so trust are really just useful. Some tax attorneys we use trust to to get more advantageous tax treatment and in certain areas. So, depending on your fact patterns depending on your income level in your what you what your assets are your family assets you know trust can be very useful just to keep talking about the same thing and to continue our talk about kids you know economy talking about a younger baby, a younger couple that has kids under the age of 18 and we talked about how previous segment how wills help you determine guardianship if if you and your partner are both gone. Trust would also help there. So in your will, you have a trust for your underage children, and that trust would have provisions you can make anything you want to so you can have a trustees, a professional financial person. It could be a friend can be apparent that trustee would administer your assets to the benefit of your children and so you can give the trustee you have access to pay for education to pay for healthcare if there's enough in the trust. They can give the kids money as they aged 18 to 21 when they get married when they go to college provide vehicles form. You can make this trust as detailed or as general as you want but it's a very good tool for just take care of your kids need eyes as a younger that when they're younger than you and your and if you're not here. I think accident was easy way possible trust are you suppose that's what I'm trying you pose the question Josh and I did a poor job of answering the question of why, why would you want to avoid probate and I think the best way to answer that question is for you to personally oversee and edit minister estate go through the probate process and him and deal with going out to the courthouse all all of the inventorying all of the legwork that goes along with that and I think you'll see how how cumbersome, how burdensome it can be. And if you factor in that unit when you're doing this, you're generally dealing with the emotional fallout from the death of a loved one. It just adds a lot to the plate of individuals that you're leaving behind.

So you're asking a lot of people who probably care a whole lot about you to to have them have to go and administer your estate so the less that they have to deal with, or if you can set it up so that they don't have to deal with any kind of probate in will have to go down to the courthouse. I don't have to sit to deal with filing any kind of inventory thing like that. The more you can take out of that equation for them. I think the better it is for everybody really in the long run so here the firm. We handle estate planning which is what we are talking about today. We also handle the other side which is estate administration. So once we've we've done a lot of posting on their estate plans and then when their time comes and they're no longer with us, their heirs will come in and will help with the estate administration and it's it's nine days. If you have a good estate plan. The estate administration sought after you're gone. Is is easy, which is the point. That's what you do. Your estate planning that your heirs just keep on moving at a deal with their grief. But you know they they can get money they need to get to not down at the DMV attorney car titles.

I switched over to the clerk's office trying to get access to a lockbox or are something like that everybody just keeps moving along with their lives and only neck house callously course, everybody is still grieving and things like that but they're not waiting in line at the courthouse during a covert outbreak to try to get a you know you access to things they need right away.

So the estate administration side this probate this.

We talk about forming trust and planning to avoid probate. And that's why slows everybody down in a very inconvenient and difficult time.

And so the trust is a legal tool that we have at our disposal that can avoid probate before you know a generation or two easily and then there's things you can do past as he can really you can really use it to your advantage and it just has to be formed right so you have to actually meet with an attorney and get it started properly, but then it just needs tuneups along the way.

But it's very useful. And, and it gives you so much more flexibility. Josh, you know the you get with the trust with a properly and will draft the trust I should say there's so much more that you can dictate and control after-the-fact as opposed to you know just simply stating all of all of this you know property all this money goes to this individual or this air, the trust is going to give you more flexibility and you could set up a trust where there's, you know, a trustee who has discretion.

Or, you can literally identify the qualifying events to allow the beneficiary to take so you know if you got an a kid that is a minor or that is, you know, even someone who's of age that maybe doesn't make the best decisions that you're worried about dropping a substantial amount of money on you can create qualifying events and and you can dictate the flow of the funds that go tool so you know you know what's best for your kids, you know what's best for your beneficiaries and it gives you the ability to either yourself dictate by stating specifically like this is what needs to happen before you know these funds are distributed or are this is is what occurs, or you can appoint someone that you trust with no pun intended. A trustee that will have the discretion to decide what happens. So if you got someone that you really you really trusted to make those decisions on your behalf.

It just gives you a whole another level of of flexibility and control. After you pass to make sure what you think should happen with the things that you've acquired in your life is what is actually happening.

I know we Joey of this disclaimer a lot on the show course mean Joe or her principal Everett Whitaker and Hamer law firm in North Carolina. We are only licensed to practice in North Carolina and when we talk on the show were talking in generalities were were not giving anyone any individual legal advisor to speaking in and in generalities in a point that out because there's been a trend in our in the legal industry toward some self-help website some kind of we somehow website settled, trotted to draft some documents say at your direction, and generally I'm I'm against that. You know I am an attorney I see when those things go wrong week. We clean up a lot of stuff that was done at your your direction trust you know they don't work.

