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Question & Answer with Josh & Joe and We have some good ones!

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
April 1, 2022 5:00 pm

Question & Answer with Josh & Joe and We have some good ones!

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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April 1, 2022 5:00 pm

This week show is dedicated to listener questions. Questions range from blended families and Legacy questions, to Homeowners Association's threatening liens on property. A grandfather passes and the family is dividing up land and a multitude of issues can arise. Attorneys Josh Whitaker & Joe Hamer serve up the answers to these legal questions on this week's edition of The Outlaw Lawyer.

If you are facing your own legal situation and need answers call Whitaker & Hamer 800-659-1186.

Legal, Attorney, Case, HOA, Legacy, 

See omnystudio.com/listener for privacy information.

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This week on Outlaw Lawyer, Joe and I answer your questions. We've got a whole show, just listener questions ranging from a state administration, uh, to real estate, to homeowners associations.

We run, run the gamut. Listener questions all show. At Whitaker and Hamer Law Firm, practicing attorneys here in North Carolina, offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay-Varina, and Gastonia. I'm Morgan Patrick, consumer advocate. We talk legal topics each and every week.

And it's question and answer on the program today. If you've got some questions legally that you're dealing with and you need some answers, I've got a phone number for you. You can also email your questions to questions at theoutlawlawyer.com. Just leave your contact information briefly, what the call or email is about, and an attorney with Whitaker and Hamer will be in touch. And as always, check out the website.

It's a great one, theoutlawlawyer.com. Gentlemen, welcome in. Hope you had a great week. Morgan, so far so good. Can't complain. I, uh, I'm getting tired, you know, as an NC State fan, uh, we can't, we keep getting all this bad news. Did something happen?

I don't understand. Uh, we lost, we lost a couple of kids, uh, via the transfer portal and, uh, we're getting all this bad news. And then on the other side, all I hear about is this, uh, this dang, uh, Final Four game is driving me nuts. The other two programs in the triangle, ACC programs, I should say, yeah, uh, they're going to be dancing, but it's never happened before. Uh, North Carolina and Duke meeting, it's hard to believe, but meeting in the NCAA for the very first time.

And it just happens to be for a ticket to the national title game. So yeah, stakes are high. It's terrible. It's literally terrible, man.

No, I think, no, I think exactly. I think both fan bases are going to agonize and then the losing fan base, man, I tell you that's going to be tough. Yeah, it's going to be, if you're a neutral fan, like if you don't care, then, then you'll, I mean, yeah, you're going to enjoy the game.

Um, if you grew up and especially if you grew up in North Carolina as a Duke or Carolina fan, and you're like a true, like scream at the TV, get irrationally angry at the result of games type of fan. You're going to, you're going to be miserable throughout the game, unless it's like clearly decided in one, you know, either direction and one team like jumps out to an insurmountable lead. It's going to be agony, man. It's going to be misery. It's terrible.

That's all I got. It's I think a lot of fans dreaded the possibility of this happening. And, and now it's now it's happening. And, um, yeah, something like this shouldn't have any effect on anyone's life. But, uh, for whatever reason, man, it really it's it stresses you out as a, as a fan. Everybody's like, yeah, just enjoy it.

No, no, you can't enjoy it. I was really rooting hard for Miami. I had all my eggs in the Miami basket.

That's who I was going to report no matter what. Great. Yeah, that's a good team. Good team. Well, that was terrible, man.

That's all I got. It's, it's really bad. And you know, you always, if you put together a bracket at the beginning of the year, you're a Duke of Carolina fan. You kind of see the, the potentiality for this to occur. And, you know, we've come close a couple of times. Uh, 91 was the last time that it was really a possibility.

They were both in the final four, too young to really remember that. But, uh, this is, it's bad, man. It's really, really bad. And, uh, and it's going to be, it's going to be one of those things where I don't know that if you're a, if you're a big fan of either team that you'll get much. I mean, you're just going to be stressed out there in the game, but it's going to be a really, really fantastic feeling for one side. And it's going to be an absolutely horrible feeling for the other side. And I tell you what, man, it's, you know, you, you can say the pressure's not on either side or not more so on either side.

And that's debatable. You can give reasons for why there's more pressure on one team or the other. But, uh, I, you know, Carolina fans in particular, they've really clung to that. The fact that they beat, you know, coach K in his final home game and they were sending them out on like a one game losing streak. Uh, and that was the last time they played each other and that would be the lasting memory. And I tell you, man, if, if Duke beats Carolina in the final four, that that's irrelevant.

Like no one's going to care about that ever again because it's trumped. But if it goes the other way, oh, it's terrible. It's doubly terrible.

You're right. You're in, you're in, you're ending, uh, you know, the most historic, most successful coaching career in history. You're handing them an L in a national semifinal and you're on your way to the national title game. It's really bad.

It's really bad. And I don't know, it's going to take an emotional toll on both teams to where you got to think it's going to be terrible. You got to think it's going to be difficult for, for whoever wins the game to, to pick it back up and perform well in that national championship game. I wish there was ever a way everybody could lose. I wish there could just be two, two losers, maybe some sort of four foot situation. Look, Josh, as a big Duke fan, if you told me right now we could guarantee that Carolina would also lose, I'd take a Duke loss. If we could just disqualify both of them. Carolina losing means that much to me.

