Share This Episode
Outlaw Lawyer Josh Whitaker & Joe Hamer Logo

Family Law, Legal Separation, Common Law in NC, Probate, and Small Claims Court on this Week's Outlaw.

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
February 25, 2023 2:00 pm

Family Law, Legal Separation, Common Law in NC, Probate, and Small Claims Court on this Week's Outlaw.

Outlaw Lawyer / Josh Whitaker & Joe Hamer

On-Demand Podcasts NEW!

This broadcaster has 91 podcast archives available on-demand.

Broadcaster's Links

Keep up-to-date with this broadcaster on social media and their website.


February 25, 2023 2:00 pm

On this week's edition of The Outlaw Lawyer, Family Law questions answered. What is Legal Separation in NC? Common Law Marriage/ Probate? and What is handled in Small Claims Court? Plus Josh provides us with Chat Bot Haikus throughout the show.

If you're facing a legal situation and have questions that need answers

call Whitaker & Hamer Law Firm 800-659-1186.

Lawyer, Attorney, Court, Lawsuit, Probate, Divorce, Separation, Legal,

See omnystudio.com/listener for privacy information.

YOU MIGHT ALSO LIKE

Coming up on the Outlaw lawyers, Josh Whitaker, Joe Hamer, Cassandra Nicholas, and Taylor Scruggs-Smith talking all things legal.

I want to remind you too that Whitaker and Hamer is the power behind this program. Whitaker and Hamer law firm offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, Moorhead City, and that's where Cassandra will be chiming in from. And also, Josh and Joe managing partners of the firm and practicing attorneys here in the great state of North Carolina.

I'm Morgan Patrick, consumer advocate. Coming up on today, we have a lot of questions that we'll throw at the lawyers, plus all the hot topics that are out there that are legal, and we'll also get into some ACC talk. That's all coming up next on the Outlaw lawyers. And now, Outlaw lawyers. Welcome into the Outlaw lawyers. Josh Whitaker, Joe Hamer, managing partners Whitaker and Hamer law firm.

They're your hosts. They're practicing attorneys here in North Carolina. Also joining us on the program today, Cassandra Nicholas, an attorney with Whitaker and Hamer. She's joining us from the Moorhead City office, and Taylor Scruggs-Smith in studio with Josh.

And we have to say, Joe Hamer on assignment. I want to remind everybody that their office is conveniently located for Whitaker and Hamer in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and as we mentioned, Moorhead City. If you have any legal situation you're facing and you've got questions, you can always call the firm. Here's the number 800-659-1186.

That's 800-659-1186. You can also email your questions to the program questions at theoutlawlawyer.com. We'll answer those on a future program. But Josh, welcome into the studio. Where are we going first? Well, it's good.

It's always good to be in the studio with you. Did you watch any basketball this weekend? Oh yeah, I did. Did you catch the big Carolina State game? I did.

I did. Congratulations to the Wolfpack Nation. They played quite a game. Yeah, there was a Facebook meme or picture or whatever, I don't know what you call it, but they said the state had the best weekend they've ever had short of winning a national championship because wrestling won, women's basketball won, men's basketball won, men's hockey won. And then of course the outdoor hockey game, we can't take credit for the Hurricanes win, but that was a fantastic event for Raleigh. So it was a really big win weekend for Raleigh. Well, and the hockey, the college hockey, you just didn't win.

You whooped them. And that was another win over the Tar Heels. Did you see the pictures? I know they don't have like an official attendance, but did you see how many people came out for that game?

I did see it. Now they did a combo with the Hurricanes alumni game and then they also did the college game, correct? On the same day. I think you're right. So back to back. But yeah, it looked like they had maybe 15,000 there.

I mean, it looked big. I think the final estimate I saw, and again, I don't know how you estimate when you're not taking tickets, right? When you're not counting. But I think they estimated 26,000 plus for a club hockey game.

That's got to be a record. Yeah. I hate it could be more official because, you know, the ice pack is a lot of fun to watch. One of my nephews was goalie for the ice pack.

Great name, by the way. The ice pack. Yeah. Their jerseys are really cool. Have you seen the hockey jerseys?

Yes, I have. But we went to the so the Hurricanes played the Capitals at the what do you call them? It's the stadium series. Yeah. Stadium series.

Yes. Stadium series. But we were we were out there and it was a lot of drinking. There was a lot of you know, there was some there was a tailgate. I think it was purposely cut short, just like the NC State football tailgates are purposely gates open at a certain time.

They opened about two, I believe officially. But I was there with with two of my kids and lots of lots of vomiting and and near brawls. That's kind of what we we saw a lot of that overdoing it. I bet the boys love that.

That's some good entertainment. I think they were a little scared of the bathroom situation. The bathroom was a little a little hairy there after about the second period.

Don't don't say bathroom situation and hairy in the same. But no, it was a lot of fun. It was it was a good weekend for Raleigh. I did not have tickets to that Carolina State game, so I watched it.

I watched it in the house. But all good things. Hopefully, hopefully state can can keep winning. And I guess Carolina can probably still rebound.

And now you don't think so? No, no. I mean, they're going to have to win out. They're going to have to win most of the remainder of their games.

I think they only have three, so they need to win two of the three and then they have to make a run in the tournament. And my problem with this team and again, just my opinion with what happened last year where they came out of nowhere and that entire team comes back. It's almost like we can flip the switch on any time we want. And it just has not happened.

