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All-Star Group of Lawyers Joins Judica County Radio for Q&A

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
February 3, 2024 2:00 pm

All-Star Group of Lawyers Joins Judica County Radio for Q&A

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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February 3, 2024 2:00 pm

On this edition of Judica County Radio, Josh Whitaker & Joe Hamer welcome in three of their own to help with question and answer. Attorneys Taylor Scruggs-Smith, Ashley Pinner, and Cassandra Nicholas join Josh & Joe to tackle questions. Family law, Estate Planning, and Estate Administration questions will be answered by the legal minds of Whitaker & Hamer.

If you have any legal questions of your own please call Whitaker & Hamer Law Firm 800-659-1186.

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Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer
Outlaw Lawyer
Josh Whitaker & Joe Hamer

Coming up on Judica County Radio, Josh Whitaker and Joe Hamer managing partners at Whitaker and Hamer Law Firm and the hosts of this program will get into all different areas of legalese and they have three guest attorneys joining them on the program.

Don't go anywhere. Judica County Radio coming up next. Judica County Radio.

Your hosts, Josh Whitaker and Joe Hamer. They're the managing partners and practicing attorneys here in North Carolina. You can find them, of course, at Whitaker and Hamer Law Firm, your law firm for life.

Offices conveniently located for you in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia, and Morehead City. I'm Morgan Patrick, consumer advocate. Each and every week it's always legalese. This week we'll have a number of different attorneys joining us on the program.

We'll explain here in just a little bit. So if you've got a legal situation that you are facing, and you've got questions, you can always call the firm Whitaker and Hamer. 800-659-1186. That's 800-659-1186. And 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 the show info at And we will answer those questions on a future broadcast. But joining us, of course, our hosts are Josh Whitaker and Joe Hamer. Josh, take it away.

Josh Whitaker and Joseph, how are you? I'm good, man. I was, I don't feel like he took it anywhere, man. You're supposed to take it away.

Like he stayed right in place, man. I was stretching, hoping I could get going. And you called on me instantly. You're going to have to, uh, I'm sorry. I, you know, I've been trying to, uh, we talk about this a lot on the show. I've been trying to eat better and, uh, at least lunchtime. How's that going? Well, it had been going good. And today I forgot to prepare.

So that's the thing. You get good, you get your body used to it. And then that one day you forget to bring something or make time to get something that's, that's healthier because a lot of it's not healthy. It's just healthier than what I was eating. No time, man. Lots of clients, very busy day. Had to get, get on the radio with you guys.

Double quarter pounder value. That's what I had to do. It brought me down a notch. I've been doing a lot of research, man. And, um, you know, there's a lot of scientific evidence out there that eating healthy is, is terrible for you. And, uh, it's actually, yeah, it's not good.

So. I was, I was going through some old pictures, uh, with my, well, not even old, it was just 2024, I guess, but these were from 2022. I was going through some pictures and I looked a lot healthier, a lot younger.

And this is like a year ago. I saw myself, I saw myself the other day and I, it was, it was a bad experience, man. Well, this whole thing, this whole couple of months long experiment started because, uh, I used to see, you know, like I'm not, I don't think I'm a very vain guy, but social media, like I'd see a picture of myself and I'm like, okay, well, that's all right. You know, I'm good with that. That's the best I can do.

Right. I'm fine with that. And, and, and then like, I saw a picture of me, I was like, I was like in public with just doing something random. I was like in the corner of a picture.

I was like, who is that? Is that me? Now, wait a minute.

No, no, I, I want to defend you in a little bit. I haven't seen the picture, but a lot of times if you're in the corner or the end of a picture, it gets stretched. So I think it might be a little exaggerated.

Maybe. So maybe, maybe it's like the TV ads, 10 pounds. There's like 10 angles that, that you look pretty good from, man. I can say from a platonic place, but there's that one angle and disgusting. That one angle where it basically says double quarter pounder value meal. Look, man, there was a time when I was younger, there was a time in high school and college where I would eat fast food three times a day, four times a day. Oh man, there was a, there was a time, uh, there was a time for me in college where I was pounding double croissant, which is two of those bad boys to the face.

Well, I mean, they gave it, they gave it to you for a buck 50. You got to eat both of them, right? No, I eat both of them.

I hope some, someday Joe's a few, you get super duper popular and, and, and as a society where we want to recognize all the contributions that Joe Hamer made to society and someone undertakes a Herculean effort to buy, you know, do your biography. And, and that phase, your double croissant, which phase gets like its own name, you know, double the double double croissant, which phase. They're so good, man. What is it about those things? They're so, and that's like, you hold the bag or you just get the bag out of the window and it like almost breaks your arm. It's so heavy, man. It's like pounds of food. It feels like, but, uh, very good, man. Not very good for you.

Not very good. That's what I came to find out as I turned into a literal balloon. I'm getting back there again, man. I saw myself the other day and I was like, what is, I didn't even think it was a person. I just thought it was a creature.

Like it was a weird creature playing with my kids and it was me, man. I mean, I don't want to, I don't want to cause a rift between our two hosts, but Josh, you just said to Joe, one day when you become memorable, I mean, Joe, are you okay with that? Well, he likes to inspire me and he likes to push me by insulting you. And he knows, he knows.

