The Importance of having an Estate Plan

This week on The Outlaw Lawyer, Joe and I talk about estate planning.

It's a new year. Lots of questions. We've got answers. And now, Outlaw Lawyer. The Outlaw Lawyer on the air. Josh Whitaker and Joe Hamer are your hosts. They are also the managing partners at Whitaker and Hamer law firm. Forty-six combined years experience and they have offices in Raleigh, Garner, Clayton, Goldsboro, Fuquave Arena, and Gastonia.

They are practicing attorneys here in the great state of North Carolina. It's been a couple of weeks, but hey, man, we're back in studio. Guys, how was your break? Morgan, it was good.

I can't complain. It was a good Christmas. It was a nice, relaxing new year, but we're in early January now. And it seems like everybody didn't, you know, sometimes we have a lull in kind of just general business around the holidays and then January. That lull, it's kind of like a hangover from the holidays. And so we see the first couple of weeks of January are kind of slow on the transaction front.

But from everything I can see, everybody's chugging along. Joe, how was your holidays? Hey, Josh. Everything was good.

It was great. A 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.

More than you normally would during this time of the year. And I've got no complaints other than I could have done with even more downtime, honestly. Well, you know, what is what is the old adage of body in motion stays in motion. So once we finally start slowing down, it's really hard to to get it moving. And I'm not talking about like a gym. You know, I'm not talking about like exercise just in general, you know, that is the old adage. I say that all I say that at least six times a day. Do you?

Body in motion stays. I tell people that. Just walking down the street.

It's just my little nugget of wisdom. I like to drop on everybody. Just give them a nod and a wink. Can't stop to talk.

Got to keep in motion. Tip your hat and what have you. The I was going to ask you guys, you know, we haven't been together in a while, but I know as adults, you don't get a ton of gifts. Right.

And Christmas is is for the kids. We might get a gift that was there. Was their favorite something worth reporting back on?

Go ahead, Joe. I'll take this one. And I think the the best thing I got and I want to say I could be having deja vu. We talked about best gifts we got.

And I want to say we discussed this in a 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. I don't know what fur it is, but a really good to my feet. And I got to say that's the 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. Definitely.

I don't know what faux animal it was. There you go. There you go. I got some golf stuff. I got slacks. I got new golf shoes and then immediately went out the day after Christmas and shot 77 over in Greensboro. So I was.

Oh, wow. Yeah, I had a and we had one of those incredibly warm days and it was just absolutely perfect. And I hit the ball extremely well. Yeah, it was insanely warm. We had a couple of days down at the lake. I was really tempted to try.

Try to get in the water, although I know it's way too cold, but it was so warm, you felt like you could hop right in. But but no, Christmas. Christmas was good. I got a book. I don't think it's a secret. I do enjoy occasionally watching some wrestling. And so I got a cookbook. It was luchador. It was a luchador cookbook.

So it was every luchador, every Mexican wrestler's favorite recipe. And so I was actually excited about that. Did did I know that you were a big wrestling fan? I don't I don't know if we've ever talked about that. Oh, really?

I don't think so. I usually keep it keep it under under my hat. You know, I think favorite favorite wrestler of all time. I grew up I grew up in North Carolina.

So I think you have to. Flair. Yeah, Flair. Arn Anderson is going to be one of those guys, I think. Flair's a tough one these days, man.

He's got a lot of negative, negative PR and press lately. But but yeah, we had that episode talking about separating the artist from the art. And I think you got to do that with Flair and one of the all time greats unquestionably. Well, I've got a I've got a good Flair story.

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 it worked at night. And on Wednesday nights, when I first got there, we CNN was underneath TBS studios before they before they moved to the Omni, which they did that summer.

And I got to work in both places. But we were at TBS in the basement, no windows. And every Wednesday night, I mean, it was like a thunderstorm. I'm like, Holy cow, what is going on out there?

I know we have thunderstorms in the south, but this is crazy. And the guy looks at me, my, my, I guess my supervisor, he says, Come with me. And we were in our blazers and our ties. And we walk up these back stairs.

And we walk into this control room. And it is TBS is wrestling studio right above us. Oh, so the thunder on Wednesday nights was their TV taping. And they had the small crowd, they had the miniature ring. And they had the the group of wrestlers, and they discussed how everything was going to go. And I was standing there and I was blown away because I'm kind of like you, Josh, I kind of grew up watching some of the old school wrestlers.