Yeah, has not happened after a quick Google search. You know, the outside game. Your number is like way off. Carolina's hurricane outside game. No, no, no, no. That was fifty six. Yeah, but no, we're just good. We're talking. We're talking about club hockey and then the Hurricanes alumni game. As I say, I saw the numbers for fifty six.

I was like, wait, I saw higher numbers than twenty six. And that was great. That was fantastic. Yes.

Yeah, that was that was good. But no, they had a so they left ice up there and they let NC State has a club hockey. We don't compete on the NCAA level. It's a club hockey team, but it it plays other pretty high level club hockey teams. Carolina has a club hockey team. So state and Carolina played hockey in Carter Finley on the ice.

It was like I think it was seven to ice pack wins it or something like that. Yeah. Yeah. But but anyway, we're not sports talk. We like to talk about sports, but we're not sports talk. We're here to talk about the law.

Yes. We've got three attorneys here. And then today we're kind of taking that listener question approach. So we have some segments set up here today. So we're going to spend some time with what I what I kind of call some some family law questions.

And then we're going to have some like a state administration questions. Right. When you when someone passes away, do you have to open up an estate? Do you have to probate a will?

When can you sell real property? Right. So we got some of those questions. And then we're going to have a segment where we just talk about just the different types, different levels of civil litigation, small claims versus district versus Superior Court versus state versus federal. And so we've got a lot of these listening questions that kind of pile up. And every so often we want to just take a take a minute to try to answer a lot of questions.

So we'll we'll tackle a lot of those today. And Taylor's here to help me. And Cassandra's here to help me kind of go through those. It's probably worth mentioning, Taylor, and you probably know more about the new Odyssey system than me. But if you live in Harnett, Wake, Johnston, Lee Counties, those four counties were chosen by the administrative office of the courts to implement a new system, a new computer system, a new operating system.

Right. So the courts have actually been working on this for like about maybe a year and a half, two years now. It started off with them kind of updating the Internet in courtrooms going forward.

And now that that's set up, they've set up this new system. So attorneys are actually not allowed to go file in the courthouse in those four counties you mentioned of Harnett, Lee, Johnston and Wake. We now have to file online. And the goal is to get the whole state on that so that everything is filed online. You can kind of pull up all the files online.

Doesn't matter how old the file is. We don't have to go to the courthouse no more to pull those old files. There's still some kinks they're working out in the system.

These first four counties are just the pilot counties. So some of those kinks can be worked out as people use it in practice. But it's supposed to be a help point for the attorneys and the legal field in general. North Carolina saw a lot of states around us having these types of systems and kind of took the plunge to get on board.

I'm excited about this change. I've been in other states that do have e-filing and the federal system also has e-filing. And once it's, you know, up and running for a little while, it's really smooth and convenient to just click a button on your computer than having to stick stuff in the mail, FedEx or drag yourself to a courthouse to file. I mean, I've been loving the e-hearings we have now. During COVID, they did an order that allowed electronic hearings via Zoom.

I think some of the WebEx is another one that some of the counties use. And Wake County specifically has kept that on for a lot of hearings. So for me as an attorney to be able to do some hearings for my desk when I just need to ask for a continuance or give the judge an update and don't have to be in the courtroom with my client.

Those have been great for my gas mileage. They made those permanent for certain areas or just they just keep extending it? I think they've made it permanent for certain areas. So like in family law, they made some of the basic divorce hearings in Wake. Wake specifically kept that online hearing process and they do it for some other hearings as well. And they have the forms where you can request that and somebody can deny it for certain reasons.

I don't think I can't remember how many other firms have got. I mean, not firms, counties have gotten on board with that. But you're starting to see a trend for it because attorneys are liking it for those small matters. They don't have to go travel to the courthouse for when it's something that'll take five minutes. So when I when I started practicing law many years ago, when I started practicing the federal... You're not going to tell us the year?

I think it was 2003, 2003. So back when I started practicing law in 2003, the federal system, right? We're going to talk about the federal civil system, right? We're talking about federal courts. But federal courts have long allowed you to e-file documents, right? So if Taylor, Cassandra or I were going to file a complaint, you know, or make a court filing, we could do that. The federal courts required you to do it electronically. And unless there's an emergency situation, you don't run up to the federal courthouse with hard, with paper.

They don't want it. You have to pacer, is their system that they use. And it's a great system.

But it's been in place for a long time. On the county level, e-filing, there's some things we can e-file, right? So if you have a real estate closing with us, a lot of times we're going to e-file your deed. We're going to record your deed electronically. So a lot of register of deeds offices across the state have gone to electronic filing, which is great.

Almost all of them now. Yeah, I think there's like probably like less than 20 maybe who don't allow some type of e-filing. Some counties won't allow you to e-file every, you know, record every deed that you could record at a register of deeds office.

But when I started, you couldn't e-record, right? You had paralegals and attorneys, right? And so if you were, I started out in Fuquay, so we're right there in between Harnett, Johnston and Wake. And so we would do closings in all those counties and you'd have three people at the end of the day at four o'clock. They would just go with what was ready, right?

Somebody would go to Wake. Somebody would go to Johnston, somebody would go to Harnett and we'd record at the end of the day. And now you just record throughout the day. So the e-filing is really nice. The system switch has been interesting to say the least. Yeah. And there's always, I'm sure there's always a process. There's always a lag time.

It takes us a while to get used to stuff. The e-filing has been, has been great. Some of the other features haven't worked as well as, as we would have hoped, but I'm sure they're working all that out. But yeah, I think it's good that they did it in practice within Wake because Wake is one of our bigger counties in terms of, you know, just population density, but also how many attorneys are all over Wake County.