Yeah. So that's, that's, uh, that's something we'll have to, we'll have to work on and we'll have to get to that, to that level where we, uh, we, we get there. But, um, I'm still in that phase of, of understanding that every, I need to do better and, uh, getting real sad about it, but I haven't, haven't hit that point where I'm ready to do it yet.

So I'm going to keep on trucking down the path. Well, Joseph, Joseph's, uh, just, he's a young man with his, his, uh, his entire future ahead of him. He's not old and washed up like we are. That's true. That's a very good point, Josh.

Thank you for insulting me too, because apparently now I'm washed up. So good, good one, Josh. Well, anyway, today's show today's show is, uh, we tried to, we're, we're going to try to have a theme today. And our theme is using, uh, your attorney, uh, which could be me and Joe Whitaker and Hamer could be your attorney, but using your attorney. To plan, uh, to keep your information private and to keep you out of court, to keep you out of litigation, to keep you out of, uh, the clerk's office. And so what we did is, uh, we've got a couple of attorneys lined up and I talked to, I talked to the attorneys, uh, earlier this week, um, about using, using attorneys to plan.

And so me and Joe, we're going to start off this, this theme, you know, me and Joe have talked about a lot of different things over the past couple of months. And, and one, a lot of times we hear from listeners when we talk about keeping the government out of your business, right? Keeping the court system out of your, your business, keeping your business, um, your estate plan, your assets, uh, your personal affairs out of the public arena, out of the court, out of the clerk's office.

And so that, that seems to be something that a lot of our listeners have some concern about, uh, these days when privacy is kind of, uh, not, not as, uh, not as, uh, prioritized as maybe it once was with the advent of social media and what people are willing to share with the, with the public versus what they used to be able to share. And so, Joe, um, I was going to kind of start off our theme talking about something me and you spend a lot of time with, and we spent a lot of time doing business planning. Um, so people coming in, running a business, buying a franchise, buying a business, um, and, and just, you know, talking about what, what has to be out there at the secretary of state's office, right?

Cause that's where you set up most your, your LLCs in your, in your corporations and those kinds of things, you start off by, by setting up the shell of the entity over at the secretary of state's office. Um, and you know, there's certain information that has to be public and there's certain information that can be kept private in your incorporation agreement, your operating agreement, your, your entity docs. And, and Joe, so that's kind of where I was going to start today, just talking about what has to be public in that arena and what has, what could be private.

Yeah, that's a good topic, man. You know, and there's some things that you can't circumvent, you can't get around and make them completely private, but there's definitely strategies you can employ to make it very, very, very difficult for anybody to, uh, to, to get to the bottom of it. And to, to breach that the layer of privacy you could get if you do things the right way.

Yeah. So if you organize an entity down at the secretary of state's office, you're going to have to give certain bits of information that will be public record, right? And so, uh, we call those, uh, your articles, right? If it's an LLC, it's articles of organization, if it's a corporation, it's articles of incorporation, but this document that you prepare, these articles will have to have certain bits of information, uh, your name, you know, if you have a principal office, uh, a registered agent. A registered agent has no real corporate authority, but a registered agents who would get served.

If you were, if your business was sued, there needs to be a person in North Carolina or a company in North Carolina who will accept service if your entity is going to be sued and that's public record. And then short of that, there's not much else that has to be out there on public record when you're getting an entity started the rest of that information, who the owners are, who the shareholders are, who the members are, who the officers are, who the managers are. Those are all what I would call internal documents, like your operating agreement, your incorporated, and that can be kept private. That's on a need to know basis.

Your bank might need a copy of that, uh, though, who can access your accounts or, you know, certain customers that buy and sell with you may need to know that information, but the general public doesn't have to know that. And, and, and again, some people, you probably see this slide, Joe, some people you can layer entities, right? You're, you can have an LLC where the, the owning member is just another LLC and that's owned by a trust. And so you'll see, yeah, you'll see a lot of people layer these entities for increased privacy. Now your legal fees go up, right? But for sure, it's more work, but like you said, that's, that's kind of what I was getting at, you know?

You're, you get these layers of insulation and, uh, and, and if privacy is paramount to you, that's something that, that you can definitely go to great lengths to protect. So it's definitely doable. So that, and that, again, that's just planning.

There's just meeting with an attorney, right? If you go do this on one of the self-help websites, you may not get that kind of advice. You may not get that kind of insight, uh, we'll talk to you about what you're, what you're working on and what you're trying to, to achieve. And maybe privacy is not a big, uh, maybe that's not very important to you in whatever endeavor you're trying to get started.

And, and maybe for some people it's, it's the most important thing, depending on what the endeavor is and what businesses is being started. But again, just an example of, of, of planning, um, which you, you don't get in the self-help, um, you don't normally get it. If you've met with a, an experienced attorney, you meet with an experienced attorney who's done some things, who's seen some stuff. And, and you get that kind of, uh, you get that kind of planning and insight, which is what I would argue you're, you're really paying an attorney for. But, um, but, but again, you're going to continue this conversation, what can be private, what has to be public and, and, and ways to kind of keep your personal business, your personal business.

All right. We're looking forward to that discussion. Coming up on the other side, you're listening to Judica County Radio, your hosts are Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, pricing attorneys here in North Carolina. Again, office is located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and in Moorhead City. If you've got a legal situation, need some questions answered, well, you can always call the firm, 800-659-1186. We'll get you in touch with Whitaker and Hamer. That's 800-659-1186.