In the end, in the end, we just need to kind of take a big, deep breath and say, you know what? It's just a basketball game. I'm not going to watch it.

I'm, you know, WrestleMania is on Saturday, so I'm going all in on WrestleMania. I'm not going to pretend like it's not even on TV. Dude, it's a train wreck. I'm watching it. It's a train wreck.

I'm watching it. You've really, the things that bring you joy, Josh, I just don't get it, man. I just don't.

You've really changed a lot. And since your days of being my rec league basketball, your love of the game has really taken a hit. I can't do it, man. College basketball and the state of NC State basketball, those kids played hard. I don't want to be a complainer, but you just can't, you can't, as a true state fan, you cannot garner.

There's no bright side from anything that's happening right now. Like you just have to, college basketball doesn't even exist as a true state fan, a true to life, true to life state fan. I think your, your hatred of Carolina should, should win out over your, your hatred of Duke and you should be pulling for Duke in this game. Well, I'm not rooting.

Yeah, I can't root. I can't physically root for Carolina in this situation, but I don't, a Duke win is only slightly, slightly better. It's slightly more, I don't know, you know, we watched the Wolfpack women, we watched the Wolfpack women games here in the tournament. What a game, what a game. That UConn game was a big game. Those, those girls played hard and that was, my boys were all into it.

Like we were all in on, on Wolfpack women. So we had a lot of fun watching women's basketball. But, but that's about all the joy we got from basketball. I'm going to be proud of your kids. Cause, cause I, I spent some time with your kids watching the, the, the Duke Michigan state NCAA tournament game. They had a great time watching that game and I saw it in their eyes.

I saw the, the hope in their eyes. They don't generally get when they watch a college basketball game. Well, it's like, you know, my kids, you know, I think I mentioned on the show before I'm born and raised here in Raleigh, I married into a family of Western New Yorkers. And so we get, we, we have, we watched the Bills in our house and the boys were at a very impressionable, impressionable age the past couple of years and the Panthers have just, you know, died out. And so the Bills have won them over.

So I've got three lifelong Bills fans who will only marginally care about Carolina, the Carolina Panthers. And so I'm worried that's going to happen to state basketball. It's hard to make these kids. I saw it happen to myself, man. I literally saw, I could see, I could see the transition young, your, your oldest boy, man. I could see him wanting.

He wanted something better for his life. You can't, you can't make that kid root for, uh, root for state. I mean, we got football, so we got football coming up. We had to, uh, you know, we got our season tickets to football. We've got to make a decision on state basketball tickets, uh, this week.

And that, that I kind of think I made that, I think that made that decision yesterday. So, uh, but anyway, I'm glad other people in the triangle have things they can enjoy and watch. State fan, no, one's going to enjoy if you're in the triangle and you're a true fan of either team, you were, no, one's going to enjoy watching the game. Josh, they, the, the result will be enjoyable for one side or the other, but the actual physical process of watching the game for a true fan is going to be painful. I think the only, I think the only way a state fan could come out of winter in this as if Carolina and state play like a, a crazy record breaking 10 overtime game do barely wins vanquishes Carolina, but Duke is so exhausted. They're like run over and massacred in the championship game. I think that's the only way the state fans could even remotely. Are there two other teams in the final four?

No, one's talking about it. Well, they're going to get the benefit of, of playing an emotionally drained team potentially. And, but I maintain, and this is going to sound crazy. National championship game doesn't matter remotely as much to either of these teams after this game, you know, whichever team wins this game. Oh yeah, this is much more important. Yeah, well, it is. And it isn't, you know, they, that, you know, you hear both coaches that that's what they're stressing is we're here to win a championship.

I get that. But for fan base purposes, like it's going to make losing a national championship much more palatable to whoever wins this game. Well, uh, I hope it goes horribly somehow and I'll be watching WrestleMania, uh, and I'll check in on Twitter and see what's happening. If it gets close, maybe I'll flip over, but, but otherwise I'm going to pretend like, uh, it's just WrestleMania.

That's it. Do you, um, I didn't, I don't watch award shows. Did you guys watch the Oscars? You see all that happen?

I gotta be totally honest with you guys. I thought it was this upcoming week and I totally missed the Sunday night thing because we were watching, you know, I was watching golf and doing other things and I totally forgot about it. I didn't watch it. I wouldn't watch it if I knew it was on. I didn't know it was on, but I still wouldn't have watched it if I knew it was on. But as soon as I saw, uh, social media blowing up with, with reports of what happened, I didn't watch the actual show, but I watched like every clip imaginable and, uh, really dissected it.

Like as if it was some huge, like conspiracy thing. Uh, very, very, it got me to pay attention. Well, that's good.

That's good. I don't know much about it besides, you know, what I've seen on, uh, on social media. I haven't really dug deep into it. I know some people think it was fake.

Some people think it was real. Um, Chris Rock is going to be in town in April. He's going to, I think he's going to be over at Deepak. It's something I want to talk to him about.

Get him on the show. That might, that might be a, I wonder how that show is going to go now with all this, uh, all this controversy, but, uh, he's gotta be staged. Really? I mean, I initially thought staged, like my initial reaction was staged.