Like there's one on every corner, it feels like almost. So trying to make sure we all are e-filing and using this system. I think making Wake one of the pilot ones is going to help work out the kinks for the rest of the state. So I think as a firm, we've already, well, we've already filed a couple of complaints, some estate administration stuff, some motions.

So we've already, yeah, so some liens, we've already e-filed a lot of stuff. So it is working. It's just, I saw the reason I was going to bring that up. This might not matter to folks who aren't attorneys, who aren't employed by the court system, who don't deal with it every day. But I saw, I think it was maybe WRAL, but I saw a couple local news stories right when they switched over last week that were talking about how it wasn't going very well. They had a lot of people complaining about it.

So it was something that popped up in the news, but I figured it deserved a little bit more explanation. But because, Sandra, you've used it as well, too, right? Yeah, for a state administration, it's really convenient. The only thing, so for a state administration, we get original wills. Those still have to be filed in person or mailed to the courthouse. So you upload a version of it to the e-filing system and then get them the original as well.

I haven't had to do that yet. And so that's what we still have to do on family law and complaints, even though you can file everything online. In the family law, a lot of times you end up with no attorney on the other side. So that means we still have to print out the complaint and print out the summons to serve somebody individually through the mail or through the sheriff.

So a nice hybrid. Yeah, there's still paper involved. All right. Well, coming up next, our next segment, we're going to focus and hunker down on some what I call family law questions. And so that's what's up next.

All right. The law is Josh Whitaker and Joe Hamer are your host managing partners at Whitaker and Hamer law firm. Practicing attorneys here in North Carolina. Joining us on the program today, Cassandra Nicholas and also Taylor Scruggs Smith, also attorneys at Whitaker and Hamer. Want to remind you, if you've got a legal situation and you've got questions about that, you can always call Whitaker and Hamer. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine one one eight six. And leave a contact information briefly what the calls about an attorney with Whitaker and Hamer will be in touch. You can always email your questions to the show will answer them on a future program. Questions at the outlaw lawyer dot com.

We're back right after this. Outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm. The power behind the outlaw lawyers joining us on the program. Obviously, Josh Whitaker is here. Joe Hamer on assignment. Cassandra Nicholas joining us from the Moorhead City office. And we have Taylor Scruggs Smith in studio. Convenient office locations for you when it comes to Whitaker and Hamer. They're everywhere. Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia.

And again, Moorhead City. If you've got a legal situation you're facing, you've got questions you need answers. I got a phone number, 800-659-1186. That's 800-659-1186. Leave your contact information briefly what that calls about. And an attorney with Whitaker and Hamer will be in touch.

And as always, you can email your questions to the show questions at the outlaw lawyer dot com. And we'll answer those on a future program. And speaking of questions, Josh, we've got some we've got some answers. We don't have we have questions and we have answers. You got to give the question, then you've got to answer them. Right, right, right.

Before we do that, though. So if you listen last week, you know, we've been enamored with chat GBT. It's true. And all I can do, you know, we're we're we're very enchanted with these AI chat bots. And so what I use chat GBT for, I like to use it for haikus.

For me, it's just it's just a fancy haiku maker. And so we're about to answer questions about family law, North Carolina family law. You've got three North Carolina attorneys here. We're going to answer for free some listener questions about family law. But I wanted a haiku. This is what I want. I wanted a haiku about NC family law. And this is what chat GBT gave me. You guys ready? Taylor, are you ready? Families in court.

NC law guides the process. Justice for all salt. I think it's very good. It's very good at writing haikus. And I got to say this, I'm not going to name the other radio programs, but I've heard a lot of this going on the chat bot haikus different formats. Do you think they say I didn't get that from anybody? I think I invented that. I think you invented it.

I think someone has stolen it from you. We were doing we were on chat GBT haikus a long time ago. But anyway, family. I'm going to put some more prompts in here why everybody else is talking. But but family law questions so that we get a ton of. We have a lot of family law clients. A lot of folks come to us to help them with divorce, separation, child custody.

You know, you know, alimony, all these family law buzzwords. We meet with family law clients every day. It's a big practice area for us.

And one of the questions I hear all the time, Taylor, I know you hear this more than me. North Carolina. We got a lot of folks.

We're very lucky. North Carolina is a popular destination place. It's popular for people to move in.

We're always taking people in from other states. Some other states have what we call a legal separation. Taylor, does North Carolina have legal separation? No.

And this is kind of one of I think I've gotten this question like four times in the last two weeks as a way to start off my consult, because everybody hears that buzzword. They know that in order to in North Carolina, you have to be separated for a year and a day in order to get divorced. And so everybody thinks there's a process to prove that you're actually separated. But the statute just says you have to be living separate and apart. So the second one person moves out and you guys don't intend the marriage to continue, you're separated in the eyes of North Carolina. You don't have to have a legal document filed with the court to prove that you're starting the separation period or anything like that. And in fact, a lot of couples don't have anything like that and don't even sign a separation agreement if they do at all until later in the process. So that is not something North Carolina actually requires. You just have to be living separate and apart, which does not mean living one person in the garage house or the second house and the other still in the main house.

You have to actually have separate addresses. Yeah. So North Carolina, go ahead Cassandra.

Sorry. Confusing for folks because pop culture and other resources don't really distinguish between like what states they're referring to and some states do have legal separation. North Carolina is just not one of them.

