I would appreciate some help finding a lawyer in North Carolina / Asheboro/Greensboro area

[DebJ]

to over the phone answer a question about wills. I just did the Google but lawyers scare me.
Last time I had one was 30 years ago at $250 an hour discounted rate.

For now I just need one question answered:

An elderly couple's residence and filed will is in West Virginia.
They sell their house and move to North Carolina and transfer all their funds to North Carolina banks.
One of the dies within a few weeks or months and they have not filed a new will in North Carolina as yet.
Will they be considered intestate?

Information my sister forwarded to me (she's in college taking classes that give her access to law info online,
something called WestlawNext.)
tells me they would. My sister insists the opposite but I'm sure she doesn't know what she is reading. She
keeps sending me stuff about people who are not domiciled in North Carolina but after they move, they WILL
be.

Thanks if anyone knows someone trustworthy to contact.

Also posted in the Lounge.

[SheilaT]

1. Try the nearest branch of

the American Bar Association. They should have a law library and the librarians there may be able to help you. It is not very likely that a lawyer will be willing to answer the question over the phone.

It seems to me that unless North Carolina has a law that specifically says no will from another state is valid in NC, then their WV will should be valid. Otherwise people with multiple residences would have to have a will for each state or place they own a residence in. However, I am not an attorney and nothing I say can be construed as legal advice.

[DebJ]

2. Thanks. My sister already accessed legal info online and it says that North Carolina

and ten other states do not accept wills from other states. My sister kept refusing to look at the 'domicile' factor
and kept saying the WV will would do. That sister has a LOT on her plate right now so that's understandable that she couldn't grasp what I was saying.

By refusing to accept wills from other states, North Carolina gets control of how the assets located in North
Carolina are distributed (and taxed). North Carolina even says that if my parents were to leave some cash behind in WV, that WV must send NC the cash so they can tax and distribute it. I had a feeling it would be that way.


One of my other sister's called her lawyer in Illinois and they said they didn't think it would be valid in North Carolina.
I just called a lawyer in NC who said the same. (But of course she could be looking for business for herself also, so I
like having the validation of the Illinois lawyer.

Thanks for your reply. It looks like my mother won't make it until the end of the year so we needed to get this set up to be resolved ASAP.

[SheilaT]

3. Thanks. I'm frankly appalled that any state

can refuse to accept a valid will from another state. I would have thought that the full faith and credit clause in the Constitution (Article IV, Section 1) would require every state to accept a valid will from any other state.

Assuming everything has been inherited by your mother, move very quickly to get a new will in NC, one that has the provisions that your mother will want. That should be more or less a matter of copying the old will, with whatever changes need to reflect the fact that there's only one living person now, and getting it signed and filed. Simply start calling around to area law firms and ask what they charge for a simple will. Presumably this is a simple one, without any complex trusts or such. Or ask the ABA for a few recommendations and make the phone calls.

[DebJ]

4. Thanks yes very simple.

No real property (if her pending house sale goes through). Just cash, some small life insurance policies.

Things passed from one spouse to the other with whomever passes first, then division among the four
daughters when other one passes.

Mom just won't eat enough; is down to 105 lbs on a 6 ft frame; doctor said either she gains weight now or has less than 4 months left. Dad won't last long without her. She is now his purpose in life; they've been married 60 years this Labor Day if they make it that long, and retired together 25 years. For the last several years, the greatest majority of Dad's time has been occupied with taking care of Mom, who has been in a wheelchair for a long time; totally confined to it the last two years. Dad is a person who was always a workaholic and needs a purpose in life. Without Mom, he's going to fade fast.

On Edit: both my parents are currently alive, both are moving.

[SheilaT]

5. Then that kind of a simple will

where the first to die leaves all to the survivor, then when the second die things are divided equally among the four daughters, should be no more than a couple of hours of law firm time. And almost everything will actually be done by a paralegal. You should be able to find out with a phone call exactly what they will charge. When you go in, have everything in writing as to what you want done.

If all they have is some cash in a bank account, have at least one of the sisters also on the account, either right now as someone who can sign checks, or as one who is paid on death. I'm happily assuming that Sister can be trusted to distribute fairly. It is my understanding that life insurance policies pass outside of the estate, so the only thing to be concerned with there is that the beneficiaries are exactly as desired. If there are things like cars, they could be retitled at this point. Unless that "some cash" is an amount large enough to trigger NC inheritance taxes -- and many states start that at a shockingly low level -- you have nothing really to worry about.

Good for you for paying attention to this need for an updated will. Last year my brother-in-law, my sister's husband, died suddenly and completely unexpectedly from a stroke at the age of 63. I was shocked to learn that despite the fact they'd been married for fourteen years and that this was a second marriage for both of them, they did not have wills. People need wills.