And the next thing I noticed is there's somebody standing next to me getting ready to go out into the ring. And it's flair. And he's wearing aqua.

He's got an aqua cape, aqua pants, aqua boots. And I had a tie on. And I had a mustache at the time, I was only 19.

So I guess I looked a little older. And he looks at me and he goes, What do you think? And he was asking me to judge his wardrobe, thinking I was a suit. And I said, Rick, I like it.

But man, red's your color. And he went and changed. And he came out in all red and totally kicked you know what in the ring, and came back by and said, Thanks. That's a fantastic Rick Flair story.

That is a good one. You know, it's very topical, too, because you mentioned TBS. And you know, wrestling was big on TBS for a very long time. There's been no wrestling on TBS since, I believe, March of 2001.

Wow. And as of the time of this recording, wrestling is back on TBS tonight on Wednesday nights, I feel like we're we should be paid advertisers for it. But uh, wrestling comes back to TBS tonight. Yeah, I think it should be 805. I think that's when it should start.

I don't know what the time is that it's going to come on. But when it did that, and then when it came on back in the day, it was like 605, 705. It never started at seven o'clock or six o'clock.

It was always 05. Yeah, I was I was never a huge, huge fan. But I had neighbors that were really into it. And my parents limited my television back in the day. So like on Sundays, I'd go down and they would watch wrestling on like a Sunday afternoon on one of the super channels. And I was able to watch it there. But yeah, very entertaining. And of course, it grew into this this mega monster that it is now.

And I mean, I mean, there's just generations of kids that have grown up watching pro wrestling. And anyway, it's an interesting dynamic to our society. Well, that was kind of an odd topic for us here on the outlaw lawyer, I guess we'll talk about just about anything. But what I really want to talk about, it's a it's a new year. I wanted to have another themed episode where we take our listener questions, and we kind of put them some similar ones all together. And so New Year, this is a good time for estate planning. A lot of people are are kind of thinking about their year setting their goals, setting their priorities. I think this is a really good time. We've talked about estate planning here there on past episodes in passing.

But we've never had a whole episode dedicated to it. So this is the outlaw lawyers listener question episode dedicated to estate planning. So we've got four listener questions that all have to do with wills, trust, power of attorneys, health care, power of attorneys. And so that's what we're going to do today.

We're going to run through those and hopefully give you guys some information that might be helpful as you think about reevaluate. But but estate planning. I mean, again, we talk about a lot of things in the course of my my other career. You know, we're talking legal here with the outlaw lawyer, but estate planning is a big part of other discussions that we have. And it's so very, very important to always kind of go back and look at your beneficiaries.

I know you guys are going to talk about that coming up during the course of the show, but it's it's very, very interesting. So if you have not done an 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've got your own set of questions. If it's about estate planning or some other legal issue, just leave a message, your contact information and briefly what it's about. And an attorney with Whitaker and Hamer will be in touch with you can also send questions to the program that we'll use kind of like this on future programs. And that's questions at the outlaw lawyer dot com. That's questions at the outlaw lawyer dot com and visit the website.

And it's very simple, the outlaw lawyer dot com. And you can kick the tires there as well. But guys, I know we've got a lot to get to. So it's going to be estate planning from wire to wire. I'm glad you guys had a great holiday.

We're back right after this. Welcome back in to the outlaw lawyer hosted by Josh Whitaker and Joe Hamer of Whitaker and Hamer Law Firm, managing partners there, practicing attorneys here in the great state of North Carolina. They have forty six combined years experience with offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina and Gastonia. And we talk legalese each and every week. And we're going to get into estate planning this week. So take some notes if you've got any questions about your own estate plan. You can certainly call the firm at eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. And an attorney will be back in touch with you shortly. Also, you can send questions to the program questions at the outlaw lawyer dot com. But fellas, estate planning very, very important.

It is important. Morgan, the estate planning, no one wants to do it. You know, I tell people, you know, I graduated from law school back and I guess I'd have been three or three. I graduated from law school, which doesn't seem like that that long ago, but is eighteen, nineteen years ago now, I guess at this point. But it took me six or seven years to draft my own estate plan. So there was no fees involved.

I didn't have to go meet with anybody. I was an attorney drafting my own estate plan. It took me that long to kind of answer all the questions I needed to answer and do it. And and that's too long.