Right. And so I do think it gets confusing because I think people will Google, which is what happens a lot today in today's time, even I Google. But, you know, what people end up Googling is just separation. And if you don't put NC at the end of that, you'll get tons of answers that have nothing to do with North Carolina telling you you have to file this or file that to start the separation period. North Carolina doesn't require any of that. It's just somebody has to move out.

And that's the other. Family law is one area that's like very state based. Like it's very a lot state to state.

Right. So like I know some states don't even have the year long requirement for separation, but North Carolina does. So every state is different when it comes to family law because that is a state regulated matter. So there's not a nationwide standard on how to get married or how to get divorced.

Yeah. We you know, we've seen we've had clients who, you know, depending on the circumstances, maybe they were already planning to move. But we've had clients who at least entertain moving to other states where maybe the divorce laws are a little more easy to deal with.

Right. North Carolina, like you said, you got to be separated and apart for a year before you can get your divorce granted. And that is, you know, it's kind of an old school law. A lot of the more southern Bible Belt states still have these waiting period laws where maybe like a New York or California don't. But some of those up north states and even some down south states have lifetime alimony.

Man. Yeah, you definitely you definitely got to be you definitely got to be careful. And a lot of times we we our clients come in just to get consult. They just consult to find out what the law is. They haven't left their spouse.

Obviously, you know, it's it's come up. It's something they've thought about. But a lot of people don't know the laws in North Carolina. A lot of people don't know what they'll be liable for or be able to get in the terms of alimony or child support. And so there's a lot of question marks when people are in a in a in a married relationship where they're thinking about separating.

Right. So I get a lot of consults that happen right before they even have the conversation with their spouse because they're just trying to understand what the law is on separation and how that may go and just get prepared. Chat GPT and its co-hosting duties was asked to write a haiku about legal separation.

You want you want to hear what they what it came up with? Yes, I do. All right. I like it better when Joseph reads these. I think he has a better haiku reading voice than I do. But dry sarcasm.

Yeah, but he's not here. So we're going to have to make do so. Chat GPT wrote a haiku ties once strong, now frayed.

Legal separation marks new paths to be made, which I'm very impressed about that. Actually, it's pretty good. Very good haiku. Well, because haikus don't have to rhyme.

It kind of threw in there some slant rhyme and you know, haikus don't have to do that. But anyway, so legal separation. It is not a thing. I know we had a client in Washington who went to the courthouse, Washington, the state, and got a legal separation. And they sent us all this paperwork.

I think they were trying to sell some property. Not good enough here. Doesn't doesn't doesn't work here in North Carolina. You are married, unmarried, single, right?

That's that's it for marital statuses in North Carolina. Yep. All right.

All right. So we get that question a lot. So we want to answer that one.

Another question we get a lot. Is there common law marriage in North Carolina? Taylor, is there common law marriage in North Carolina?

I feel like my word of the day brought to you by Whitaker and Hamer is going to be no. So we actually get this question a lot, but it's come up more in terms of common law divorce, which North Carolina doesn't have either. So North Carolina does not recognize common law marriage or common law divorce. So if you've just been together with your significant other for 15 years, that does not automatically grant you rights as a married person. And if you've just been separated for 10, 14, 12 years, that does not automatically mean you're divorced in North Carolina. So there's no such thing as common law marriage or common law divorce. If you weren't married or you weren't divorced, you don't automatically get any rights either taken away or added to you.

I just had this question the other day during a real estate closing. We have folks sign a marital status affidavit to attest to whether they are married or unmarried. And this individual looks up and asks, does North Carolina have common law marriage? You're safe.

Great. That's so that's so that's such a foreign concept to me. I had like distant cousins and stuff from different states. And and I remember them talking about I didn't know what it meant when I was a kid, but I remember talking about their common law wife, right, or common law husband. It just sounds so crazy to me that if you just, you know, because what is I'm not licensed to practice in South Carolina, but what is it like seven years of cohabitating or something like that?

That's like squatting. It depends on the state. I think some are seven, some are 10. Some are like eight. If you live in a state that has common law marriage, you have to be very aware of what that number is. And you need to like your kids need to know everybody needs to know because they need to get out.

Like if it's seven years, you need to know like six and a half years in. Yeah, you got this working. Yeah. Time to move on. Are you married or are you just squatting?

What do you do? Funny enough, I get the question. Right. I get the question on the opposite side of Hey, is there common law divorce?

I've been separated for like 15 years. And I'm like, Yeah, no. And I gotta go bother Josh.

He didn't tell us this. So again, I'm feeding chat GPT some prompts while we're talking. So I said, write a haiku. I can do other things, but write a haiku about common law marriage. You want to hear what it said? Yes.

I just wasn't even better than the last one. I'm really impressed with what it's what it's laying down here. No vows were spoken, yet love's bond was still formed strong. Common law union. It's improving. It amazes me. All right. So that's two questions down. Let's do another question. Taylor, we I don't know how to phrase this question to get a yes or no out of you. I guess I'll do it this way. In North Carolina.

Uh huh. I'm on Jeopardy. In North Carolina, one spouse takes title to real property via deed, right? So the this one person will just say the will say the husband since I'm talking right now. The husband's on on title. Can that husband the only one on the deed? Can he sell that real property to someone else without his spouse's signature? And again, the word of the day is no. I'd ask that.