And then I watched like 700 clips of it different ways. And I don't, man. Because if it's not staged, then what's the angle? What do you, I mean, you could say no, no press is bad, but you know, any press is good press. But what, I just don't see the angle. I, I, well, they have a, they have strict rules about conduct. Um, and the Academy may take the Oscar away. I know they're thinking that, but they let them get it. And then, you know, he gets the standing of, I don't, I just don't see them doing that now.

Cause what's the point now of doing it? And then, and then, yeah, in the following year he has to present or will he, I mean, it's, they say they're going to take a couple of weeks to make some kind of decision, but it, it certainly it rocked everybody's world, especially social media. Man, it's insane. It was insane, utter insanity, you know, assuming it was real, just complete insanity. Well, I like to see Chris Rock, uh, file it like, you know, assault charges. That's what I'd like to see.

He declined to initially. So, um, it was insanity, man. Like I said, it was, if nothing else, it, it made me at least pay attention to that aspect of it. And, um, it was very interesting to say, to say the least very interesting. A lot of memes too, came from this, a lot of very funny memes.

So that was, that was a good development. I think that's how I knew it happened. I think I saw a couple of memes. I was like, what's this madness? And that's the thing.

That's the way we get a lot of our, a lot of our news about popular culture these days is you'll see like 700 memes and you'll have to go look into, so you can understand what's actually being made fun of. Will Smith just did a big interview on CBS Sunday morning. Uh, Morgan, now a couple of weeks back, I didn't watch it though. I skipped ahead.

It was boring me. Up until this incident, I mean, Will Smith, arguably one of the most popular actors on the planet. People just like him. I mean, he's a likable guy. He's kinda, he's kinda on that same level as a Tom Hanks. He's done so many memorable movies. Um, so this was kind of a shock to, you know, everybody that's a fan of Will Smith.

Um, so I, it's going to be interesting to just watch the fallout. I know he's apologized. He was very tearful. Uh, you know, he and his wife have had, you know, their issues and there's, you know, there's talk that they've, they've got somewhat of an open relationship and you know, he felt like Chris Rock overstepped with the joke, but it certainly looked like early on Will Smith was enjoying the joke.

Yeah. And, and his apology, that's, that's another issue I had with it. You know, he, he, he's since issued more of a formal written apology that kind of read like it came from his publicist, but if you watch like his acceptance speech and you hear him after the fact, he really wasn't apologetic. He kind of defended it.

And, uh, you know, he tried to say, you do crazy things for love, things like that. And it's just that to me personally, it was a bad look for, for Will Smith. I mean, you're a public figure, you go to an award show, you sit in the front row, you understand what's coming. You're gonna, you're gonna, you know, get roasted essentially. And, um, you know, you never want to make light of an illness.

And, and I don't know that Chris Rock was even aware that, you know, Will Smith's wife had the alopecia and had the issues with that. But at the same time, man, you can't, we can't as a society condone open hand face slapping a performer. Maybe we should, maybe that's a big change.

We should make a big shift in that, you know, that's acceptable now under certain circumstances. But anyway, Folks, the outlaw liars, Josh Whitaker and Joe Hamer, we are going to get into listener questions. That's coming up.

Looking forward to this. Again, you can get in touch with Whitaker and Hamer. If you've got any legal situation you're dealing with, I've got a phone number for you. 800-659-1186. Again, 800-659-1186.

Leave your name, contact information, briefly what the call is about, and an attorney with Whitaker and Hamer will be in touch. You can also email your questions to the show. That's questions at theoutlawlawyer.com. We'll use them on future programs. And just a reminder, Josh and Joe are practicing attorneys here in North Carolina and the managing partners at Whitaker and Hamer law firm offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, and Gastonia.

We're back right after this. You're locked in to the outlaw lawyers. Your hosts are Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer law firm, practicing attorneys here in North Carolina offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, and Gastonia. I'm Morgan Patrick, consumer advocate.

We get into legal topics each and every week, and you've probably got questions of your own. If you want to get in touch with the firm, get some answers. Number to call 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 will be in touch. And you can always email your questions to the show. Questions at theoutlawlawyer.com. Guys, we've got questions. I love this part of the show, so let's get into it. Well, Morgan, we got a couple of questions. The first one I want to tackle here at the firm, here at Whitaker and Hamer, we do a lot of estate planning for clients, and we do a lot of estate administration.

So that's kind of two sides of the same coin. So we help people get their will squared away, power of attorneys, kind of plan where their assets are going to go, trust, things like that. That's all estate planning. And then estate administration is once that client, we don't want any of our clients to pass away, but once that client passes away, a lot of times we'll handle the estate administration. So we take that plan they put in place for their assets when they passed away, and then we help execute that plan when that day comes. And so the first question we have this week is kind of an estate planning question, and I've kind of rephrased it. I always paraphrase these things to take out names and things like that. But here's how I'm going to phrase this question. So we've got a listener who said, I am remarried. I have kids with my first spouse. How do I make sure my kids and step kids are all treated equally when I die? So in this fact pattern, attorneys always make things fact patterns.

In this fact pattern, we have a client. I'm going to make him a guy. He was married. He had some kids.

That didn't work out. It sounds like he's divorced and he is remarried and has, we'll call, we'll have step kids. So he's got his new wife has some kids.