There's no excuse for that. But I tell people that to make them feel better when they you know, because people, you know, have estate plans and once you get one done, you feel so good that you took the initiative. You got it done.

You went met with the attorney. Everything's notarized. You've got your originals in a safe spot, but then you're not done.

It's kind of 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 do have to review it annually. You know, every couple of 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 got to estate plan. You got to do it. And so our first question today is kind of boiled down from a bunch of listener questions we had.

And so I just try to I just simplified it. But do I need a will? All right. So that's the listener question that's going to kind of spark our conversation.

Do I need a will? Joseph, what do you think there? Well, Josh, as someone who is very qualified to answer this question, the answer is yes. Thank you, guys, for listening to our show. Good night.

Good night. Yeah, that's it. No, it's simply put, it's it's it's yes. And that's a you know, that's like you said, Josh, I think you kind of have to look at this sequentially. And we're 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 a little bit younger. And I think that that will piece 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 I have I don't have like one estate planning speech that I give everybody I meet with, you know, estate planning is really something from an attorney's perspective. You sit down with people and you kind of listen to where they're at in their in their life's journey.

Right. So if you're talking to a young people with young children, we talk about certain things. If we're meeting with someone who I consider myself an old man at this point, but if we're talking to someone whose children have or, you know, left the house and you're kind of in that retirement phase, we have a different conversation. So this there's no one size fits all estate plan. There's multiple things to think about. It depends on how many assets you you do have.

You don't have. Are we worried about debt? You know, when you pass away, you know, there's there's all kinds of factors that go into the discussion again. Should I have a will? The short answer is yes.

But the long answer is yes. But for different reasons, depending on your circumstances, you know, and I think the biggest thing I would tell folks, maybe our listeners is if you've got young children, you need a will for a lot of things because a will is where you kind of decide who you want, you know, your guardian of your kids to be right. So if you're you know, I always use this 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. Well, how are we going to take care of your underage kids? You know, we have to you know, you want to go ahead and decide and put your who you want to be the guardian of your children. And that's really the biggest.

I think that's really well does a lot of things. That's the biggest thing for couples or people who have, you know, younger children under 18, children under 21. Well, I guess children are 18 for guardianship, but that's 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.

That's the that's the biggest holdup I see for younger younger folks getting their estate plan done. Yeah. 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, you know, somebody I guess you could take the position. Well, 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 it's really, you know, the estate planning, it's for you, to an extent, as far as giving you that peace of mind and giving you some comfort while you're alive, knowing that your affairs are going to be handled as you'd like them to be in the manner that you want them handled.

But it's more so for everybody that you leave behind. You know, it's going to take the guesswork out of the process. It's going to there's not going to be any confusion about, well, this is what what he wanted before he passed. You know, you're going to all of that.

There's going to be clarity on all of that. You're not going to have to rely on the state statute and law to dictate how your property passes. You're you're able to state everything that you want to be done. And 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 if you draft and you draft well.

Yeah. So the will, you know, if you if you've got under a if underage, if you got if you got underage children, the will is going to be very important directing guardianship, setting up. We'll talk about trust more later on in the episode. But setting up a trust that would be administered for the benefit of your underage children.

But that's why you're that's where you're you're doing it. 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 them to be. Because if there's no direction, you know, say say me and my wife did not have an estate plan and we were on an airplane to Vegas and it goes down and we haven't put anything in writing as to who should be the guardian of our kids. Well, guess what?

It's not up to us anymore. You know, it's going to be a court that awards guardianship. And it's, you know, social services would be involved.

It's just a it's just a that gets messy really quick. And then, you know, so you always want to be prepared for that. And 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 two parents at or about the same time. And so that's the that's the big thing. I don't know why I seized on that today for our simple question. Should I have a will? But I feel like when you have underage kids and you get kids in school and both parents are working, it's an easy time to not do estate planning.

Right. It's like the last thing that you have. It's always 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, like if you're superstitious, like you could I know that's a line of thought, like, hey, I'm going to prepare this estate and I'm getting killed walking out of the building. I'm getting hit by a car immediately.

Like there's just a lot there's a lot that goes into it. It's a lot of existential type of thinking that you've got to do. But there's no better time than now because, you know, we no one no one can say when it's going to happen to them. And it's ultimately going to happen to literally everybody. So there's nothing more certain than that.