Leave your contact information, briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. And you can email your questions to the show info at

We'll be back right after this. . Welcome back in to Judica County Radio, your hosts are Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm. They're practicing attorneys here in North Carolina and offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and in Moorhead City. We've got a real treat, we've got attorneys from different areas of Whitaker and Hamer's practice joining us on the program today.

Josh, who do we have up first? Up first is going to be one of our associates, attorney Taylor Scruggs-Smith. She spends most of her professional life dealing with what we would call family law matters, divorce, separation, prenuptial agreements, custody. And today in our conversation with Taylor, we focused on the separation. You know, what is separation in North Carolina?

A lot of states don't have that provision in their divorce proceedings. So we talked about separation, what you can negotiate to keep private, what becomes public information and when. But again, staying on this theme of how you can plan to keep things more personal, more private with your attorney.

So that's where we took this conversation. As always, we're answering listener questions, questions that our listeners have written in about or asked us in person or clients that we deal with. And Taylor is one of our family law attorneys here at the law firm of Whitaker and Hamer, and she joins us often to answer family law questions. And so the question that I get a bunch, Taylor, we in North Carolina, we're very lucky.

Our economy does very well. We have people moving in from all across the country, a lot of people from New York, a lot of people from California, Texas. People are moving here from states where if you decide that you and your spouse are going to get separated, separation is not as big of a deal as it is in North Carolina, because in North Carolina, obviously you're required to be separated for a certain amount of time before you can get your divorce judgment or your divorce entered. And a lot of people, this is a foreign concept, is having to be separated for a year doesn't jive with the way it was where they came from.

So that's what I want to talk to you about. So first, just tell me a little bit about the separation period. What is it? Why is it there? That's the first question.

All right. So separation is essentially the time that you and your spouse are living. The statute specifically calls it living separate and apart. So one of the things I get asked all the time is, OK, does that mean I can live in the apartment that's in the garage or the apartment in the basement? And he stays in the main house or in there in the master bedroom?

You can't do that. You have to actually be living separate and apart if you guys still hold the same address. The court's not going to think that you guys are separated or that you were separated for the whole time. I usually tell people, you guys need to have separate addresses.

Y'all, you need to have a bank account in your own name. Like if mail gets delivered to you, it shouldn't be something he can pick up. Things like that, because the court is very particular about you have to be living separate and apart. So this separation period, I think the court was pretty heavy on.

Well, not the court, but legislator was really heavy on trying to make people think through. Did they actually want to get divorced and giving them enough time to potentially let cooler heads prevail and settle issues of finances before you ever got to the time that you could file during the separation period? You can file for alimony, ethical distribution, things like that. You just can't file for divorce until you've been separated for a year and a day. If you go to court, you always hear an attorney say a year and a day because you can't sign your paperwork on that exact year anniversary.

As attorneys will try to push you back a couple of days because judges will kick it out if it's on the exact anniversary. Well, that's the sort of separation periods of being a big deal because a lot of folks, especially in the economy here over the past couple of years, actually separating and creating two households is a is a is a big, big time expense. And, you know, a lot of folks are in a situation where, you know, paying the bills and like a shared household was a struggle.

And if you're looking at separating and creating two households to be separate for that year period, certainly that's a it's it's tough on a lot of a lot of folks and a lot of potential clients. But there's not a lot of workarounds. It doesn't sound. No, there's not a lot of workarounds. I get asked often, well, if this is going on, can't that get sped up? Or if there's a BPO, can I not have to wait a year or if there's an affair, can I not have to wait a year? There is no work around for that year long separation.

It doesn't matter what's going on. I have to, as an attorney, wait a year for you to be separated until I can file your divorce. What you end up seeing happen is that if finances are a struggle and you see people where finances are a huge struggle already. So trying to split the two different households is astronomical. But one thing you do is you see some people who try to negotiate some type of agreement while they're still living together. Because you can say this is going to be our anticipated separation date, which is the date whoever somebody moves out.

Go ahead and start figuring out the finances and how you know, you may decide to split the house or retirements, accounts, things like that. Sometimes you see people move in with family for a couple of months until they can just so they're out the house and they can at least start the separation period. Because the longer you're in your house, the longer the separation period. And the data separation is not important just for how long you got to wait to get divorced.

Data separation can determine, you know, what values we're looking at in terms of property and your retirement accounts and things like that. So the separation period is important in North Carolina, but the date that you start the separation is also important. So assuming that you can separate, like assuming you can afford to do it and you guys have two different addresses and you create two separate households from that start date. There's going to be a year that goes by before you can get to the divorce, before you can get to alimony, before you can get to that kind of stuff.

But in the interim, what can you do? We always talk about on the show, you know, attorneys, we try to plan so that you don't have to have a lot of information out in the public, right? You can settle what you can settle, whether it's family law or state administration or state probate. Take care of the things you can take care of without having to go to court, without having to have a file open downtown at the clerk's office. What are some of the things that you can agree to once you're separated after separation before divorce? After separation before divorce, there's a lot of things you can agree to. You can actually file for alimony, after distribution, child custody and child support as soon as your date of separation starts. You don't have to wait till you've been separated for a year to file for those claims.

And I think that's a common misconception is people think they have to wait a year to file for alimony. But the things that you can handle in a separation agreement are those same concepts. You can put in child custody into a separation agreement. You can put in child support. You can put in any type of alimony or post separation support.

