A last will and testament, often referred to simply as a “will,” is one of the foundational documents of any estate plan. Simply put, a will allocates how your estate, including all of your assets, will be divided upon your death. This allows the individual making the will, known as the “testator,” to ensure his or her family members and loved ones are taken care of in the future. It also allows the testator to distribute his or her assets according to his or her wishes and make charitable donations from his or her estate.
A last will and testament does not allow the testator to put instructions in place regarding healthcare decisions and medical care in the event that the testator becomes incapacitated. To do this, you will need to create a living will/advance health care directive.
The Purpose of a Last Will & Testament
The primary purpose of a will is to determine how you would like the various assets that comprise your estate to be divided when you die. If you die without a will, this will be decided for you by the court based on North Carolina law.
Depending on your unique situation, the assets comprising your estate may include:
- A family home
- Vacation homes
- Additional real properties
- Retirement accounts
- Bank accounts
- Personal property
This list is not exhaustive; essentially, all assets that make up your net worth in the eyes of the law are part of your estate and subject to distribution when you die.
In addition to distributing your personal property, a last will and testament can be used to name a personal representative who will be in charge of making sure that the wishes outlined in your will are carried out. You may also use your will to name a guardian for your minor children or an incapacitated adult in your care.
Supplemental Needs Trusts
If you are the parent or legal guardian of a child or adult with special needs, leaving assets to this individual in your last will and testament may ultimately be to their detriment. An individual with special needs must meet certain income requirements in order to qualify for federal and state benefits. Inheriting property and/or income from you upon your death may make him or her ineligible to receive these benefits.
In order to protect a loved one with special needs, you will need to create a supplemental needs trust, or special needs trust, as it is more commonly called. With a special needs trust, you may place certain assets aside for your loved one without affecting his or her ability to receive state/federal benefits by titling the assets in the name of the trust. This, in effect, shields these assets on behalf of your loved one and allows him or her to have the best quality of life possible after you are gone. You will need to designate a trustee who will manage the special needs trust. You can serve as the trustee during your lifetime, with a successor trustee taking control when you die.
Contact Law Office of Kelli Y. Allen, PLLC
The process of creating a last will and testament or special needs trust is not necessarily difficult, but it can be complex. It is important that you speak to an elder law attorney who can help you look at a variety of concerns unique to your situation.
At Law Office of Kelli Y. Allen, PLLC, our Charlotte elder law attorney can assist you in drafting your will, making changes to your existing will, or revoking your will altogether. We can also help you create a trust, including a supplemental needs trust, to protect your loved ones and family members. Reach out to our legal team today for a free, 30-minute meet-and-greet.
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