Estate dilemma

[FBN2007]

What is the name of your state (only U.S. law)? North Carolina

Does North Carolina law stipulate how much of an estate must be left to a spouse and the decedant's children? Could a person set up their estate so that the wife gets a small percentage and the remaining goes to the grandchildren? Does it matter if the assets were only titled in the decedants name?

 

[FlyingRon]

In North Carolina, a person is free to disinherit children of any age in his will. There's no provision to stop this. There is however, a provision to protect spouses. This means that no matter what the will says, the spouse has claim to half the assets of net estate though there are adjustments (for example it's diminshed by things passing by survivorship rights). If you are a spouse who feels they are affected by this, it would behoove you to have a lawyer involved. There's time limits on making such claims and the computation needs to be done correctly.

Assets that have survivorship rights (such as jointly owned properties(, pass without respect to the will.

Things that have named beneficiaries pass also without respect to the will.

The will applies only to the estate that remains after the debts are settled and property that doesn't transfer by other means.

 

[FBN2007]

The assets of the husband have been placed in an irrevocable trust for the benefit of the grandchildren. The wife is only the beneficiary of a life insurance policy on the husband that is an irrevocable trust. However, my understanding is that the life insurance is not even part of his estate since it is in the irrevocable trust. The husband is still alive. How could the wife proceed to recover the assets that were placed in the irrevocable trust without her knowledge? Could a malpractice action be taken against the attorney that set this up?

 

[tranquility]

As to the former, only an attorney with practical experience will be able to help. The malpractice? No. Wife is not in privity with the attorney.

 

[anteater]

Wife is not in privity with the attorney.

I love it when Tranq talks dirty like that.

Determining that a spouse can claim an elective share is fairly easy. Determining what that elective share should be is not so simple.

http://law.onecle.com/north-carolina/30-surviving-spouses/index.html

 

[FlyingRon]

Unless the policy has some value other than payout on death, it is meaningless whether it's in a trust or not. Presumably the trust is NOT the beneficiary but the spouse is. The insurance policy WILL decrease the elective share. Whether property is in a trust or not doesn't much enter into the computations. While a trust avoids having to probate things, it doesn't change the estate size computation here.