I was going to just jump in and offer up just an example. So when we were, you know, newly, you know, newly married, we didn't have kids yet. But, you know, 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 were like, we became the godparents that night. Yeah, I mean, it's a big, big deal. And interesting what you said, Joe, as far as when you have to make these decisions on who's going to take care of the kids, even though it is very morbid. It's interesting when the husband and wife, when the partners start talking about who they want and then they have a disagreement on who's going to 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.

I've talked to a lot of parents and, you know, as we do estate plans and kind of talked them through that. And some of those disagreements are well founded. And again, sometimes you just don't have a good option. You know, they're definitely not a perfect option a lot of times, but I always counsel people, hey, this is a really remote possibility that this happens. I mean, this happens.

I don't know what the percentage is, but it's ninety nine point nine percent of the time. This will never come and come into play. So don't get too caught up on it. You know, kind of agree on what the best option is and try to move past it. But it's it hangs people up for years.

I've seen a lot of people come back like four years later and they got another kid now and they finally they finally got through that. But, you know, guardianship is a big deal. If you're if your will is creating a trust, trustee is a big deal.

Of course, there's going to have to be an executor, a personal representative, an administrator is going to have to be someone who's in charge of the estate. So these are all fiduciary relationships where you have to figure out who that's going to be. And I'm sure there's a lot of people that get invited to dinners like that, Morgan, that are that are maybe surprised when they get hit up for that.

But that's what happens. You got to figure out who's going to do that if you you aren't around. Well, a lot of times those dinners are to kind of judge your reaction. And, you know, they're trying to make a decision and they're they're also kind of putting it out 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 you just leave for like a week.

You're going to have my kids for a week. This is your test run. Yeah.

Yeah. As you and as you estate plan. So you start when you're you've got a younger family, right? And as you continue to update that estate plan, Will's very important early on. But as those kids become older, you're not so much worried about that.

You become worried about just getting things to the next generation most efficiently, the most efficient way possible. As you get older, the Will's less and less and less important. And if you've done your estate planning your whole life and you you get into your 80s or your 90s and you pass away, hopefully the Will's just to catch all. Hopefully the Will's just, you know, presiding over anything that may have been missed. It's weird how it gets less and less important over time if you've done your estate planning.

Again, we'll talk about trust here later, but it's it's more important early on when you have the least amount of time to get it done is what I found. And you said it well, Josh, you know, go back and supplement that estate plan. And that's what we'll continue to talk about. And, you know, next we'll talk about how you can do that, ways that you can de-emphasize the importance of that Will as you get older. Because, again, the goal is ultimately the ultimate goal is going to be to avoid probate altogether any way possible. So have as few probate assets, meaning things that require a state administration and try to have everything in another vehicle where that can be avoided altogether. And so we'll talk about that a little bit when we talk about trust on our next listener question. You're locked into the outlaw lawyers, Josh Whitaker and Joe Hamer.

They are managing partners at Whitaker and Hamer law firm, practicing attorneys here in North Carolina. If you've 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 can call this number. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. Leave your contact information briefly what the call is about. And an attorney from Whitaker and Hamer will be in touch with you. You can also email questions to the program questions at the outlaw lawyer dot com.

We'll use those questions in future programs. But just a reminder, we're going to talk more estate planning on the outlaw lawyer when we come back. We are back the outlaw lawyers, Josh Whitaker and Joe Hamer. You can find him at Whitaker and Hamer law firm.

Forty six combined years experience. They have offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina and Gastonia. They are the managing partners at 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. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six and leave your name. We'll contact information a little bit about what the call is about. An attorney with Whitaker and Hamer will be in touch. You can also email questions to the show. We'll use them on future programs. Questions at the outlaw lawyer dot com. Fellas. So the next listener question, Morgan, has to do with trust.

And again, I boiled down a couple of these and merged them into one. But basically, our next listener question question is multiple questions. But basically, what is a trust? Why do people have trust? Should I have a trust? So that's kind of the questions that we we get and trust are useful.

We've talked about this a time or two on the show in conjunction with other things. But in connection with estate planning, trust are very important vehicles. So trust are basically I think of them as entities, not probably 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 where it's not you.

Right. 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.

They're not a living person. The trust doesn't have a will. Trust don't don't don't end and go into probate. So trust are a way attorneys and other professionals can avoid probate. And so, Joe, what what would be reasons why we want to avoid probate?