There is no one-size-fits-all. We have hundreds of trust templates that we we use and buildout up build off of. Depending on your circumstances. And so you know if you're considering creating a trust and putting your assets, your life's work into that trust you really want to talk to somebody who knows what they're doing about how that trust should be drafted and how you should operate that trust.

It's it's it's is not a one-size-fits-all type of situations. I just really want to stress that Sergio was part of our conversation. It almost defeats the purpose of going to the trouble of drafting this note very well tailored complex trust document. If you're not going to you know take the time take the energy you take note that the cost it in the money that it's gonna cost you to be well worth it to sit down with a licensed, qualified, experienced attorney who look at this stuff every day and who can ask you the relevant questions you can point out the pitfalls and and point out the things that you should be concerned with, and really uniquely tailored that trust and's instrument to you and your needs. Because like you said there's there's no one-size-fits-all option and there's a lot of things that you may not think of. If you just plug in and information into a form that someone who seeing these things play out can really call to your attention and make you aware of you guys are professionals, so you do this on a daily basis and you know when someone is thinking about estate planning and on your you're looking online. Everybody does. And you get these ideas know I want somebody that's been there and done that on a regular basis and has seen a lot of different situations and can advise starts with a conversation folks so we are talking about estate planning. We got over wills. We got over trust got more to come. How you listen to the outlier Josh Whitaker and Joe Hamer managing partners at Whitaker and Hamer law firm right here in the great state of North Carolina there practicing attorneys here Raleigh Garner Clayton Goldsboro Fuquay Arena and Gastonia are the office locations.

If you got your own legal question and it may be estate planning. You can certainly call the firm 800-659-1186.

Just leave your contact information little bit about what the calls about an attorney with Whitaker and Hamer will be in touch with you can also email the program got more on estate planning coming up right after this one. I have offices in Raleigh Garner Clayton Goldsboro Fuquay Marina and yes, Gastonia 46 combined years experience between these two and they love talking legal and we do it each and every week here on the outlier I Morgan Patrick consumer advocate we are discussing estate planning going through it for you will have recap at the end as well. But if you've got your own legal question and it may be estate planning. Maybe something else you can certainly contact the firm at 800-659-1186 at 800-659-1186 leave your contact information briefly what the calls about an attorney with Whitaker and Hamer law firm will be in touch with you shortly.

Also you can email the program occasionally will do and all questions show which is a lot of fun will. Your question may be on an upcoming shows. You can email's and check out the website, the out a lot guys I know were to continue with estate planning.

What's up next morning before you get to that I was going to just take a minute so we've answered a couple questions sure how you view the short answers to serve our listener questions a been should have a will and and Joe has answer that for us with the with the simple yes so that's that's the first question we've answered the same question we've answered is, you know basely what is a trusted. I have a trust in answer to that was I think a short answer that is probably trust her or really useful as we just met a lot of time talking about so should have a will. Yes, should have a trust probably what you need to talk to an attorney about that to see if that's something that that kinda fits into the estate of planning your trying to put together is our third listener question today is basecoat. Basically what is a power of attorney. Should I have a power of attorney Joseph, how would you answer that question Joshua I would answer that question with a firm. It depends that it would use would you consider that the correct answer here – yeah yeah and again you know attorney have to talk to you and kinda get a feeling for for what's going on in and I say yes more that do not deny ever have. It's it's not an automatic.

Yes, for me every time. But you know, especially with with with Covidien and the way things have been changing over the past couple years I know we had a lot of clients have kids are going off to college and power of attorney's and what about healthcare power of attorney's later you having some legal authorities. These parents can still do things for their kids while they're away or if they get sick or you know are unable to deal with stuff on their own so power of attorney's used to be something we would we would talk about as you as you can get older get married but now were talking about, you know, 17, 18, 19-year-olds alive times and have these legal documents in place so parents can still help them when when necessary sound. I've seen that Elijah yeah yeah I agree completely. And you know I think to answer the question. It's good to just kinda give a brief summary and overview of kind of what the power of attorney really doesn't.

So essentially what you have is you got an instrument that that's been drafted and and you are going to be assuming that you are the person who's delegating this this authority out Juergen to be delegating authority to edit what we call in attorney-in-fact, which is just going to be an individual that you're gonna say can act on your behalf in regards to what ever matters that you state they can handle, so you know you can be as specific you can be as broad you can be you can really draft out however you'd like.