I'd ask that very carefully. But, um, so if you the standard is in North Carolina that it takes one to buy into a sale if you're married under marital rights and divorce law specifically, um, if you buy property during the marriage, regardless of how it's titled, it is presumed marital properly. Marital property unless you can show otherwise. And it's really hard to show otherwise when you're just buying homes during the marriage. Um, and anything that's marital property gets divided 50 50. So even if her name's night on title, your wife still has rights to whatever property you just bought. And that's one of the reasons Cassandra you were saying I came up with a closing because that at closings and before closings we we asked this of our sellers, right?

Yeah. So we have these marital status affidavits that we do at closing, but we do ask ahead of time so that we know who should be on these documents. So we have very detailed intake forms and sometimes we don't always get the answers we're expecting. Um, so that's why we also have this double coverage of having them sign a notarized document as to their marital status. I do want to note there are ways around having the spouse sign for closings as well, as long as we know about it. Yes, you can do a free trader agreement or if you've already had a prenuptial agreement that addressed real estate when you got married, that could also alleviate that requirement. Yeah, the availability of a free trader agreement always surprises folks.

It's kind of a funky name for it. But there is a statute North Carolina that allows you and your like you and your spouse. It's presumed the law presumes that you're going to act together, especially on things like selling real property that you're going to act together there. But a free trader agreement, you and your spouse can go in and sign an agreement where you agree to basically operate under the North Carolina statutes as if you were not married, right? So we wouldn't necessarily be looking for a spouse's signature if we knew that you were a free trader or we knew there was a prenuptial agreement. But yeah, like Cassandra said, there's a lot of ways to negate that spousal interest with consent. As long as we know. Yeah, but we run into a lot of folks to have been separated for 20 years.

Yeah, and there's nothing they don't even know where the other person is, you might not be able to get consent, which is primarily the main way to have that done without anything else. All right, well, we didn't get to all of our family law questions, but we got through a lot of the common ones that we get on a on a day to day basis. So up next, we are going to tackle probate a state administration. Outlaw lawyers Josh Whitaker and Joe Hamer managing partners Whitaker and Hamer law firm hosts of this program.

We have Josh in studio today also joining him in studio Taylor Scruggs Smith and from the Moorhead City office Cassandra Nicholas again, Joe on assignment this week. Offices for Whitaker and Hamer conveniently located Raleigh Garner Clayton, goalsborough, Fuquay, Verina, Gastonia and Moorhead City. If you've got a legal situation and you need answers to your questions. Got a phone number for you. 800-659-1186. That's 800-659-1186.

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 your questions to the show. Questions at the outlawlawyer.com will answer them on a future program. We come back. Well, more legalese and I'm sure we'll have a few more chat bot haikus.

Yeah. Welcome back into the outlaw liars Josh Whitaker and Joe Hamer managing partners Whitaker and Hamer law firm hosts of the program practicing attorneys here in North Carolina. Joining us on the program today from the Moorhead City office Cassandra Nicholas also an attorney Whitaker and Hamer and Taylor Scruggs Smith, an attorney with Whitaker and Hamer offices located conveniently Raleigh Garner Clayton, goalsborough, Fuquay, Verina, Gastonia and Moorhead City will tell you more about how you can get in touch with Whitaker and Hamer if you have a legal situation. But Josh, first and foremost, we're going to talk some probate. We are we we get a lot of questions about, you know, someone's you know, someone's already passed away and we have relatives. We have family spouses coming in, you know, asking if a will needs to be probated as an estate need to be administered a full estate, something less than a full estate.

How do they distribute, you know, property, you know, just tons of questions once someone's gone. And so we're going to we got some questions that we're going to ask about that. But before we do that, I have asked chat GPT to write more haiku. So I had chat GPT write a haiku about attorney Taylor Smith Scruggs. Taylor, do you want to hear this haiku? All right.

Of course she does. So this haiku is by chat GPT, our chat bot about attorney Taylor Smith Scruggs. Here we go.

A skilled legal mind, Smith Scruggs fights for justice, clients well aligned. I thought that was good. You should frame that in my office. I haven't read one of these. You weren't here last week, but we Joe did one about me and did one about him.

But we feel like she's on our bio, bio or firm website, you know. So Cassandra, I had one. I had it right. One about you, too.

You want to hear yours? Sure. All right.

With knowledge and poise, Nicholson advocates well, legal wins in sight, which again, I think it's a very good haiku. When you find out your boss doesn't know any of your last name. Right. I wonder if anybody else is going to catch that.

What did I do wrong? You said my name backwards. Oh, yeah.

And mine is Nicholas. And she's not Nicholson. I think we could have held that in until we got done.

No, it's pure bloopers. Well, you know what I meant. Nicholson. Here's Johnny joking aside. I'm not good with names. I've said I've made that disclaimer several times. If I can screw up a name, I'm going to screw up a name. We might both be in trouble after the show.

All right. Probate administration law. Cassandra, I know you get a you get a heavy helping of these because we handle these all across the state. You know, this is this is something that we handle from from mountains to the coast.

We help North Carolinians with a state administration. And, you know, the first step I find for a lot of people, you know, hopefully the deceased. Right. Hopefully the deceased person has made an estate plan. And so a lot of times, you know, my first my first bit of advice is, hey, let's is there a will? Right.

Cassandra, you probably a lot of times will come in with it, but sometimes they don't know. Yeah, absolutely. So then it's important to look in all of the usual places for the will, including and especially. The lock boxes at the bank, those comp. I think that's the deposit box. Yeah. Yes.

