Social Media & Other Accounts Can Linger After Death

When planning your estate, keep in mind your “digital” property.  We tend to think of our physical assets, such as a home, bank accounts, retirement account and life insurance.  Consider online banking, for instance.  Who has access to that information, including passwords?  What about family photos, social media profiles and similar “assets?”  If you store your family photos on line, who can gain access to them after your death?  Each social media provider has its own set of rules regarding access.  Each on line bank account and investment account is subject to the rules of the company that handles these assets.  Do you know its rules for transfer of ownership?

As a part of a comprehensive estate plan, even one with a basic will, include specific language and directions on how such assets are handled.  Many companies do not recognize a general disposition of assets to include “digital” accounts.  The best way to deal with this is to include a specific reference to these assets, so that an Executor can provide the express language in a will (or trust) to the company and direct the distribution of them to your heirs.  Also consult the terms of your “online” agreement, which may contain express instructions on how to transfer such upon death.

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

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Don’t keep too many secrets

Who knows your “secret” passwords?  A problem we encounter in probate is obtaining access to password protected information on the internet.  If your Executor does not know how to access your online information, it could be lost.  We encounter issues with information on Facebook; password protected investment accounts; on-line access to on-line financial arrangements.  On-line storage of information “in the cloud” can also have access problems.  In some cases there may be significant value lost to one’s heirs from a lack of access to password protected data.  The retrieval process can be quite costly.  Be sure someone trustworthy knows how to access your information.

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

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Day Trip to Ephesus – NC Bar trip to Turkey (2010)

A pleasant ride through the countryside shows us a different aspect of Turkey. The bustle and hustle of Istanbul gives way to rural settings:  fields with hay being mowed for feed; lush groves of citrus fruits, including peaches and apricots; farmers on tractors; field hands picking crops; low mountains with groves of trees and scattered natural plants reminiscent of the pine that once covered much of the landscape. Valued for its rich volcanic soils, one can easily imagine the reasons for so many battles to control the region by ancient peoples.

We enter the ruins from a gate that is not frequented by the large crowds of tourists usually found at this location. With no large cruise ships and tour groups adding to the crowds today, and with local schools not yet finished for the semester, we have a light crowd competing for space. Our guide offers engaging tales of the history of this region; how it was settled early by peoples seeking refuge from conquering tribes from the East.  Although the nearest river waters are now about five miles away, Ephesus was once a port city with thirty five thousand inhabitants, and a total surrounding population, at the heights of its glory, of over two hundred thousand persons.

We enter at the end of a long street framed by columns of stone and paved with slabs of marble still bearing the “trademarks” of the cutters and masons who toiled in this region. The last of the brightly colored poppies in reds, blue flowering plants and small white flowers greet  us with a splash of color and a welcoming appearance.

Ephesus was once the location of a “modern” medical complex. Engraved on stone are remedies and treatments for various ailments, and it was a place where many were treated for wounds of battle, including orthopedic injuries. Our guide notes that gladiators fought at a nearby amphitheater thus giving a good supply of patients for the physicians. We sit in ancient seats carved of marble where the leaders and thinkers of the time gathered to the issues of the day. Merchants would gather nearby to ply their trades, eventually giving rise to a long row of shops lining both sides of the street. Magnificent residences were located here, and even thousands of years later one can see their remains. Down a long street paved in marble is located the remains of tall columns of stone, the Roman bath houses, and a magnificent amphitheater that at one time could seat many thousands of people. It is in use even today, with entertainers including Sting performing in concert with permission of the government.

Many believe that Paul of Christian history was here seeking to spread his beliefs after the death of Jesus. We see the tower of the Harbor Master where it is said that Paul was taken to protect him from angry mobs. Actually walking, sitting and talking where important figures of history once walked and talked among themselves is an unforgettable experience.

We leave the ruins and head to the local town, a pleasant area where we enjoy a late lunch at a local restaurant. We visit a leather goods manufacturing shop, with many beautiful articles and a good crowd shopping for coats, jackets, wallets, bags, belts and clothing. The local shops offer a good selection of souvenirs to temp the wallet.