You got a great degree of control and how you delegate these powers, and so there's there's a few different things that can be done as far as when you prepare this power of attorney and you got. There's that there's always been a statutory short form POA that that the legislators drafted. That is just very bare-bones and you cannot have boxes that you could check as far as what powers you want to delegate, but then you can also be very very specific and you can go in and you can you know drafted very, very tailored to the individual needs that you have and you can really specify what this person can and can't do for you. Yes, we see a lot of people hearing them yet.

Like maybe they're buying a house with her to be out of town on business. They draft a will we call a specific power of attorney so that their spouse or their partner or somebody can sign for them at closing and so to be very specific. It'll just say hey this.

My attorney-in-fact Joseph can consign any documentation related to the closing of the property at 123 Fake St. This power of attorney is good for six months and it automatically expires. That's an example of a a very specific power of attorney.

The powers of attorney can be drafted as broadly as you won't see that one of the powertrains we use is the most broad you folks can make a new will for you appoint other people to act as your attorney-in-fact if they came at change life insurance beneficiaries that mean just do all kinds of things so at the broadest level. Your attorney-in-fact can basically do anything that you could do on your own.

You are in essence yeah yeah it's it's very important that that you feel comfortable with your attorney-in-fact going to be.

Sometimes you see folks make you like maybe ought to children, and they will both children to be there attorney-in-fact may have to act together.

I usually advise against that kind of thing for for reasons that we will go into here, but can be one person. It can be multiple people you could have backups named but you're given out a lot of control when you do this and so some people are comfortable with that. Some people aren't because again third parties like attorneys or creditors or lenders can rely on this power of attorney to allow people to do things in your name and so sometimes us on a problem for folks to just name their spouse or their partner to act on their behalf when they can, and in some folks don't have that person really feel comfortable giving that kind of power to so in that case we we can limit the amount of power you're giving in a power of attorney giving to your attorney-in-fact. You can also make up power of attorney so is not effective until your physician said your incompetent right so you can get it done today and everybody can have a copy of it know it's there, but it won't go into effect and so your treating physician is as written a letter saying you know what Josh is incompetent, he can handle is dated away a day affairs and that triggers this power of attorney to take effect. So there's all kinds of discussions and all kinds of things that go into drafting a power of attorney for estate planning purposes, but it really just depends on your comfort level. What you're trying to achieve. Yeah, you know, just said it well you know talk about the downside that that the fear really is what you said you got have an individual that you really trust because if you give that brought POA out someone they've they're there to have the power to act just as if you would act and it if you do not specify correctly, there have full discretion and you know you may not agree with the decision that they make, but the individuals the third parties that there interacting with eight have to rely on that that POA so you could get into it a tough situation and you mentioned that is one of the primary downsides. Then you came back and you and you gave the solution to that which is like you said it, making sure that there is that triggering event where this POA is knocking to take place unless you are officially deemed to lack capacity or to said to basically be unable to to make those decisions on your own. So I think my recommendation in drafting is going to be in her to have that provision know it. Unless of course there start their situations where you don't need it and you trust the individual or your you know you need them to be able to make decisions in your absence.

But I would encourage you know to to tailor make specific POA's unless you've been advised otherwise that the specially if you got a person you can trust that more brought POA that that takes effect when you lose your capacity and I'd be very you want to make sure that that your attorney whoever it is that's drafting this for you is extremely clear on on your lack of capacity and what constitutes that lack capacity so there's no confusion there. I don't want to scare people either.

Joe, you know where it's very important people know what they're signing and what it can do in the downsides but is also a good size to a POA because once you've looked once you've lost your capacity right. Once your incompetent once you need someone to do something for you. If you haven't done a powertrains too late to do it right you have to have a power of attorney in place before that happens. Most people, you know, you don't get a whole lot.

A notice on that kind of thing happens it's it's a surprise arcana. You know it, it's nothing you will do a power of attorney why your healthy why your and why your company is once once that time is passed and you need help whoever's helping use.