You can put in equitable distribution, which is usually referring to how you're splitting retirement accounts, personal property like the couches and the kitchen cookware, you know, the house itself. All that can go into a separation agreement. But let's say you can't get all of that into a separation agreement because you can't agree to everything. OK, take up a few parts you can't agree to and settle everything else so that you at least have some progress on the situation.

And not every issue is held out to be resolved. But, yeah, there's a lot you can do in a separation agreement. The big thing is always when it comes to the kids, you can have an agreement. The court's still going to have jurisdiction in terms of if somebody wants to file for child custody later, as long as the kids are under 18, they can still take it before the court, even if you have an agreement that says this is how we're going to do custody.

And that's just because that's interest in the child court always wants to be able to protect kids. So short of child custody, you can really deal again. A lot of times this time of separation is, you know, it's very emotional period.

Right. So you're not always dealing with folks who obviously there's been something that's happened where you can no longer cohabitate and you might not get along the best. But assuming there is a will to get things done, you can sounds like you really negotiate a lot of stuff, even though you're not divorced yet, kind of right out of the gate right at that separation.

Correct. So you can actually negotiate a lot of stuff. And in a certain sense, the court encourages you to negotiate. For instance, when you file for equitable distribution, at some point, the court expects that you're either going to mediation or you're filing something saying why you don't think mediation will work. But the court encourages mediation. So they're not going to come tear up your deal because they don't like it. You say that there's been a deal outside of court. Courts moving on. Yeah.

They're only going to focus on the issues that are brought before them. So I typically tell people, like, you know, if you can get something settled, go ahead, because you're going to be more willing to go through with something that you had a hand in making versus something a judge told you you had to do. Yeah. And a lot of times we're doing when we're doing our planning with our clients. And again, this could be civil litigation, estate planning, estate administration, family law.

Part of our planning process is what can we handle privately? Right. It doesn't have to be in a court file down at the courthouse that a clerk, like I said, a judge's order a judge. You never know. We think what we know judges are inclined to do, but we can never predict what a judge will or won't do or won't put in an order or, you know, there's just some unpredictability there. And especially me living in the business law sphere so much as I want to be able to handle and take care of everything that I can take care of.

It doesn't always work in that sphere either. But we're good. I think that's a good answer. I get asked that all the time about the separation period in North Carolina. Some people just feel like they should be able to get divorced in a week and maybe they should be able to. Maybe there's an argument that we, North Carolina, we've outlived the usefulness of the separation period. But until the legislature changed it, changes it, that's where we are. Yeah.

And I get asked that all the time. See people trying to find work around ways. There's no work around the whole year, year and a day. That's it. That's all I can do. All right, Taylor. Well, I appreciate it. We'll talk to you soon. All right.

Bye. And that's Taylor Scruggs Smith, fellow attorney at Whitaker and Hamer, joining Josh Whitaker and again, Family Law The Focus. We're going to continue with more discussion coming up on the other side. Who's up next, Josh? Morgan, up next is attorney Ashley Penner, who is going to speak to us a little bit about estate planning and trust.

There you go. And coming up, we just want to remind you, too, if you've got a legal situation you're facing, you can always get in touch with Whitaker and Hamer Law Firm, the power behind this program. Their phone number is 800-659-1186. That's 800-659-1186.

Leave your contact information briefly what the call is about. And an attorney with Whitaker and Hamer will be in touch. And you can always e-mail your questions to the show. We'll answer them on a future broadcast, info at

That's right. More Judica County coming up on the other side. Music Welcome back into Judica County Radio, your host, Josh Whitaker and Joe Hamer, managing partners Whitaker and Hamer Law Firm.

Offices located conveniently for you in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and in Moorhead City. Whitaker and Hamer, your law firm for life. I'm Morgan Patrick, consumer advocate. Josh, we are again having some of your all-star attorneys joining us on the program.

Who's up next? Up next, we have attorney Ashley Penner. She is with our firm, has been with our firm for a long time, handles estate planning and trust. Today, our theme has kind of been talking about how you can use your attorney to kind of do some planning. We've talked about business planning. We've talked about family law planning with Ashley. We're going to talk about estate planning and and later on in the show to talk about what happens if you don't do estate planning. What's what becomes purview of the court, public information? What do you have to deal with if you if you don't do your your planning?

And so, Ashley, in that vein, I know one of the things I wanted to talk to you about today, one thing I want to ask you about is this planning process. You know, and what you can do to keep your information private, to keep your stuff out of the purview of the court. None of us ever want to have to rely on a clerk's order or a judge's order or get our assets caught up in an estate probate or an estate contest or or something like that. And people in that vein, you know, we're going to talk about, you know, your estate planning a will, which I think everybody's pretty familiar with what a will is and what a will can do. That doesn't get you out of probate versus a trust, which I carefully crafted and managed and monicured trust would keep you out of possibly probate. So that's where I'll start it with you kind of the advantages of what is a trust and kind of the advantages of trust. Yeah, the trust is a legal document that, of course, you would create as a part of the estate planning process. It can hold assets during your lifetime and then speak to or control what happens to those assets, how they're distributed or how they're held in trust, who they can benefit after your death. And it's the ability of the trust to hold those assets while you're still living. That gives you that probate avoidance. They've already been transferred into this this legal entity, so to speak, that you've created. You've already designated someone who we call the trustee that's going to be in control of the assets after your death.