Well, there are several reasons. And, you know, you said you don't necessarily want to use the word entity, but that's a perfect explanation for for what the trust is. It's that's 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 set the trust up, you fund it with with, you know, the trust corpus or the property that goes into it. And then you're going to have a trustee or trustees that that manage that trust for the benefit of the named beneficiaries. So there are 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, you know, off the top of my head, the number one reason I can think of 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's set up properly, it is going to insulate you from liability as far as creditors being able to put a lien on that property, whereas they would have been able to do that if it was in your personal name. So you see a lot of that, especially when you're dealing with the elderly, putting real property into a trust for the purpose of not allowing, you know, nursing homes to put liens on the property or to to have Medicare liens. Things like that.

And that's going to be a huge benefit and a huge degree of comfort given to you during your lifetime if you know you've got that added layer of protection. And so this will, you know, trust are a legal topic that can be talked about in connection with a bunch of different areas. So like Joe said, asset protection, estate planning, you know, avoiding certain liens, Medicaid, Medicare liens, things like that.

That goes into an area of law we call elder law, which is like a state planning plus for folks of a certain age. And so trust are really just useful. Some tax attorneys will use trust to to get more advantageous tax treatment in certain areas. So depending on your fact patterns, depending on your income level and your what you what your assets are, your family assets, you know, trust can be very useful. You know, just to keep talking about the same thing, you know, to continue our talk about kids, you know, we've kind of been talking about a younger, maybe a younger couple that has kids under the age of 18. And we talked about how in a previous segment, how wills help you determine guardianship. If you and your partner are both gone, trust would also help there. So in your will, you'd have a trust for your underage children, and that trust would have provisions.

You can make them anything you want to. So you can have a trustee who's a professional financial person. It could be a friend. It can be a parent. That trustee would would administer your assets to the benefit of your children. And so you can give the trustee, you know, access to pay for education, to pay for health care. If there's enough in the trust, they can give the kids money as they age at 18, at 21, when they get married, when they go to college, provide vehicles for them. You can make this trust as detailed or as general as you want, but it's a very good tool to take care of your kids, you know, as a younger when they're younger and if you're not here. I think I said that in the most confusing way possible, but trust that's what I'm trying to say.

You posed the question, Josh, and I did a poor job of answering. You posed the question of why would you want to avoid probate? And I think the best way to answer that question is for you to personally oversee and administer estate, go through the probate process and deal with going down to the courthouse, all of the inventorying, all of the legwork that goes along with that.

And I think you'll see how cumbersome, how burdensome it can be. And if you factor in that, you know, 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 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, they don't have to go down to the courthouse.

They don't have to deal with filing any kind of inventory or anything 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 at the firm, we handle estate planning, which is what we're talking about today, but we also handle the other side, which is the state administration. So once we've done a lot of folks, we've done 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 night and day. If you have a good estate plan, the estate administration side after you're gone is easy, which is the point. That's why you do your estate planning so that your heirs just keep on moving. They deal with their grief, but they can get money they need to get to. They're not down at the DMV trying to get car titles switched over or down at the clerk's office trying to get access to a lockbox or something like that. Everybody just keeps moving along with their lives.

I don't mean that callously. Of course, everybody will still grieve and things like that, but they're not waiting in line at the courthouse during a COVID outbreak to try to get access to things they need right away. So the estate administration side, this probate, we talk about forming trust and planning to avoid probate, and that's why, because it slows everybody down at a very inconvenient and difficult time. And so the trust is a legal tool that we have at our disposal that can avoid probate for a generation or two easily. And then there's things you can do past that. So you can really use it to your advantage. 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 tune-ups along the way.

But it's very useful, very useful. And it gives you so much more flexibility, Josh, that you get with a trust, with a properly and well-drafted trust, I should say. There's so much more that you can dictate and control after the fact, as opposed to just simply stating all of this property, all of this money goes to this individual or this heir. The trust is going to give you more flexibility, and you can set up a trust where there's a trustee who has discretion, or you can literally identify the qualifying events to allow the beneficiary to take. So if you've got a kid that is a minor or that is 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 you can dictate the flow of the funds that go to them. 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 this is what occurs. Or you can appoint someone that you trust, no pun intended, a trustee that will have the discretion to decide what happens.