You have a lot of trouble because again I have to be in touch with your doctors or polymath go to the courthouse and explore getting a guardianship in and get a lot of people involved were as if it they have a document if they have a POA in their possession ready to go. They can start helping you immediately. I know that that's the big thing and one thing that we see a lot of confusion on that. I think it's important to to mention his you know that the POA is great to have when you're alive. Obviously you know that we talked about the benefits but once you pass away that POA is the it's knocking to be real. It's your document will use it anymore and and I do not. There are certain situations where it still has relevance. You know if you if you sign the contract if the if that POA signed a contract prior to your death. Either there certain narrow scenarios where it may have some relevance but for the very most part it's a matter anymore we see a lot of people get confused by that year that someone will pass away there. The POA and the comeback referred to the fact that hey, I've got POA will your you note that the principal debt at this point that you can't be the attorney-in-fact for a person who no longer exists, that that authority has expired when they passed away so I think that's an important thing to bring to people's attention. You're listening to the outlier's Josh Whitaker and SchellHamer, we are focusing on estate planning for this week. You can find Josh Angelica Whitaker and Hamerlock from the managing partners there practicing attorneys here in North Carolina. If you got your own set of questions.

Maybe it's about estate planning or something else when it comes to the legal you can call this number 800-659-1186. That's 800-659-1186. You can also email your questions to the program will use those questions on future program, we got more with estate planning rig over healthcare powers of attorney that's coming up next.

Back on the outlier Whitaker and Hamerlock from the managing partners there practicing attorneys here in North Carolina again. 36 combined years of variance offices in Raleigh Garner Clayton Goldsboro Fuquay Marina and Gastonia guys, we have a short stretch here, but healthcare power of attorney so more. This is the last document were talking about is different, at least important, but it came last, but yet will possibly a trust power of attorney healthcare power of attorney is a kind of the four pillars of your estate plan is a healthcare power of attorney is will different in the power of attorney were just talking about the previous segment we talked about how what a lot of people will just informally call a business power of attorney. The power of attorney that allows someone to do your banking conductor business.

Take care of your affairs. Generally speaking, separates that from a healthcare power of attorney's there's a separate statute that authorizes you to have a healthcare power of attorney prepared to appoint someone to make medical decisions when you can't write.

So under the laws North Carolina if your spouse is in the hospital. I think doctors prematurely to you is as the spouse to make these decisions are yet underage kid elected to the parent to make those decisions but when that's not the case. Healthcare power of attorney is what a doctor would a medical professional wants to see to see they need to look to to make decisions. If you're no unconscious or your you know in surgery or just can't make decisions for yourself and and healthcare POA's are very specific to just that circumstance, yeah. And like you said Josh your your your given the authority to an individual to to make these crucial healthcare related decisions on your behalf. And just like with that general in a business related POA.

It's something that you can maintain a degree of control over by specifying what things you want to know.

Go ahead and make the decisions on yourself.

You can put that in plain black letter language where you're going to state this is what should happen if X occurs and then you can give discretion on either everything or on a narrow range of things to that that power that attorney-in-fact just like you could with with the business POA and I think one thing that that there's some confusion with with clients we deal with is you know what what really is the difference between the healthcare power of attorney and then what is referred to by some as a living will. Can you speak to that distinction. Josh yesterday North Carolina.

We really don't have a living will and lifetime just see it on TV here. You might have relatives or friends in like a California or New York and they have very specific statutes to talk about a living will, living will is a document basically is is fairly lengthy.

Just goes over a lot of, common medical situations you may find yourself in and you, stay at a time which you would like to have it to happen if if that situation occurs to you are you know it's a little bit different than a healthcare power of attorney.

North Carolina primary document that you see is a healthcare power of attorney not within that you can set several limitations on care are things you deftly won't. I deftly want to be an organ donor and I deftly don't want life-sustaining nutrition. If I have no brain activity. There are some parameters you can set for your attorney-in-fact for the person you're pointing to make these decisions for you so here power of attorney very, very important. As part of an estate plan.

Again, as you support for everybody but as you get older it's more important and then maybe when you're younger, but something you deftly want to talk about again talked about Joe while the kids going off to college is healthcare power of attorney's are becoming more and more routines appearance can still help if something were to happen alright gentlemen, the outliers got another one in the books lot of fun estate planning again that you might think it's a little morbid, but you really need to get on top of it wills trust POA's the power of attorney and also healthcare power of attorney. Things to consider if you got your own set of questions give the firm a call 800-659-1186. That's 800-659-1186, leave a brief description of what you're going through and contact information and attorney with Whitaker and Hamer will be in touch with you guys. Another great show will see on the radio next week is attorney licensed to practice law in some of the guest. On the show many licensed attorneys discussion of the chosen to be general in nature and in no way should the discussion be interpreted as legal advice.

Once an attorney licensed in the state in which you live the opportunity to discuss the backs of your case with you. The attorneys appearing on the show are speaking in generalities about the law, North Carolina, and how these laws affect aboriginal Carolinian. If you have any questions about the content of the show, contact us directly

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