And so they all live together. And so he's taking care of his, he's got an ex-spouse. He's got, he doesn't give us a number, but we'll say he's got two kids from a prior marriage. And then he's got his two step kids.

And I'm going to make another assumption in this fact pattern. We're using the term step kids, step children. So he has it adopted. You know, these aren't his kids. You know, he's not the father of these children. He's helping to take care of them. We're also going to assume he has not adopted these children. So these children are not not his.

The law is very clear on on who your heirs are. If you don't do something, if you don't plan accordingly. And so, Joe, this is that blended, we call this the blended family estate plan. And these these can be these can be tricky. They can be tricky, Josh. And you said one thing that really stuck with me early on when you were setting this up. And that's we don't want our clients to die. I think we can all agree. I think we can all agree that that's the case. That should be the tagline for our firm.

We just roll out advertising. Whitaker and Hamer, we don't want you to die. But yeah, you know, this is a tricky situation, Josh.

And you said it. We've got we've got what we would call, I guess, your biological blood children that, you know, you you that were born of the first marriage. They are the kids. And then you've got you get the remarriage, you get the step kids. And this individual in this fact pattern could very much love these step kids and treat them treat the kids like they are his own children.

But, you know, the amount of love he has in his heart for them and the way that he treats them. And no matter what he does, there's going to be a legal barrier in the event that he passes away in the absence of some some careful, strategic estate planning. Yeah, that's the thing. I guess that's the situation to look at. So if he doesn't do anything.

Right. So this gentleman, a valued listener and potential client of Whitaker Hamer, if he does nothing and passes away and everyone survives him. So we'll make some more assumptions in our fact pattern here.

So we always have to kill these guys off to make our fact pattern work. So something happens to him. His the laws of North Carolina, it's called intestate succession, since he does not have a will, has not put an estate plan together. The laws of intestate succession are going to determine where his assets go after his death. And then and so here, let's say I must say he has two kids from a previous marriage and he's got a current spouse and that's who's going to inherit everything. Right. The current spouse is going to technically inherit a decent chunk of his of his assets.

The law is always wants to protect the widow. And of course, his children will will inherit percentages. So these are all percentages.

These aren't specific assets. You know, two kids and a wife, they're going to split everything. Well, you know, thirds. Right. So if you have a house, everybody gets a third. Right.

That's not always easy to hand out to people. And and so that's kind of that's kind of the default. And in the default, these step kids, stepchildren would would not receive anything, no matter how our deceased husband felt about them or cared for them. You know, they're not his children. And the law is very, very clear about what happens in this case. So if he doesn't do anything, his step kids will not receive anything in this situation.

And so that's that's kind of the default. And so to prevent that, he would go to an attorney and he would set up an estate plan. And and Joe, in that case, what do you think he'd be?

What would your advice to him be, assuming he was to take care of the stepchildren just like his own? And that's it. You know, that's the thing. The drawback to failing to have any kind of an estate plan in place or having, you know, an outdated estate plan that doesn't account for your current circumstances, because this this guy could have an estate plan in place, but it could be, you know, it's likely that's going to be something. Well, it's not likely.

It's a it's a certainty. You know, if he's prepared an estate plan during the time that he was initially married, he's not going to have made any kind of arrangements for these for these step kids that he doesn't even know were going to exist in the future. So and you mentioned the fact that, you know, you don't you can't have those specific what we call specific bequests to individuals when in the absence of a well-crafted estate plan and the absence of a will stating otherwise the statutes that dictate how your assets are going to be distributed. It's going to be very generalized.

It's going to be percentages. And you just lose every aspect of control after your death if you fail to account for it. You don't you don't put that into writing in the proper way. So, you know, my recommendation, you know, there's a lot of recommendations as far as you can keep it very, very simple or you can make it far more complicated. But just as a as a very simple recommendation, the like baseline, what I would recommend is draft either revise or draft an all new estate plan that accounts for these step kids. And, you know, whether you craft a will that's going to leave them a percentage or some specific items that you would like them to have or whether you wanted to create a trust. That's going to establish a trustee that's going to, you know, operate for the benefit of those step kids. You need to have something, some kind of concrete, intangible estate plan that's going to account for those step kids. Otherwise, they're going to take nothing.

And I'm kind of taking this a step further than our question. You know, in our fight pattern, we've killed off our loyal listener here and we're looking at how his assets would be would be divvied up under the law. And then, of course, if you make a will, things are going to get divvied up however you want within within reason.

There's some things you can't do. But if you draft a will and you can do everything you do, anything you want to, you can say, hey, my you know, I've taken care of my spouse and she has assets in her name. You know, I want all the kids to split certain things or, you know, I want stuff to go into trust.

I want to make sure her school's paid for. And your estate plan is wide open if you sit down with an attorney and you draft the relevant documents that you need to make your plan happen. If you don't do that and you and you die without that in place and the state has a seven page statute, that statute is going to determine, you know, where things go. And there's not anything you do about it once you're gone.

But I would point out, you know, we were killing off our listener. He's got a surviving spouse. Usually when we talk about estate plans, we usually craft it so that your surviving spouse doesn't really have to do anything.

Right. So you you're creating this will saying, I want all my kids and my step kids to share and share alike. But if we've done your estate plan properly, there's not really anything in your estate. So your will is kind of, you know, a catchall.