And it streamlines that process so that you do avoid the probate process or administration process where a clerk is involved in making sure that what you've said in your will is honored in the in the administration. So when I was when I was growing up, I think the first I was trying to think about earlier today, the first time that I ever heard anybody talk about a trust. And I think the first two times that I can remember hearing anybody talk about a trust was, oh, man, who was the rich guy on Gilligan's Island? Oh, it was his name. Mr. Howell. Mr. Howell. And or Beverly Hillbillies.

Beverly Hillbillies a couple of times. But and maybe that's why I think about trust. I think about they're just for the rich people. They're just for people with like tons of assets and and and that's really not the case.

No. Yeah, I definitely grew up thinking the same thing. Any time I heard them, of course, no one, no one in my family ever had a trust, nor have I ever been the beneficiary of a trust. So most of my my actual knowledge of it comes from law school, like like most of us, probably. But it is certainly not reserved for folks that have massive amounts of wealth. I tell a lot of my clients, you know, if if the only thing you end up using your your trust for is to hold your real estate, you have done yourself and your family a significant service.

Because, again, it's going to really trim up what they have to do and how quickly they can do what they need to do, depending on what that is. So, yeah, I've always heard this rule of thumb of five million dollars. You should have roughly five million dollars in assets before you should even think about or worry with or bother with a trust.

And, yeah, not the case. It has so much benefit to so many different folks. You know, and it's it's kind of one of your biggest estate planning tools. And, you know, a trust is basically I think of it as, you know, it's kind of like starting a business.

Right. You start an LLC, you start a corporation, you're starting the law sees that as its own entity, its own its own thing. And so I'll talk to people a lot about probate assets and non probate assets. But the trust is like a magic bucket. You can put things in and trust will not trust isn't going to die. It may terminate on its own. It can only go on for so many years. But in theory, it's going to outlive you. And that's the convenience of it. It's like this is kind of oversimplifying and maybe kind of dumb, but I like it as a metaphor. But it's like you put stuff in this bucket and this bucket automatically goes to your heirs.

Yeah. No one looks in the bucket. No one's going to ask you questions about the bucket. You've got some basic asset protection if someone was going to sue or challenge the way you're distributing your things. So it's like this magic vehicle and there's tax advantages and there's other advantages, too. But it's this magic vehicle to get stuff to your heirs easily. And, you know, you think about it. If you if you've got a house with equity and you've got vehicles and you've got your 401K and you've got your investment accounts, we may not think of ourselves as as having a lot of assets.

The average American who might be looking at this. But you've got a lot of assets to protect. Certainly. If you you might have a different stance on that, if you're being sued and you start looking at what could become subject to a judgment in the you know, in the event that one is in place.

Yes. Then you absolutely have a lot of assets. And then, you know, something you mentioned, I think that is also good to point out what the trust is. It has so much flexibility because it is that, you know, that existing entity. It can undergo changes, you know, a little bit more easily than if you're changing how your will distributes your property. There is a lot more rigor involved in the signing of a will than in signing of a trust, but also the privacy that it brings with it. The fact that, yeah, no one's going to be delving around into that document. And no clerk is going to be looking over the shoulder of the trustee to make sure that, you know, they've they've adhered to adhered to the rules in the trust.

It has the privacy that a lot of folks want in keeping all of their business out of court filings. I guess there's certain things we're talking about trust and I've talked to them as magical about being magical and things like that. There's things trust don't do that you need your other estate planning documents to do. So one of the things that you pointed out to me before is, well, you know, if you have a good trust, your will is what we call a pour over will.

Right. Where the will is just saying, hey, anything that I haven't managed to get into my trust, please give it to my trust. And so that's a pour over will.

But there's there's other things that will can do for you. And and actually, you always point out to me, I always overlook guardianship. You know, that's an important one to your minor children. Right.

Yeah. Making sure that anyone who's under the age of 18 has that you've been in control of saying who they should be with, who should be caring for them. If you don't have a will.

Right. You're leaving it up to the courts to determine with whom they should be placed. And also, you know, sometimes, unfortunately, there might be people who you as much as you want other folks to be the guardian of your children, there are folks you don't want to be guardian of your children. And the will is a place where we can make that known as well. If you don't leave a document behind that addresses that at all, it could be the person that you ultimately did not want to be guardian of your children who goes and applies for that guardianship.

And now they are being raised by someone that, you know, in your mind would have never your children would never live with. So a trust is certainly a very important estate planning and can be kind of the primary estate planning vehicle, but it can't do everything that we need. So I tell a lot of my clients, you might have a will and not have a trust. But if you have a trust, you should still absolutely have a will, because aside from addressing guardianship, let's say you don't have minor children anymore.

You go out and you acquire assets. Let's say you've you've gotten this trust prepared and you're working on getting everything transferred into it. And then something happens, sudden death, and you don't get a chance to continue in your your funding of this trust mission. You've still got a valid will that's going to get everything there. Yeah, I talk to a lot of clients who who who definitely think it's an either or situation like, well, I've already got my trust or I've already got my will, but you really need both of them. And the will handle some things you can't handle with the trust.