So if you've got someone that you really trust to make those decisions on your behalf, it just gives you a whole nother level 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, Joe, we give this disclaimer a lot on the show. Of course, me and Joe are our principals over at Whitaker and Hamer, a law firm in North Carolina.

We are only licensed to practice in North Carolina. And when we talk on this show, we're talking in generalities. We're not giving anyone any individual legal advice. We're just speaking in generalities. And I point that out because there has been a trend in the legal industry towards some self-help websites, some kind of websites that will try to draft some documents at your direction. And generally, I'm against that.

You know, I am an attorney and I see when those things go wrong, we clean up a lot of stuff that was done at your direction. Trust, you know, they don't work. There's not a one size fits all. We have hundreds of trust templates that we use and 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 just not a one size fits all type of situation. And so I just I really wanted to stress that to Joe as part of our conversation. Yeah, it almost defeats the purpose of going through the trouble of drafting this very well tailored complex trust document.

If you're not going to, you know, take the time, take the energy, you know, take the cost and the money that it's going to cost you, it's going to be well worth it to sit down with a licensed, qualified, experienced attorney who looks at this stuff every day and who can ask you the relevant questions, who can point out the pitfalls and point out the things that you should be concerned with and really uniquely tailor that trust 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're just plugging in information into a form that someone who who's seen these things play out can really call to your attention and make you aware of. You guys are professionals.

You do this on a daily basis. And, you know, when someone is thinking about, you know, estate planning, you know, and you're looking online, everybody does and you get these ideas. You 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. Thanks for the conversation, folks. We are talking about estate planning. We've gone over wills. We've gone over trust.

We've got more to come. You're listening to the outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer Law Firm right here in the great state of North Carolina. They are practicing attorneys here.

Raleigh, Garner, Clayton, Goldsboro, Fuquay-Varina and Gastonia are the office locations. If you've 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, a little bit about what the call's about, and an attorney with Whitaker and Hamer will be in touch with you. You can also email the program, questions at theoutlawlawyer.com.

We've got more on estate planning coming up right after this. The outlaw lawyers back on the air. Josh Whitaker and Joe Hamer are your hosts. They are managing partners at Whitaker and Hamer Law Firm, practicing attorneys here in North Carolina.

They have offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay-Varina and, yes, Gastonia. Forty-six combined years experience between these two, and they love talking legal, and we do it each and every week here on The Outlaw Lawyer. I'm Morgan Patrick, consumer advocate. We are discussing estate planning, going through it for you. We'll have a recap at the end as well, but if you've got your own legal question, and it may be estate planning, it may be something else, you can certainly contact the firm at 800-659-1186. That's 800-659-1186.

Leave your contact information, briefly what the call's about, and an attorney with Whitaker and Hamer Law Firm will be in touch with you shortly. Also, you can email the program questions at theoutlawlawyer.com. Occasionally, we'll do an all-questions show, which is a lot of fun.

Your question may be on an upcoming show, so you can email us questions at theoutlawlawyer.com and check out the website, theoutlawlawyer.com. Guys, I know we're going to continue with estate planning. What's up next? Well, Morgan, before we get to that, I was going to just take a minute, so we've answered a couple of questions.

I'll give you the short answer. So far, our listening questions have been, should I have a will? And Joe has answered that for us with the simple yes.

So that's the first question we've answered. The second question we've answered is, basically, what is a trust? Should I have a trust?

And the answer to that was, I think, a short answer to that is probably. Trusts are really useful, as we just spent a lot of time talking about. So should I have a will? Yes. Should I have a trust?

Probably. But you need to talk to an attorney about that to see if that's something that kind of fits into the estate of plan that you're trying to put together. And so our third listener question today is basically, what is the 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. Would you consider that the correct answer here, Josh? Yeah.

Yeah. And again, you know, an attorney has to talk to you and kind of get a feeling for what's going on. And I say yes more to that than I ever have.

It's not an automatic yes for me every time. But, you know, especially with COVID and the way things have been changing over the past couple of years. I know we've had a lot of clients who have kids who are going off to college and power of attorneys. And we'll talk about health care power of attorneys later. You know, having some legal authorities of 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 attorneys used to be something we would we would talk about as you as you kind of get older, get married.

But now we're talking about, you know, 17, 18, 19 year olds a lot of times needing to have these legal documents in place so parents can still help them when necessary. So I've seen that a lot, Joe. Yeah.