And so you may have to think about other ways to provide for your for your children. You know, life insurance policies, setting up a trust that has real property in it or some asset you want to make sure goes to them. Sometimes we have to create assets so that when you pass away, there are things in place for your for your kids. Since you're surviving spouse, I'm usually you'll share some bank accounts, you know, your residence, maybe you and your your current spouse. And so that'll just automatically go to your spouse. So there's a lot of things just when you die by operation of law, if you've set it up, your spouse is just going to keep on moving. Right. So you may not even have a lot of estate assets if you're the first spouse to pass away. And so there's always some thought, you know, like I said, life insurance or trust or something to create while you're alive, that'll make sure your your kids are taken care of when you pass away.

Just something something to keep in mind on that blended family discussion. We've got a lot of questions to go, guys. So we're going to get to it. You're listening to the Outlaw lawyers, Josh Whitaker and Joe Hamer. You can find them at Whitaker and Hamer law firm. They're the managing partners there. They are practicing attorneys here in North Carolina.

If you've got a legal situation you're facing, you've got questions that can be about really anything. You can call this number. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. And just leave, you know, a brief message. What it's about. Contact information. And an attorney with Whitaker and Hamer will return your call. You can also email your questions to the show. Questions at the outlaw lawyer dot com.

We're going to take a short break. We're back with more questions from our listeners right after this. Welcome back into the outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer law firm. They're the managing partners there. Offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina and Gastonia. And again, the fellas practicing attorneys here in the great state of North Carolina.

If you've got a legal question of your own, you can get an answer. Here's a number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. Leave your name, contact information, briefly what the call is about and an attorney with Whitaker and Hamer will be in touch. You can always email your questions to the show and we'll answer them on the air on future programs.

Questions at the outlaw lawyer dot com. What's up next, fellas? Well, Morgan, the next question I have from we get a lot of this. We get a lot. We get this question in a lot of different ways.

That's what I wanted to say. It comes up in different ways. The paraphrased version of the question I'm going to use for today is basically what is the difference between a health care power of attorney and a power of attorney? And the answer is there in the in the in the name. But this still causes a lot of confusion for folks. Joe, what's the what's the difference?

The answer the answer is right there in the name. That's that's a very simplified way to put it. But, you know, there's a few key differences and there's a few few different ways that these two things operate in the way that that I'd encourage you to look at it just for the purpose of simplifying what could be a more complex answer is you've got the health care power of attorney. And you what you've got what we would call just more of a general power of attorney. And that that general power of attorney is going to be used more for day to day type of activities. You know, cutting checks, making decisions, things that aren't you know, it's tough to just use, like you said, the exact wording of the two types of poas, but things that aren't health care related decisions.

These are more just general day to day type of operations and decisions, whether they involve money or assets or whatever they may be conducting your day to day business. That's what that general power of attorney is going to apply to the health care power of attorney, just like the name implies, is going to be more specific to health care related matters. It's going to apply where it's it's a it's a concern of an individual's health. And generally speaking, that's going to be something that's going to take effect in the event of an individual's incapacity when that person is incapacitated and can't make those decisions themselves. That is when that that health care power of attorney is going to become extremely valuable, because if you've got a situation where, you know, something happens to you, you aren't in your right mind, you can't communicate what you want to happen with yourself. You know, you could have a person that's got a general power of attorney. And if that general power of attorney doesn't specifically address the health care related matters that are at issue, you're going to be out of luck. And that power of attorney is going to be essentially worthless for that purpose. Yeah, two very different documents.

They're both given life by different statutes in the North Carolina general statutes. And so, like Joe said, the health care power of attorney is something everybody should have. It's become real popular over the past decade or so, especially with kids who turn 18 and are going off to college and still probably rely on their parents for help and maybe call them the doctor and, you know, doing whatever needs to be done medically, get medical records, things like that. And so, you know, most everybody who's an adult should have a health care power of attorney. It's a very easy form.

It's not overly complicated. It speaks to maybe some forms of life ending treatment you may or may not want. But basically, you're appointing someone for your doctor to ask questions to if you're unconscious, you know, you've been in an accident or you're not of sound mind and you can't make your own medical or health care decisions. The doctor needs that in his file so he can ask, you know, I would argue even a spouse or if you want a child or if you want multiple people. I usually don't recommend that in my consults. But anyway, that's who you're treating physician is going to look to in a medical emergency where you can't make your own medical decision.

So that's handy to have. And then Joe, like you said, the general power of attorney is more complex. You know, that's one that obviously you can give somebody a child, a friend, a family member, a professional, you know, your CPA or your attorney or whoever. You can make someone your attorney. In fact, they can act on your behalf to take care of daily business, specific business, a specific piece of real property. It can be drafted as general, you know, deal with everything or as singular as again, just dealing with what I need you.

I'm going to be out of the country. I need you to take care of selling, you know, one, two, three fake street, you know, one, two, three fake street. You know where that came from? No, Joe, I'm going to guess the Simpson episode.

It did come from the Simpsons. If you go back, there's an episode where Bart, I don't remember it was, this was the B plot. I don't remember what the A plot was, but Bart is strolling through like a courthouse and they're having an auction and no one's bidding. So he bids a dollar and it's this old warehouse that's falling down as one, two, three fake street.

