Ten New Year's Resolutions
1. Do you have a Durable Power of Attorney? Is it up to date? A Durable Power of Attorney is a legal document that gives someone legal authority to sign checks, handle legal affairs (including banking affairs), file tax returns, negotiate insurance settlements and manage real property on your behalf. The Durable Power of Attorney needs to be very specific. Also, you should name an alternate attorney-in-fact.
2. Do you have a corporate book and if so, is that book up to date? Have you had regular meetings and are those meeting minutes in the corporate book? Have bylaws been adopted and stock issued? If you have a corporation, then you need to act like a corporation. North Carolina General Statues require you to do so.
3. Check your beneficiary designations. Life insurance, annuities, IRA, 401k...so many assets do not necessarily pass according to terms of a last will and testament, but pass by contract terms or by beneficiary designation. It is very important to call your life insurance company, call the holder of IRA, and get in writing the name on the beneficiary and put this information with your legal papers. No matter what your last will and testament may say, these non-probate assets such as life insurance, IRAs and accounts marked POD (payable on death) or JTWROS (joint with right of survivorship) will pass pursuant to terms of the account, not pursuant to the terms of the last will and testament.
4. Does your family need a survey on family property? If you own a large tract of property, etc., more than likely you as parent or grandparent know the property lines and the history of the property. Many times children do not know the boundary lines and/or history. If you own a large piece of property, have a survey done while there are still family members living that know the history of property. It is important to have a survey certified so that it may be recorded.
5. Keep a copy of all legal docs in one place. It is so very important to keep a copy of your most recent last will and testament, trust, durable power of attorney, health care power of attorney, living will, deeds, beneficiary designations, cover page of stock accounts and bank statements in one location. Keep these copies up to date about every three (3) years. Alerting your next of kin where to begin the process of marshaling the assets is invaluable. So many people have older documents that they hold on to....go ahead and discard older documents...shred them! Keep the latest and greatest in your summary file so that your next of kin knows that this is where to begin. Use a strong box at home or a safety deposit box at the bank. Make sure that a child is named as a deputy and has a key. We strongly advise clients to not pull out documents and make changes. Do not write on your documents. This opens the door for interpretation and the original intention of the testator can be lost. If you want to make changes, meet with your attorney to do this properly.
6. Has your Will been looked at in the last five (5) years? It is important to have your will reviewed by a competent lawyer every five (5) years and certainly more often if you have a life-changing situation such as death, divorce, long term illness, birth of a child or birth of a grandchild.
7. Guardianship of Minor Children. If you have a minor child, it is your responsibility to have a will that names a guardian for your minor child. You want to have a legal document that names a legal guardian for your child, someone who will take care of, love and nurture your child. This needs to be reviewed also because life circumstances with the named guardian may change.
8. Registration on Bank Accounts and CDs. Go to your bank and ask to see registration information on your accounts and CDs. If you have an account or CD marked payable on death (POD) to an individual, then that is how the account will be paid, not pursuant to terms of your last will and testament. It may be your intention to distribute equally to your children, however, you have taken one child to the bank to have them made a signatory on the account. The account then is changed to POD or marked JTWROS (joint with right of survivorship). Make sure that you understand the effect of changes on your bank accounts. The bank needs to have on record a copy of your recorded durable power of attorney.
9. Statute of Limitation Issues. When did you learn about the leak in your roof? How long ago was your house built? Have you been involved in an automobile accident and settlement is not finalized? Do you have leaky windows or your HVAC is not working? Is someone using property to dump certain debris? Are you allowing your property to be used in a certain way? Keep in mind that the law is very time driven and if you have a legal issue, it is better to confront it now, not later. Do not continue to put off dealing with these issues.
10. Check registrations to title to real property. Is it tenants by entirety? Is it tenants in common? Is it joint tenants with right of survivorship? Tenants by the Entirety is when the joint owners are husband and wife. The property automatically goes to the surviving spouse. No Will, probate or other legal action is necessary. Is the intention for the surviving spouse to receive property? Maybe the property should be held as tenants in common for estate planning purposes, so that high value property is not in the name of one spouse only, but held 50/50 in each name. Tenants in common have no right of survivorship. If one owner dies, that owner’s interest will pass pursuant to the terms of the last will and testament, not necessarily the survivor. Joint tenancy is similar to tenants by the entirety, but the co-owners are not married. Joint tenancy includes right of survivorship, provided it is set out in the deed. Upon the death of a joint tenant, title remains in the surviving joint tenant without further action. You cannot leave joint tenancy property to someone else in your will. It is very important to make sure that all of your real property is titled as you intend it to be.