And there's also kind of a fail safe there so that that does come up. I know there's other ways we're talking about the trust being this magic bucket, which can make otherwise a probate asset, an asset that would have to go through probate, non-probate, private. There's other ways to make probate assets non-probate. Yeah.

Yes. So, you know, you might have things like bank accounts, life insurance, retirement plans. And on all of these assets, you know, we counsel our clients. You want to make sure you have beneficiaries designated a primary beneficiary and a contingent. And maybe, you know, if you're a married couple with children and you have this trust, you're going to name your spouse as the primary beneficiary, but then you name the trust as the contingent beneficiary. But even on things like bank accounts, you can name a payable on death or transferable on death beneficiary. And these are ways that you can ensure that those assets avoid that probate process.

There's not going to be a significant delay in being able to access those funds. Of course, you'd have to have a death certificate. We don't want people are designated beneficiaries being able to show up at the bank and say, hey, she died.

Can I have her money? Right. We want them to show that proof through death certificate. But that's going to be a much shorter process than going to the clerk's office and setting up that estate, that probate estate, and then transferring the account into an estate account and then documenting for the clerk what funds were in that account. That's going to hold up things. And particularly if we have a situation where, you know, parents are lost and there are children that, you know, will have needs that need to be tended to.

It'll allow for much less disruption in the basic maintenance and care for those those minor children. Well, actually, I think that's I think that's a good discussion today, kind of on this, this using your attorney to plan things out for you, to make your life easier, to keep you out of litigation, to keep you out of the court, keep you out of the clerk's office. So I appreciate that. You know, the first step in estate planning is to is to give us a call. If you call Whitaker and Hamer, if you call our law firm and you want to talk about estate planning, you're going to end up talking to Ashley.

And that's for good reason. She handles many, many, many of these every month. And she's she's a good place to start. And we'd be happy to help you with that. But, Ashley, I know we'll talk about this again. So we'll we'll see you before too long.

Absolutely. Looking forward to it. That's Ashley Penner again, estate planning with Whitaker and Hamer. We are again visiting with the all star team of attorneys at Whitaker and Hamer hosted by Josh Whitaker and Joe Hamer.

Again, hitting a lot of different questions that the firm gets quite a bit of. And, folks, if you've got any situation you're facing and you need answers to those questions, 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 call is about. And an attorney with Whitaker and Hamer will be in touch and you can email your questions to the show. We'll answer them on a future broadcast info at Judica County dot com. When we return on Judica County radio. Yes, we have another attorney and she's very familiar. Cassandra Nicholas joins us. It's about estate planning. We're looking forward to this discussion.

Again, that's coming up on the other side. Welcome back into Judica County radio, hosted by Josh Whitaker and Joe Hamer and the power behind this program, where you can find Josh and Joe. They're the managing partners at Whitaker and Hamer law firm. They're practicing attorneys here in the great state of North Carolina.

They have offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay-Varina, Gastonia and in Moorhead City. If you've got a legal situation you're facing, you've got questions, you need some answers, you can always call Whitaker and Hamer. Eight hundred six five nine one one eight six.

That's eight hundred six five nine eleven eighty six. Leave your contact information briefly what the call is about. And an attorney with Whitaker and Hamer will be in touch. And as always, you can email your questions to the show info at judica county dot com will answer them on a future program. So we have another attorney joining us on the program. Josh, who we got.

All right. So if you're if you've been a regular listener of our show, you know, and already familiar with Cassandra Nicholas, but she is our attorney stationed out of the Moorhead City office who deals with a state administration and probate across the state of North Carolina. But we bring Cassandra on to talk to us about a lot of different things today. Cassandra is here to talk about state administration probate.

You know, there's those words kind of go together. But basically, you're dead. And someone, hopefully someone you've named and planned is taking care of your affairs, taking care of your estate, taking care of your assets because you're no longer here. And me and Joseph, we spend a lot of time talking about planning ahead of time using, you know, using your attorney to plan ahead of time to avoid probate. Right. We're going to try to avoid the whole process to the extent that we can to try to keep your information private. Keep your heirs or your fiduciaries from having to go downtown and deal with a clerk, deal with a deal with a judge, keep things moving along. And Cassandra, in that in that vein, I was going to talk to you kind of about what a state administration looks like when you when you can't avoid it.

Right. So you're you're usually only involved if we can't avoid. And we just spent some time talking with Ashley about trust and and planning to kind of keep things out of probate. But let's just say you don't do anything. You never plan and you die.

What's that going to look like? So I absolutely want to funnel people to Ashley. If you're not already in a situation where you need a state administration, please do your estate planning. Trusts are an excellent tool to be able to avoid a state administration entirely. If you're not using a trust or not causing assets to be automatically transferred to your intended recipients by some other means, either as naming them as beneficial beneficiaries on specific assets, pay on death beneficiaries on bank accounts, putting folks on vehicles with you as joint with right of survivorship so that those automatically transfer just as a function of generally a contract.

If that's not the case, then there are two camps. When you get to me for a state administration, there are folks who did estate planning and have a will and everything, but still need a state administration because there are assets that did not automatically transfer by some other means. So you can die test date with a will with assets that the clerk needs to assign award to your intended recipients, or you get stuck with the state's default rules and that's dying intestate without a will.