But anyway, they could take care of just this. Bart could appoint, and I think he does pretty much. I think he puts Millhouse in charge and Millhouse ends up wrecking the factory. It all falls down.

It's very comical. So in this situation, Millhouse is the attorney in fact for Bart, legally speaking. That's right.

Yeah, I had that. I had a law, I can't, I'm not gonna say his name. I'm not gonna put him out there, but I had a law professor, law professors. This is what we do in law school. They give us fact patterns and we take case law and statutes and we try to analyze these fact patterns. And sometimes they're fact patterns from cases, right? Really famous cases. And sometimes they make up names, you know, and then sometimes you have a law professor who just takes cartoon characters and just puts those in your very serious legal fact patterns you're trying to analyze. I have a feeling if I was a law professor, that's probably the way I'd go.

It'd be a lot of Simpsons characters names in our fact patterns. But anywho, powers of attorney, very serious, lots of trust there, right? Because if you're giving someone the power to do something on your behalf, they can do it and people can rely on it and they're protected.

It creates a fiduciary relationship. So that person has very strict legal duties to do what's best for you. Power of attorneys can take effect immediately, right? So as soon as you sign it, it can be set up to be effective. And that person can go do whatever you've authorized them to do on your behalf or it can take effect later. So you can go and sign it. But in the body of the document, we can say, hey, this won't take effect until a doctor decides I'm not competent to handle my own affairs, right? So you can have one that won't spring into existence until a doctor says, hey, Josh is done, right?

Josh can't make his decisions anymore. This person is going to be their POA. And so when you're doing the estate plan, that's the hardest part for some people, right? When I'm doing an estate plan with folks, one of the hardest things for them to do is figure out, okay, who's going to be the guardian of my minor children if something happens to both me and my spouse, right?

That's one of the hardest questions people have is deciding on who that should be. The second hardest thing is deciding who should act as my attorney. In fact, you know, it's usually going to be a spouse.

And then if something happens to that spouse, you got to name a number two. And that's hard for folks. It's hard to, you know, especially as people get older, it's very hard for them to turn over that kind of decision making to someone else. No matter how much trust is there, it's just not always easy.

It's tough, man. And like you said, a lot of trust is required. And that's why I think we as attorneys, we would encourage very careful drafting of these documents and making sure that you're specifying each and everything you want these individuals to be able to handle. Because, you know, you mentioned the fact that a general power of attorney is a very complex document.

That can be true. And I think a well drafted general power of attorney is something that's very complex. But you've also got what's called a statutory short form general POA, which is just literally it's defined by statute to just list out the things and you go in and you initial beside it. So they can always, you know, they can be fairly straightforward as well.

And you can just give blanket authority to somebody to do pretty much anything as far as that POA goes. And I think I would encourage and we would encourage our clients to carefully consider exactly what authority they're given out. And again, that trust piece is essential. So have people you trust.

It does make a difference. And we've been at this for a while now. I have seen people abuse these, right? So I've seen the people who appoint their kids or someone attorney in fact, and that attorney in fact tries to make self-give gifts, make deals that benefit them more than the person they're acting for. Basically violating these fiduciary duties that exist. And so that definitely happens. And so it does necessitate some thought. And usually people have that one person, right? People like, hey, if something happens to me, I want Josh to make those decisions. He'll do what is in my best interest.

And they feel real good about that. And then we start talking about what do you want to name a backup? You know, do you want names?

Do you know if Josh passes away? Do you want to have someone else there? And they're like, that's usually tough, you know? But anyway, lots to think about. Very important documents, very central pieces to any estate plan.

But take some thought. Question and answer continue with the Outlaw Lawyers, Josh Whitaker and Joe Hamer. Stay tuned. You can find them at Whitaker and Hamer Law Firm. If you're going through a legal situation, if you've got questions, we've got a phone number for you. 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 will be in touch. You can always email your questions to the show and we'll use them in upcoming programs. You can also send us your questions at theoutlawlawyer.com. We're back with more questions and answers right after this.

We'll be right back. The Outlaw Lawyer.com. We'll answer those on future programs. Always check out the website. Great one for you. Great resource.

Theoutlawlawyer.com. Gentlemen, take it away. So our next question.

I get this, Morgan, I get this question a couple of different ways. Some people really like their homeowners association, the HOA. Some people really like their HOA and what it does for keeping certain standards up in a community, protecting resale values, whatever you think homeowners associations do that's good.

There's people out there that like them and there's people out there that avoid them like the plague, right? They don't want to buy anything that's subject to covenants that creates an HOA. And so we see both sides of that come through our office.

But I've had a couple of times and this listener in question, I've kind of added this in here, this situation I see. But basically, this question is going to start out, I didn't know I had an HOA when I bought my house. So basically, these folks bought a house. They were not informed by the sellers that there was a homeowners association. And so they've closed. Their closing attorney failed them. That should have probably come up at closing and the seller certainly failed them.

But we won't get into that. They're in a house. They didn't know they had an HOA.

They do. The HOA is saying, I owe HOA dues and are threatening to file a lien. Can the HOA do that?