[DebJ]

6. I don't have a will myself, nor does my husband.

Since we have a negative net worth, it doesn't seem worth it. Or affordable either. We started over late in life,
and made two big decisions at the same time in 2008, that with 20-20 hindsight did us in: buying a house at
peak of the market (two years into our marriage, we had been renting) and me incurring debt to return to
college for a teaching degree, graduating the year that teachers were laid off by the thousands. House tanked,
severely under water. No job, but college debt (only about $10k but it's killing us because he had to retire
early two years ago.) Our personal property isn't worth squat and no one would want it either: 1500 history
books and my husband's hobby stuff and old furniture. So it really doesn't matter, except for family pictures
and family history stuff I have accrued over the years.

At least as long as Pa intestate law stays the same, and if he passes first (he has chronic kidney disease but I chain smoke), things should work out fine.

BUT I do need to do an Advanced Directive and that sort of thing. Husband should too but he refuses; he
is too terrified to be able to face things head on.

[Lex]

7. Do you have the link for the info. she found that said NC doesn't

accept Wills from other states? I'm curious about that.

[DebJ]

8. I don't have a link. My sister

currently has access to something called WestlawNext that has statutes etc
printed there. She has access because she is currently taking college courses
that require her to have this reference source for papers etc.

[DebJ]

9. I can look for the statute number though. Give me a minute. n/t

[DebJ]

10. Here is the citation, plus a few quotes from it that I included in my

email to her after I read the citation below.

Item: § 11:13.Probate of foreign wills
Citation: 1 Wiggins Wills & Administration of Estates in N.C. § 11:13 (4th ed.)


This tells me there would be or could easily be problems with a West Virginia will, for the reasons stated below:

1) After sale of the house, and transfer of bank account funds to a North Carolina bank, only personal property would remain to be handled in the will (ie cash, furnishings, etc). There would be no real property, only 'personalty'. So below I only quote only as pertains to personalty.

2) Paragraph (a), lines 1-3: "At common law...the validity of a will of personal property was determined by the law of the testator's domicile at the time of his death. The common law rule has been incorporated into the statutory law of North Carolina." (Meaning that all personal property would come under North Carolina law, presuming that would be their official residence at the time of death.)

3) Paragraph (b) reinforces that in North Carolina, common law would rule, by stating "In addition to North Carolina, there are ten other states that have adopted legislation incorporating the common law rule. However, in a majority of states...." (Meaning that North Carolina and ten other states follow common law rule as listed in Paragraph (a) and statement 2) above, however the majority of other states....such as Illinois where our other sister lives.... would be willing to accept a will properly and legally filed in another state. Just as I expected, North Carolina has its own 'peculiar' way of doing things (peculiar used to mean only 'pertains to', as in, the 'peculiar institution'...which became a double entendre.)

4) Paragraph (c) first explains the Uniform Probate of Foreign Wills act, but at the bottom of the first page, the last three lines make it clear that the Uniform Act does NOT apply: "The provisions of the Uniform Act are contrary to the North Carolina and common law view that domiciliary probate is conclusive as to personalty..."

5) Page 2 of the document you sent expresses the opinion that the Uniform Probate SHOULD be adopted in North Carolina.........so as of the writing of this piece, it was not. Therefore, the common law applies: "a will executed in accordance with the law of the testator's domicile"...which would be North Carolina as soon as that becomes their official residence. If no will is filed in North Carolina, then a legal determination that the deceased passed away intestate could apply, since no will was filed in the testator's domicile at the time of death.

[Lex]

12. If the WV

If the WV Will was "executed in accordance with NC law" which means in NC that the signing requirements were met (testator signed in front of 2 witnesses and all signatures notarized) then the WV Will can pass title to real property. If the Will wasn't executed in accordance with NC law (meaning the signing requirements weren't met per NC law) then it can only pass personal property.

Thus, to pass title to real property located in North Carolina, a foreign will must have been executed in accordance with the North Carolina law; 2 but a will executed in accordance with the law of the testator's domicile is sufficient to pass title to his personal property located within the state

[DebJ]

13. Thanks but my question is this: testator's domicile will now be North Carolina

as soon as the house is sold, (there is an offer) they will move and North Carolina will
be their new domicile.

[Lex]

14. And the answer is

according to what I highlighted, *if* the WV Will was executed in accordance with NC's signing requirements then it meets NC's qualifications for a valid Will i.e., it will work in NC.

[Ms. Toad]

15. If this came from your sister's educational subscription to Westlaw Next -

you might want to have her review her license terms to see whether it allows you to post it here. (I saw the question in ATA, and since I am pretty familiar with Westlaw, I thought I'd encourage you to follow-up on your gut instincts and have your sister check her license.)

(I don't see an independent (non-subscription) source for the text you've excerpted above.)

[DebJ]

16. Thanks. I think better safe than sorry. I have no idea. nt