That's the word I was looking for. And there is a particular procedure for actually inventorying what's in those with someone like supervising you from the court. So finding out how to do those things right away is important after someone passes. Well, Sandra, let me ask you this.

So, like, I know we get a lot of questions and especially like from everybody, even if I'm just at an event. Do you even have to do an estate administration through the courts? So that will depend. Really, the best estate planning does allow folks to avoid having to do the estate administration process through the courts at all, where all of their assets transfer as a function of law or operation to someone else. Having someone else on title to your property titles to your vehicles as pay on death beneficiaries for your bank accounts and your retirement accounts. If those are automatically transferred, you get to skip all of the court steps. You're done. So usually when I sit down with folks on the opposite side.

Right. So we also do estate planning. And so we help a lot of people, obviously before death, kind of plan for their death and what's going to happen. And we we get involved in trust and wills and power of attorneys and all this other stuff. But but, you know, if you do your estate plan, it's very important for you to tell the people who are going to be executing your estate plan after you're gone, whether that's a surviving spouse, a child, a professional, an attorney, a CPA. You need to tell people that you one have a will and where it is so they can get to it when you're gone. I know we serve as executor for a lot of folks who maybe don't have any close family in the area and then maybe they live alone. And so we we like I know when I'm doing that, I know where their will is.

Sometimes I have it. Sometimes I know where it is in their house. But that's the first thing. If you go through the trouble, which everybody should do, it's not that much trouble is very easy. But if you get your estate plan done, the people who are going to execute that plan need to know it and need to know where the original docs is. A copy of a will is not worth a whole lot in North Carolina. The original will is what's important.

And and, you know, I see not I don't have one. A lot of people don't have safety deposit boxes anymore. It used to be very common. Some counties used to get a register, your will downtown.

So the original was at the courthouse and that's kind of fallen out of favor. Most people don't do that anymore. Then they used to give out safety deposit boxes when you like got new bank accounts or something. I know that's how my grandma got like five.

Maybe. I mean, maybe back before my day they did that. No one has ever offered me a free safety deposit box. It is still an option to go register your will. File your will while you're still living with the clerk of court in the county where you live. It just gets a little bit complicated if you do end up moving during your lifetime or if your executor that you've named doesn't know that's where it is. We had some clients who brought up a good question. We had some clients who moved here from a different country.

And so they were here and they had their minor children and they want to know like if they're you know, they were planning to keep the NC State statute talks about keeping your will with your other important papers, wherever that may be. So it could be a desk drawer. Right. It could be anywhere. It could be in your house. You could have a vault in your house or, you know, where they call that a safe, a firebox or whatever it is.

But anyway, wherever you put it, they were they were concerned. Like what if the house burns down? The will's destroyed. We're both gone.

You know, all of our folks are on another continent. How does someone know what to do? Know that you are our attorney? You know what, you know, know where the will may be.

Those are all good questions. You need to tell them. Right.

You need to you need to let them know what to do in case something happens to the both of you. So and then we also a lot of times I'll give folks a little cheat sheet. Right. So if you're if you're doing your estate plan and you're you're updating it every year, kind of keeping a list. A lot of people don't get statements like back in the day.

That's how we figured out. Right. If someone passed away and you were trying to figure out who they owed or who to give notice to, you'd wait for their car statement to show up, their mortgage statement to show up, credit card statements. But a lot of people don't get statements mailed to them anymore.

Electronic. Yeah. So we've got we've got this little guy that you kind of you kind of get people an idea. Hey, look, this is where I bank. But I also have an account here. You know, here's my financial services person. And so, you know, your spouse, if your spouse survives, you're probably going to know that your kids may not know that.

Right. Definitely somebody further removed than your kids may not know. So when you're gone, you can't tell them.

So it's good to tell folks that why you're why you're still here. So, Cassandra, though, if the will's probated, does that well, if there is a will and there's still property that has to be transferred. I know there's kind of a few different types of estates.

Which one did you which one do you do? So if an estate does need to be opened, whether there's a will or not, there's also procedures for opening an estate. If there's not a will, if you die without a will, it's called intestate.

But there are different types. So there's a small estate and that's for assets up to twenty thousand. Or if you're only surviving heirs, your spouse up to thirty thousand. And if it's assets above that, then you're doing a full estate.

Interestingly, in North Carolina, those assets that are part of the estate do not include real estate. Yes. Right.

Don't go ahead. Sorry. They also don't include anything that is transferring automatically. So any of the bank accounts and vehicles or anything that are automatically transferring, you don't have to count towards that limit either. Yeah. In North Carolina, real property, so land, real estate, it technically passes automatically when someone passes away. Which is which is crazy because we don't we don't automatically know who it's going to go to.

Right. So let's say something happens to me. Let's say I got a will that leaves everything to my wife. So as soon as I die, the legal fiction is that that title vested my wife right away. But you would know that right.

Me and my wife know that. But Taylor may not know that because third parties are going to know that. So you have to go probate the will. And even though the real property may not be listed as an asset of the estate because it's already passed outside of probate, you still have to probate your will to prove to everyone that she is the new owner of the property. A probated will is a lot like a deed. It's something that third parties can look at to determine who owns property.

So we do a lot of titles. I've got a title search now where someone died out of state. We don't have an estate. He had several kids. Only one of the kids is selling the property, but we don't know how he got to this one kid.

It's he may know, right. He may know exactly why it says property, but we don't have anything on the public record. There's no deed.