And so the short answer is yes, right? You don't have to have personal notice, right? When we do a lot of real estate closings at Whitaker and Hamer, Joe and I spend a lot of time dealing with real estate closings and litigation. And basically, when a developer starts a neighborhood, a subdivision, they'll record covenants, protective covenants. And most of the times in our day and age, those covenants will authorize or call for an HOA to be set up. And that HOA can have further rules and things that it does. But so you can, you know, these folks, it's unfortunate, especially if they're trying to dodge an HOA.

But they've got one. And they owe dues. As long as the dues comport to the covenants and the rules of the subdivision, they can be levied.

And if you refuse to pay them, HOA has got a few things they can do to you. Joe, I don't know if you've seen this one before. Yeah, I've seen it. It's not super common just to see this.

You do see it. But just as a general, just as a general principle, you know, it's important to understand your notice of any kind of any kind of real estate title related issue, defect, it's going to have very little effect on the fact that that issue is going to be a problem for you, because these are things that are there. And so, you know, you can't use as a defense to nonpayment of HOA dues the fact that you didn't understand or realize that there was an HOA, because if you could, most likely that's what everyone would say, right? I didn't know there was an HOA.

I'm not going to pay you any money. And it's really irrelevant because it's a public record issue. And this is something that's on record.

So using that is not going to be any kind of a defense. And I think it's also, just as, again, a general principle, if you're buying a house and you're buying a house in a subdivision, I think you just assume that you've got an HOA. I mean, I think that needs to be your assumption. Now, that's not always the case. There are exceptions to that. You've got some, you know, there's a threshold of homes where if you've got a smaller subdivision, you may not be required to have an HOA. You could have a larger subdivision where everyone's kind of come together after the fact and decided we don't really want to have a formal HOA or have HOA dues. So there are exceptions to that, but I think it's just a safe, just as a general assumption, you just assume you're going to have HOA dues and you seek out that information and understand what's going to be due from you. But another thing that kind of plays into this is the fact that you're coming to an attorney to handle your closing. And it's going to be hard to be surprised by this because your attorney is going to be doing their due diligence and they're going to be pulling that information. And, you know, 99.9% of the time is if you've got an HOA, there's going to be some money that's going to be due from you at closing. There's going to be some information that has to be provided to that HOA. So you're going to see these things on the closing disclosure when you come to the closing table.

So you really should not necessarily be surprised by this. But, you know, assuming that you are surprised by this, HOAs do exist. HOA dues also exist. And if you don't pay those dues, you can absolutely have a lien filed on you. These are all things, this authority that's given to these HOAs just by virtue of law. And you can't avoid it by just saying, hey, man, I didn't realize this was the thing.

Yeah. Notice in the real estate world is not personal notice, right? It's notice, you know, at the registered deeds or the clerk's office or, you know, recorded registered documents at the courthouse.

That's how you get constructive notice of these things. And if you're one of those people that really want to avoid an HOA, you know, when you talk to your real estate agent, when you're looking, you know, you need to be very vocal about that. You know, so hopefully you don't even look at anything that has an HOA, assuming the sellers have been forthright and, you know, that kind of thing. And then you need to let your closing attorney know. So closing attorneys, when we do searches, we'll find HOAs, we'll find covenants.

But we need to know if that's something you object to, we need to have a conversation. And the closing timeline is always pretty short, right? We're always, you know, two to four, three to five weeks away from closing once you go under contract. And so things move pretty fast. So that's something you need to let everybody know, right?

Because if you, yeah, that's something you need to be upfront with. But an HOA can definitely file a lien, right? And they'll file a lien and that lien will sit there and that'll be something that has to get paid off if you sell the house or you refinance.

There's all kinds of ways that can affect you negatively. And then at some point, if there's enough owed, the HOA could decide to foreclose on you. That's one of their remedies at law is to say, hey, you owe us $5,000 in dues and fines and attorney's fees and all kinds of stuff. And we're going to foreclose and sell your house at auction, right? And so that's kind of their big, that's the big stick that an HOA holds because they can foreclose on you and sell the house. And of course, whoever buys it at auction would own it subject to if you have a first mortgage or an equity line or, you know, whatever that's still there and that's still in your name. But you no longer, you know, own your house. So HOA can do a lot of stuff, good and bad, depending on how you view them.

But yeah, for this question, I would pay those dues lickety split and make sure you are on good footing with your HOA because, you know, they got some ways to make your life a little more complicated, I guess is the easiest way to say it. The outlaw lawyers, Josh Whitaker and Joe Hamer, the area growing in such fashion that there are going to be a lot of neighborhoods and there are going to be a lot of HOAs. So if you've got any questions about your situation, we've got a phone number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. And just leave your contact information briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. You can always email your questions to the program questions at the outlaw lawyer dot com. And we will feature those questions in an upcoming show. We've got a few more questions for you.

That's coming up on the other side. Stay tuned for more. The outlaw liars. Welcome back into the outlaw liars. You have Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer Law Firm, your hosts of the program. Each and every week we get into legalese. They are practicing attorneys here in North Carolina.

They have offices conveniently located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina and Gastonia. If you're facing a legal situation and you've got questions, we've got a phone number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. You can leave your contact information briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. And as always, email your questions to the program. We'll use them on future shows.