Yeah, I agree completely. And, you know, I think to answer the question, it's good to just kind of give a brief summary and overview of kind of what what the power of attorney really does. And so essentially what you have is you've 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. You're going to be delegating authority to what we call an attorney, in fact, which is just going to be an individual that you're going to say can act on your behalf in regards to whatever matters that you state they can handle. So, you know, you can be as specific. You can be as broad.

You can be you know, you can really draft out whoever you'd like. You've 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've got there's there's always been a statutory short form P.O.A.

that the legislator is drafted that is just very bare bones. And then you kind of have boxes that you can 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 draft it 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 who are going to be like maybe they're buying a house, but they're going to be out of town on business. So they draft a what we call a specific power of attorney so that their spouse or their partner or somebody can sign for them at closing.

And so it'll be very specific. It'll just say, hey, this my attorney, in fact, Joseph can can sign any documentation related to the closing of the property at one, two, three fake street. And this power of attorney is good for six months and then automatically expires. That's an example of a a very specific power of attorney. But powers of attorney can be drafted as broadly as you want to. One of the power attorneys we use as the most broad folks can make a new will for you, appoint other people to act as your attorney. In fact, if they can't change life insurance beneficiaries, I mean, just do all kinds of things. So at their broadest level, your attorney, in fact, can basically do anything that you could do on your own. They become you in essence. Yeah.

Yeah. It's very important that that you feel comfortable with who your attorney, in fact, is going to be. Sometimes you see folks make like maybe they all have two children and they want both children to be their attorney, in fact, and they have to act together.

I usually advise against that kind of thing for for reasons that we won't go into here. But it can be one person. It can be multiple people.

You can have backups named, but you're giving 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 that's not a problem for folks. They just name their spouse or their partner to act on their behalf when they can't. And some folks don't have that person where they 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 a power of attorney so it's not effective until your physician has said you're 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 has written a letter saying, you know what, Josh is incompetent.

He can't handle his day to day affairs. And then 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 and what you're trying to achieve. Yeah. And, you know, Josh, you said it well, you know, you talk about the downside that the fear really is what you said. You've got to have an individual that you really trust, because if you give that broad P.O.A. out someone, they've they're they're going to have the power to act just as if you would act. And if you do not specify correctly, they're going to have full discretion. And, you know, you may not agree with the decision that they make, but the individuals, the third parties that they're interacting with, they they have to rely on that that P.O.A. so you could get into a tough situation.

And, you know, you mentioned that as one of the primary downsides. And then you came back and you gave the solution to that, which is, like you said, making sure that there's that triggering event where this P.O.A. is not going to take place unless you are officially deemed to to lack capacity or to to to basically be unable to to make those decisions on your own. So I think my recommendation in drafting is going to be, you know, to have that provision, you know, unless, of course, there are situations where you don't need it and you trust the individual or you're 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 P.O.A.s unless you've been advised otherwise, especially if you've got a person you can trust that more broad P.O.A. that that takes effect when you lose your capacity. And then 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 of capacity.

So there's no confusion there. I don't want to scare people either, Joe, you know, where it's very important that people know what they're signing and what it can do and the downsides. But there's also a lot of good sides to a P.O.A. because once you've once you've lost your capacity, right, once you're incompetent, once you need someone to do something for you, if you haven't done a power of attorney, it's too late to do it.

Right. You have to have a power of attorney in place before that happens. And most people, you know, you don't get a whole lot of notice when that kind of thing happens.

It's it's surprise or kind of, you know, it kind of it's nothing. You want to do a power of attorney while you're healthy, while you're and why you're competent, because once once that time has passed and you need help, whoever's helping you is going to have a lot of trouble because they're going to have to be in touch with your doctors. They're probably going to have to go to the courthouse and explore getting a guardianship and get a lot of people involved. Whereas if they have a document, if they have a P.O.A.

in their possession, ready to go, they can just start helping you immediately. And that's the big thing. And one thing that we see a lot of confusion on that I think it's important to mention is, you know, the P.O.A. is great to have when you're alive. Obviously, you know, we've talked about the benefits, but once you pass away, that P.O.A. is it's not going to be relevant. You're not going to be able to use it anymore. And again, there's certain situations where it still has relevance. You know, if you've if you've signed a contract, if that P.O.A. signed a contract prior to your death, you know, there's there's certain narrow scenarios where it may have some relevance.