There's no open estate. So, you know, clerks, you know, I would say when you're when you're down at the courthouse, if you haven't consulted with an attorney and there's real property in the estate, real property is going to be sold or mortgaged within the next two years. After the death of the decedent, the deceased, the person who passed away, you got you need to talk to an attorney because there's some tricks of the trade there. Definitely, because it's not required that you open an estate for that purpose under state law. But if you're trying to sell the property, a closing attorney or a title insurance company is not going to let you do that unless you've proven who the legal heirs are. And typically they require an estate to be open to prove that. So sometimes that's the only purpose of doing a state administration is to legally prove who the heirs are so that you can sell property.

Right. And then there's there's laws and rules about giving notice to potential creditors to cut off creditor claims. And so that may be something you need to talk to an attorney about, because sometimes it's the best thing to do. And sometimes maybe it's not the best thing to do. But there's all kinds of, you know, tricks, not really tricks. It's just laws and knowing what side of the law you need to be on.

And so a lot of stuff, a lot of stuff can happen there. But it's, you know, it's a process, right, Cassandra? I mean, this is not going to, you know, if you're going to open up a full estate or, you know, it's not going to be a week long process, more than likely.

Absolutely not. So with a full estate, as you were just mentioning the noticed creditors period, a notice to creditors isn't necessarily required with a small estate, but it is required with a full estate. And the noticed creditors period is at least 90 days from the time that the notice runs the first time in the newspaper. So the minimum amount of time this process would take you is over three months. Typically, it's going to take a little bit longer than that, because there's some processing time involved on the clerk's end to even get the estate open.

And then on the back end for them to process the additional filings that you'll be submitting. It's not a short process. And you got to be very careful.

We're coming up against a break, so I don't want to go into too much detail here. But you have to be careful if you have estate assets, those estate assets have to be handled, documented, delivered to heirs in a certain way. And the more assets an estate has, the harder it's going to be to administer or to probate. And so just be wary of that.

If you've got an estate with a lot of assets, you've got other heirs that aren't you. You have a fiduciary duty to handle all that the right way. And there is a right way and every other way is wrong.

Right. There's there's things you can pay. There's things you can't pay. And you can get yourself down a pretty big rabbit hole if you don't do it the right way.

It's hard to go back. You can make life a lot harder for yourself. So that's something I would definitely recommend if you've got an estate, there's some assets in it. You want to make sure you handle it correctly, because if you don't, you're not going to find out about it for a while.

And once you find out about it, you may not have a lot of time to go back and fix the issue. But before we before we hit break, I did I did have the chat bot write us a haiku about probate. Can't wait. All right. And this one was good, too.

And each one's better than the last one. I didn't put anybody's name in this one, so I don't have to worry about any any problems there. My name's Morgan.

Morgan Patrick. Life's last chapter writ probate settles earthly ties, inheritance done. I thought it was pretty fancy.

I was pretty good. If you have any questions about probate and obviously a lot of moving parts, you can always call Whitaker and Hamer. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine one one eight six. Leave your contact information briefly what the calls about and an attorney with Whitaker and Hamer will be in touch. You can always email your question to the show questions at the outlaw lawyer dot com. And we will answer those on future programs are back right after this. The alcohol buyers, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer, law firm practicing attorneys here in North Carolina, hosts of this show. Convenient office locations all over the place.

Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia and Morehead City. Joining us from the Morehead City office remote is Cassandra Nicholas, attorney at Whitaker and Hamer. And also here in studio with Josh is Taylor Scruggs Smith.

And Joe Hamer is on assignment. Take it away, Josh. Hopefully I don't lose my voice.

I've been losing my voice every day for like two weeks. And I feel like going out on me at this rate, the the chat bot could take over. That's right. Yeah. All right. So we get a lot of questions from folks about where their matter, if it's something that needs to be litigated, where their matter is going to be filed.

Right. So we you know, in North Carolina, we have federal courts, right? We're the we got federal courts for civil matters and we got state courts for civil matters.

And we end up in both of those. State court has a couple levels, right? You got small claims, district court and Superior Court.

And so I what I wanted to do and we talked a little bit about this on an earlier show, but like just kind of talk about some of the matters that go certain places. And so, Cassandra, tell me about small claims. The small claims only exist in state court, right? So Wake County Court has a has a small claims division.

And what you what usually goes there? So typically matters that are up to 10,000 go to small claims. And that's actually county by county. I haven't encountered a county in North Carolina yet where it's not 10.

But it's not necessarily 10 in Wake and the other counties we typically practice and it's up to 10,000. And those are typically like disputes that most litigants handle on their own without attorneys. You're allowed to have an attorney there, but frequently it's just two individuals and it's a little less formal than district and Superior Court.

Yeah. The evidentiary rules are relaxed. Civil procedures relax. There's not a lot of pleadings, right? Whoever has the complaint will go.

There's like a form complaint you can kind of fill out and you file it. And everybody kind of gets their day in court. And the magistrate usually it's not a judge. Usually it's a it's a magistrate.

You know, we'll hear your your matter here. Everybody lets you present evidence within reason and you get your day in court. And, you know, you know, most counties, if you if you were to lose, you know, you can appeal it to district court, which we'll talk about in a minute. So small claims is a is a good place for folks who especially don't want to incur legal fees.

Right. If you're showing someone for two thousand, you probably don't want to pay five hundred to a thousand for an attorney to represent you to try to recover two thousand when it's something you if you have the time, you know, you could try to do do on your own. You evictions those. That's something that usually happens in small claims court. So if you if you're a landlord and you have to evict a tenant or if you're a tenant facing eviction, that usually takes place in small claims. But small claims is a place it's you know, it's like it's people's court.