And there's there's nothing inherently wrong with that. The lawmakers did think, you know, long and hard about how to come up with the schemes of intestacy and how errors would inherit. But those default rules aren't necessarily what everyone wants. And understanding what those default rules are is important in your estate planning or in in considering what happens. A lot of folks don't realize they think if if they are married to someone that the default rule must be that their spouse gets everything when they pass. But that's not the case. The intestacy statute, if you have a spouse and children, your your assets are split between your spouse and children.

So if you want your spouse to have everything and you don't want it to be split with your children automatically, you want your spouse to have, you know, the authority to do what they want with those assets that needs to be done through estate planning rather than allowing just the default rules to exist. Yes. One is this one of those nightmare situations that we we unfortunately see. You know, everybody everybody thinks depends on how old you are, how you know, I'm in my late 40s now. So I'm surely I'll make it to my 70s. Right.

And people in their 60s. Surely I'll make it. I hope you do. Thank you.

Me too. But but you always think you've got more time and maybe hopefully you do. But we were in that situation where someone dies way too early. You know, so we we've got situations where the 40 year old father of three has a heart attack and passes away.

You know, it hasn't done any estate planning. That's that's young estate planning is hard to think about. And yeah, like you said, like, you know, if the house isn't owned correctly, you know, if that situation where a spouse is inherited with underage kids and trying to get that house sold or dealt with when one of the owners is your four year old son is challenging to say the least. Right.

Oh, absolutely. Because then we're also dealing with not just the the intestacy, not just the estate administration. You also then need to deal with a guardianship in order to the the courts are interested in protecting the assets of minors. So a parent can't just automatically make decisions about real estate that a minor inherited for them.

You need to have permission from the courts to do so. And, you know, that that is a lot of work time. Attorney expense, court fee expenses, mandatory hearings for guardianships to get a guardian assigned. So especially when there are minor children involved, it's it's important to. Do the estate planning on the front end because we are here and we're happy to help with all of those. But we want people to be aware that it's definitely going to be added time and expense when you haven't avoided those on the front end.

You know, it's just like anything else. You know, we've talked me and Joe have talked today about business planning. You know, you can do a lot of planning with your operating agreement, with your business assets so that when someone passes away or when there's a disagreement with a partner, you've already kind of planned out what's going to happen and it doesn't necessarily have to become something that's litigated.

Right. Our big theme today is things that the courts have to be involved with, things that have to be public versus things that you can keep private and plan around. And so we've talked about that as, you know, business planning.

We've talked about Taylor. We've talked about family law planning. If you know, you know, prenups, separations, agreements, planning before separation.

There's a lot of stuff you can plan and agree to and keep private rather than putting it on display in the kind of public arena. And, you know, we've talked to Ashley about estate planning, try to avoid probate. But but here, you know, our example, our 42 year old who passed away way, way, way too early without any notice.

He left his family with a lot of trouble because he hadn't planned. And that's no knock against him. That's the way these things go.

But to the extent that you can stop what you're doing and think about it. You know, when I was growing up, I felt like trusts were for rich people. Right. Rich people had had trust.

But that but that's not the case. And I know we also help people administer trust. A lot of folks will create a trust and not have a son or a daughter or a spouse who can who can run the trust, administer the trust.

So we will do that a lot for folks, too. But I was going to ask you, Cassandra, in this public versus private discussion that we're having. If you have to if you're passed away and your heirs have to go open an estate for you, whether there's a will or not. So they have to just do some estate administration. What kind of information is public at that point? So estate administration files, the entire file is public. So some of the counties have e-filing now. So a lot of this is also available.

Just click the button on anyone's browser. So your heirs, whoever whoever your heirs are through intestacy, their ages, their addresses, what your assets are and the exact value of each asset. What your debts are, the claims against the estate. So it's it's a lot of information that's public, even down to the bank account statements, the the account numbers are redacted. And on the online filings, you can't pull those bank statements.

But in the physical file, which is public, those are accessible as well. So, yes. So, yeah, there's a lot out there. I saw I'm a big, big wrestling fan. You know, but somebody wrote somebody wrote a book about Ric Flair.

It was like it was supposed to be like a biography of Ric Flair. And they did it just everything was just based on files that could pull in the Mecklenburg County courthouse. So any estate that he was a beneficiary of divorces, guardianships, any kind of civil lawsuit. It's all public record. And the guy wrote an entire book just based on what he could get off the public record. So it's.

Yeah, yeah, definitely. And then so I'm happy to keep talking about what's public or not public. But I'd also like to jump back to your example of a 42 year old man who's passed unexpectedly with some debts. There are some tools at our disposal as or at anyone's disposal in filing estate administrations. If the person has a spouse or children under 18, there are ways to protect a spouse or minor children from creditors up to a certain extent. So it depends on what assets exist, what debts exist. But through a spousal allowance, a spouse can be assigned the first sixty thousand currently at sixty thousand of personal property. And that's able to be protected from most types of creditors. There are certain types of creditors, such as medical creditors that can get at a spouse regardless of a spousal allowance being filed. So there are certain types of debts that a spouse takes on no matter what, essentially. No, it's you know, and again, if all this property was in trust, if all this property was positioned in such a way where it did not become an asset of an estate, you know, that that really helps.

It really helps in everything that we've been talking about. It really helps keep it, you know, your heirs are going to move easy. Your family is going to just move. Yeah, it's a tough situation, but they'll be able to continue on without the angst of having to deal with what you deal with every day.