We'll answer them for your questions at the outlaw lawyer dot com. Guys, we've got time for at least one more question. Where are we going? So our next question, I get this a lot. And so we've we've kind of paraphrase it to include the most common situations we've we see. But in this listener question, we've got we were selling family land.

So we're seeing that a lot right now. We've talked about that, how everything is kind of kicking up a notch in the real estate market. And almost anything that can be on the market here in Wake and in Johnston and Harnett and surrounding counties is getting sold. So these folks are decided it's time to sell the family farm, the family land. So they they went out and sold it. Somebody agreed to buy it. And now there's a closing attorney involved in the closing attorney won't close this because we didn't open a state for my grandfather. What now? And so, Joseph, I know you see this one a lot.

We do see it out. I was actually just talking to to a client about this, basically this exact issue the other day. So it's it's a thing, man.

It's a common it's a potentially common thing. And, you know, when you talk about, you know, a grandfather, a great grandfather, you talk about an older generation. You know, we always stress very careful estate planning, avoiding probate, avoiding these exact type of issues.

But you get a lot of folks who are who are a little more old school in their approach and and these men might not have been things that they necessarily took care of. They may have not cared at all, like like as in this situation where there was just never an estate open. And so as to the what now, you know, it really depends.

It depends on the exact situation. It depends on how your grandfather owned title. It depends on who their heirs are. And you can get into some some pretty complex situations just based on, you know, family structure, number of children that were had, where those kids are at this point. You know, we as attorneys, we we're going to search title.

We're going to find as much as we can. And when we get into a situation where there's an issue like this on the seller side, it can frustrate our buyers a lot of times. But we represent the buyer. We're conducting the title search on behalf of that buyer. And we can't really assist with seller based estate issue. So what we're going to likely tell the seller to do is to go and hire independent counsel, hire an attorney to assist you with resolving this issue and kind of put the burden back on that seller. And that that that upsets a lot of people.

But it's basically the way we have to watch it due to just due to bar rules in general. Yeah. When we represent a buyer and we do that title search, that's all we got. Right. So if you're selling the family farm has been the family for years and years and years, we have to do we have to do a certain search. We we got one right now and we're back in the eighteen sixties because it was it was family land. And, you know, there's not a lot of deeds.

Right. You know, normally if I go if I decide I want to buy something from Joe, we'd have a closing. I'd have a deed recorded and there'd be evidence that I bought this property and I'd have my deed. And so when you inherit property, the only way a third party, a buyer, a closing attorney, someone else looking at it would know that you bought it is if an estate had been open, because if in this situation, the grandfather, when he passed, if an estate had been open, it would list all the heirs, what shares one eighth, one sixteenth, one thirty second, you know, whatever share they got to the land, the estate itself acts like kind of like a deed. It's a public record that this man has passed, where he lived and who his heirs were. And we can work with that. But when you take that out, we don't know your family history.

Right. We don't know that, you know, you had an uncle who died early and his two nephews, one is illegitimate, one's legitimate. And we can't figure it out without these, you know, this estate.

So there's some workarounds. But, you know, I think the long and short of it is this person has a problem that's going to take an attorney or multiple attorneys to figure out. And so you always hear real estate is a non probate asset.

I think that confuses a lot of people. But even though it may not pass through an estate, the estate is a good record of who it did pass to. And then if you don't do it, then people die. It gets inherited again. Like we got one now where, you know, one of the uncles didn't have an estate and his his kid died, doesn't have an estate. So we're like four generations down now with no public record of who the owner is. So definitely, definitely some something that takes an attorney spending some time with it.

Exactly. It's going to it's going to take some time. And I think the important thing for if you're in this situation, there's a few things that you need to keep in mind and a few things you need to do. Step one is you need to get on resolving the issue as quickly as possible. So the sooner you can, you know, retain an attorney or start doing the legwork on getting that estate filed, the sooner you're going to be able to resolve it and get to the closing table. But that being said, these things, they can take time and they generally do take time.

So you don't need to expect this to be a quick or easy fix. You need to plan on it taking a decent amount of time. You need to, you know, you or your real estate agent needs to set the buyer's expectations that, you know, this is an issue that's going to take a little while to resolve. And depending on what your contract says, you know, you could be in a situation where you're going to you're going to end up basically either being in breach or having to seek some kind of termination of that contract yourself. Or you're going to be in a situation where the buyer is going to going to give you some leniency. You know, you may come to an agreement to get an extension on the amount of time, but you need to plan on it taking a decent amount of time. And just the quicker you can jump on it, the quicker you can get it resolved. But it is going to be a thing that it's going to take some time.

Well, speaking of time, guys, we're out of it. The Outlaw Lawyers, this edition in the books, guys, have a great week and we'll see you on the radio next week. This is Josh Whitaker and Joe Hamer, Whitaker and Hamer Law Firm, practicing attorneys here in North Carolina, the managing partners at the firm offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina and Gastonia. And if you've got a legal question that you have, you can get an answer. 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. An attorney with Whitaker and Hamer will be in touch. And as always, you can email the questions to the show. Questions at the OutlawLawyer.com will answer them on a future broadcast.

We're back on the radio next week. Outlaw Lawyer is hosted 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.
Whisper: medium.en / 2023-05-13 06:45:38 / 2023-05-13 07:09:51 / 24

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