And that came up in the haiku. Our chat bot wrote for us here about small claims, small claims, big impact justice served without to lay court for the people. It's doing pretty good, but that that small claims and we do get retained to go in and handle a small claims action, especially if it's on the larger side or if we think it's going to end up going to district court, because that's the next step up. District court is, you know, usually most counties like twenty, twenty five grand and below. Also, where family court cases live. So your family court is always going to be in district court.

Yeah. And district court's more formal than small claims by design. Usually, usually attorneys are involved. You certainly don't have to have an attorney at any point in the process, but usually attorneys are going to come into play in district court because you have to, you know, you either have to file a complaint or you have to answer a complaint.

Right. If you're a plaintiff's attorney, you're going to file a complaint. If you're a defendant's attorney, you're going to file an answer. There's going to be some discovery interrogatories, you know, and then eventually maybe a trial in front of a judge or a jury.

Right. So district court. There are a lot of stuff lands and like Taylor said, family court, things like that. And then, of course, you also have right superior courts. That's like the biggest court most counties have. Right.

Usually the amount in controversy needs to be twenty five grand or greater. You know, if you're suing someone over real property, that usually ends up by statute in Superior Court and Superior Court's, I guess, I mean, pretty formal. Right.

Extremely horrible. Right. So Superior Court, I can't imagine being sued or suing someone in Superior Court, not being represented by an attorney. But they're going to follow the rules of evidence and civil procedure kind of, you know, pretty, pretty strictly. And there's a lot of things that you have to do.

And usually there's a good amount in controversy. So that's that's Superior Court. Right. So the state level district, Superior, small claims. But you can also end up in federal court. Right. So federal court is is I always call it big boy court. Right. You get a federal court.

It's everything's very serious. You know, we've had we've had a lot of times, like civil rights violations end up in federal civil court, constitutional violations. If you've got a constitutional argument that ends up in federal civil court, specifically U.S. Constitution, U.S. Constitution, state constitution issues would still be on state courts. Other things can end up there, though. I've had insurance, you know, insurance disputes, insurance claims that we were litigating ended up in federal court because the parties lived in different states.

Right. And that's something that can trigger federal court. You know, if if I'm if if someone's suing me and they're in New York and I'm in North Carolina, we can end up in federal court because they don't necessarily want to come down here to North Carolina State Court. You know, we can we can end up in federal court if the parties are from different states. So there's all kinds of reasons you can end up in federal court.

That is a really quick I know we're up against another break. That is a really quick outline of how the court system works. The outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer law firm also joining us on the program today. Attorneys at Whitaker and Hamer, Cassandra Nicholas from the Warhead City office and Taylor Scruggs Smith in studio.

Joe Hamer is on assignment when we come back. We'll preview what's coming up on future outlaw lawyers. Welcome back in the outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer law firm, practicing attorneys here in North Carolina, hosts of this show. Joining us in studio, Taylor Scruggs Smith and from the Morehead City office remoting in Cassandra Nicholas, Joe Hamer on assignment. Josh, wrap it up.

All right. So on the show, one of the things that we like to do we haven't done in many weeks is we like to talk about Supreme U.S. Supreme Court cases that have been heard or that being decided. And we like to talk about that decision because we it doesn't always get good treatment in the in the local or national news. And so that's one thing we enjoy doing here.

And you may have noticed we haven't done it in a while. And that's because the current U.S. Supreme Court is not really releasing any opinions as they go along. They're kind of all being saved up.

So it would seem right. So they're hearing cases we're not really getting their opinions at. But there are big cases coming up that we're going to spend some time talking about.

What are some of those? So I know that one of the big ones that the entire nation is watching is going to be starting oral arguments on the 28th. I believe it is. And that's the one in regards to that student loan forgiveness that President Biden put into place about the one time extra payment, depending on how much you make and how much you have in student loans that got challenged by members of Congress. And that's going up on the 28th. And then also there's a really big case getting heard on arguments now against Google, which could affect the Internet pretty highly concerning protections that the platforms have for sharing third party content.

And promoting third party content and things like that. So pretty big things coming up in the national Supreme Court news that we're all kind of watching. Yeah, yeah, absolutely. There's tons of big cases. You know, the last last Supreme Court session, of course, we had abortion, gun rights.

We had a ton of a ton of things that were definitely worth talking about. And this slate has many similar cases that are that are going to be big. Some of those cases haven't been heard yet. And then once I have been heard, we just don't have opinions. And I think this all comes from you may remember last year, the abortion case slips my mind, but the opinion was leaked. Leaked opinion.

Yeah, that was a big deal. So they've been much tighter regarding opinions coming out since then. The Outlaw lawyers, we are wrapping up the show. Those are some of the subjects we'll hit on future programs. So tune in next week. Again, the Outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer law firm, the managing partners there, and also practicing attorneys here in North Carolina, host of the Outlaw lawyers joining us on the program today. Cassandra Nicholas from the Moorhead City office and Taylor Scruggs Smith joining us in studio today. Well, for Josh, Joe, Cassandra and Taylor, I'm Morgan Patrick.

We'll see you on the radio next week. Outlaw lawyers 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 / 2023-02-25 16:26:17 / 2023-02-25 16:50:03 / 24

Get The Truth Mobile App and Listen to your Favorite Station Anytime