But for the very most part, it's not going to matter anymore. We see a lot of people get confused by that, you know, that someone will pass away. They're the P.O.A.

and they'll come back referring to the fact that, hey, I've got P.O.A. Well, you're you know, the principal is dead at this point. You can't be the attorney. In fact, for a person who no longer exists, that 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 Outlaw lawyers, Josh Whitaker and Joe Hamer. We are focusing on estate planning for this week. You can find Josh and Joe at Whitaker and Hamer law firm. They're the managing partners.

They're practicing attorneys here in North Carolina. If you've 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. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. You can also email your questions to the program. Questions at the outlaw lawyer dot com. And we'll use those questions on the future program. We've got more with estate planning. We're going to go over health care power of attorney.

That's coming up next. Back on the outlaw lawyers, the Josh Whitaker and Joe Hamer, Whitaker and Hamer law firm, the managing partners. They're practicing attorneys here in North Carolina. And again, 46 combined years experience.

Offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina and Gastonia. Guys, we have a short stretch here, but health care power of attorney. So, Morgan, this is the last document we're talking about is definitely not the least important, but it's it's it came last. But, yeah, will possibly a trust power of attorney, health care power of attorney. Those are kind of the four pillars of your estate plan. And so health care power of attorney is a little different than the power of attorney we were just talking about. So in the previous segment, we talked about kind of 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, you know, conduct your business, take care of your affairs. Generally speaking, North Carolina separates that from a health care power of attorneys. There is a separate statute that authorizes you to have a health care power of attorney prepared that appoint someone to make medical decisions. When you can't.

Right. So under the laws of North Carolina, if your spouse is in the hospital, I think doctors are pretty much going to look to you as the spouse to make these decisions. Or you got an underage kid. They're going to look to the parent to make those decisions. But when that's not the case, a health care power of attorney is what a doctor, what a medical professional wants to see to see who they need to look to to make decisions. If you're unconscious or you're in surgery or just can't make decisions for yourself. And health care POAs are very specific to just that circumstance.

Yeah. And like you said, Josh, you're giving the authority to an individual to make these crucial health care related decisions on your behalf. And just like with that general business related POA, it's something that you can maintain a degree of control over by specifying what things you want to go ahead and make the decisions on yourself.

You know, 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 power, that attorney in fact, just like you could with the business POA. And I think one thing that there's some confusion on with clients we deal with is, you know, what really is the difference between the health care power of attorney and then what is referred to by some as a living will. Can you speak to that distinction, Josh?

Yes. In North Carolina, we really don't have a living will. And a lot of times you'll see it on TV or you might have relatives or friends in like a California or New York and they have very specific statutes that talk about a living will. Living will is a document that basically is fairly lengthy and just goes over a lot of kind of common medical situations you may find yourself in. And you kind of say ahead of time what you would like to have to happen if that situation occurs to you or, you know, it's a little bit different than a health care power of attorney. But North Carolina, the primary document that you see is a health care power of attorney. Now, within that, you can set several limitations on care or things you definitely want.

I definitely want to be an organ donor. You know, I definitely don't want life sustaining nutrition if I have no brain activity. There are some parameters you can set for your attorney of fact, for the person you're appointing to make these decisions for you. So health care power of attorney, very, very important as part of an estate plan. Again, as you it's important for everybody, but as you get older, it's more important than maybe when you're younger.

But something you definitely want to talk about again, like we talked about, Joe, a lot of kids going off to college. These health care power of attorneys are becoming more and more routine so parents can still help if something were to happen. All right, gentlemen, the outlaw lawyers, we got another one in the books. A lot of fun estate planning. Again, you might think it's a little morbid, but you really need to get on top of it. Wills Trust POA is the power of attorney and also health care power of attorney.

Things to consider if you've got your own set of questions. Give the firm a call. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. Leave a brief description of what you're going through and contact information. And an attorney with Whitaker and Hamer will be in touch with you guys. Another great show.

We'll see you on the radio next week. Now, while you're associated by an attorney licensed to practice law in North Carolina, some of the guests appearing on the show may be licensed North Carolina attorneys. Discussion of the show 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 had the opportunity to discuss the facts of your case with you. The attorneys appearing on the show 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 the show, contact us directly.