We're here to deal with that angst for you. But that that is something even for my clients that they they know their estate administration is happening. It's not completely out of their minds, unfortunately, until it's closed. And some of the clerks and courts run a ways behind.

Some of this can can take a while, even with, you know, good attorneys in your corner helping you through the process. So we're here to help. But to be able to do what's possible. Well, Cassandra, it's good to talk to you today. I always appreciate you joining us.

And thank you, Cassandra. Nicholas, fellow attorney at Whitaker and Hamer Law Firm, joining us on the program of state administration, again, talking about the different levels of law there. Josh Whitaker and Joe Hamer are your managing partners at Whitaker and Hamer Law Firm. And of course, they are the hosts of this show. And the power behind the program is Whitaker and Hamer Law Firm.

We are going to take a short break, come back on the other side and wrap this up. Now, if you've got a legal situation that you're facing, remember, you can always call Whitaker and Hamer. They've got offices conveniently located for you in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and in Morehead City, where you can find Cassandra Nicholas. The number to call is 800-659-1186. That's 800-659-1186.

Leave your contact information and briefly what the call is about. And an attorney will return that call from Whitaker and Hamer. And you can always email your questions to the show info at That's info at

And we will answer those questions on a future broadcast. We'll wrap up more Judica County coming up. Welcome back in for our final segment of Judica County Radio. Your hosts, Josh Whitaker and Joe Hamer, managing partners Whitaker and Hamer Law Firm. Offices located right here in Raleigh.

Also, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and in Morehead City. Both Josh and Joe, practicing attorneys here in North Carolina. And remember, Whitaker and Hamer, your law firm for life. I'm Morgan Patrick, consumer advocate.

We have been going back and forth. And again, great interviews with your attorneys from Whitaker and Hamer. But Josh, I want you and Joe to kind of wrap us up today.

I hope everybody to the extent possible. I know sometimes when we're trying to give folks information, because that's the point of me and Joe and Morgan sitting down today, is to try to give you information, legal information. Legal information that you can use maybe in your personal life or kind of give you a heads up on things. And so, with Taylor, we talked about family law and how you can plan before you get married with a prenup or why you're married with a post-nuptial agreement, or if you're getting separated, a separation agreement. You can contract to keep a lot of these details private. And then we talked to Ashley about some estate planning things that you can do to keep things in a trust, keep things private between family, keep things moving along after your death. And then Cassandra did a really good job kind of painting the picture of what it looks like when you pass away. Just what information's out there, what your heirs have to do, work with the clerk, God forbid. It's not usually good news when a judge gets involved within the state, but there can be a judge involved within the state.

So, with careful planning, a lot of things can be kept private and a lot of things can move along without needing to make a trip down the courthouse. And so, that was kind of the running theme that we had today, Joseph. Yes, it was. It was a good thing, man. I liked it. I liked switching it up, bringing it up.

I like not having to hear myself talk a lot, switching up the perspective. I like hearing you talk a lot, but I like getting our attorneys out there too, man. We got some good folks.

I was going to say, that was going to be my comment. I mean, the talent that you have at Whitaker and Hamer, I love hearing from the different attorneys. I mean, as hosts of this show, we get to hear Josh and Joe on a weekly basis, but hearing the other attorneys, I mean, you guys are, it's like an all-star team. It's pretty cool. I was going to say the same thing, man. It is an all-star team, for sure.

Yeah. Our roster of attorneys is one that I'm very proud of, the product that we're able to put out. And I'm very proud of the work that our attorneys are able to do. And when people come to us, they may come to us for one thing, they may come to us for a real estate closing, or they may come to us because they want us to handle their divorce or do their business planning, or they're being sued and they need some civil litigation defense or a traffic ticket.

But really, that's how the firm is set up. The firm is set up that for most people we can handle, our attorneys can handle, you know, most everything that you're going to encounter. And we have, you know, the firm's been around since we founded it back in 2004. And we've got a lot of clients that we've had since 2004, you know, and now we're helping their kids are coming of age and need some things done. And so we've been very fortunate to kind of be around being a lot of the same communities for a good amount of time. Our attorneys have been with us for a long time. We don't have a lot of turnover in the attorney department. And so for staff, staff up to partners like me and Joe, we're, I think, pound for pound. We're one of the better law firms here in North Carolina.

Twenty years. That's fantastic. And again, just a great roster of attorneys covering so many different areas. If you've got a legal situation that you're facing and you've got some questions, you can always call Whitaker and Hamer.

The power behind Judica County radio. The number to call is 800-659-1186. That's 800-659-1186.

Leave your contact information briefly what the call is about. And an attorney that part of that All-Star team will be giving you a call to answer those questions. You can also email your questions to the show info at Judica County dot com.

Well, Josh, Joe, another great show. We will see on the radio next week. Judica County is hosted by attorneys licensed to practice law in North Carolina. Some of the guests appearing on this podcast may be licensed North Carolina attorneys. Discussion on this podcast is meant to be general in nature and in no way should the discussion be interpreted as legal advice. Legal advice can only be rendered once. An attorney licensed in the state in which you live has the opportunity to discuss the facts of your case with you. The attorneys appearing on this podcast are speaking in generalities about the law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, you can direct such inquiry to Joshua Whitaker at JMW at MWH Law Lawyer.
Whisper: medium.en / 2024-02-09 01:34:38 / 2024-02-09 01:58:17 / 24

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