Pleasantly tired, we board our bus for the trip to the airport, and return on an early evening flight to our hotel in Istanbul. The serene comfort of the countryside gives way once again to the dense urban setting of a city of fifteen million people. Tired but excited with the experiences of the day, we find various restaurants and places in the side streets of Istanbul, in small groups, each enjoying discussions about the contrasts of the city and the countryside, the contrasts of the old and the new, and many memories taken from the day.
- See more at: http://www.ncbar.org/about/communications/news/2010-news-articles/blog-ncba-attorney-exchange-in-turkey#sthash.8ku27v4k.dpuf

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

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WHO CONTROLS YOUR MEMORY?

Do you use online services to help communicate, store important information or photographs, and generally organize your life? I do.  And, most people I know do as well.

Have you ever thought about what happens to all that “stuff” when you die or become incapacitated?  Until recently, I had not given much thought to it.  But, over the last few weeks, I’ve read some articles that got me thinking about it.  These ought to be considerations in formulating our estate plans.

Yes, my estate planning clients are concerned about what happens to their money and the real estate when they die or if they are sapped by insidious cognitive event or disorder.  But, the things that elicit the most concern, particularly to those left behind, are often things of little financial value.  Historically, these have been tangible things.  Usually, they involve something handed down from a previous generation.  Often, however, the things that create concern (and conflict) are photographs and letters – things that are extraordinarily personal in nature.  In our modern world, those personal effects are as often as not stored in digital formats and often online through services such as Snapfish or even Facebook and email.

I think it important to try to ensure that your memories, and those of you, are left in the control of those you love.  A good estate plan can help you do that.

Robert A. Wells

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Questions People Ask – Counselor at Law

Over the past few weeks, the pastor at my church has been doing a series of sermons entitled “Questions People Ask.” One of those questions, big enough for several books, is “Why do bad things happen to good people?”

I’m a lawyer and am less struck with that question than this one: Why do good people do bad things? I see it so often. There’s the family business in which one person feels under-appreciated and under compensated and helps themselves out; the worn-out mother who takes her eye off the road and injures herself and other motorists; the person who wants mama taken care of and is certain the sibling who is doing so is getting more (money, property, love) because they have usurped that caretaker role. I represent people onboth sides of these predicaments. They are often messy because life and relationships are messy.

Lawyers sometimes forget that the title we take is Attorney and Counselor at law. I have no formal psychological training; but, it is important to remember that latter title-Counselor. Like you, lawyers are not perfect and none can (or at least should) promise perfect representation and certainly not perfect outcomes. But, good lawyers will listen and offer advice and the best options we can. The circumstances that bring our clients to us are often life-altering. Our representation will require us and you to make the best of those circumstances and put you on course for the best life possible afterward.

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Legally Speaking

A headline in the ABA Journal recently says “Bilingual Lawyers in Demand.” If you are a non-lawyer reader of this, you might be saying to yourself that all lawyers seem to be bilingual –  Legalese and what the rest of us speak.   Other than my particular dialect of from the sticks “hick,” I do consider myself confined to the singular langauge of English.  (Four years of high school French did not stick and my Spanish immersion CDs have yet to make me fluent enough to advertise my infant-level of proficiency.)

Nevertheless, Legalese is not a language.  If you have legal documents you don’t understand, you need and deserve explanations.  Last week, I had a conference with an estate planning client for whom I prepared a will and some other estate planning documents a few years ago. The client needed to make some changes because of changes in his life circumstances, but during the conference it became clear that the client needed further explanation of exactly what he had directed through the documents prepared just a few years ago.  I explained.  The client then said “Oh yeah, that’s what’s wanted, but did not understand what was actually written.” If you have documents prepared by a lawyer for you, it is incumbent on you to make sure you understand what you are signing.  Do not sign just because the lawyer has prepared the document and assume that it is correct.  Lawyers are human; even the best of us will make mistakes occasionally.  Working with a lawyer in preparing an estate plan (or prosecuting a divorce action, injury suit, or setting up a business or any of another 1,000 things) has to be a team effort.  Do not allow yourself to be frightened by language we as lawyers use without asking about why. Sometimes the words are simply necessary terms of art.  Sometimes, though, it is just a stilted manner of speaking that has been passed down in innumerable forms that we might be able to say better and more simply.  Be part of your legal team. Ask.

Robert A. Wells
Gabriel, Berry, Weston &  Wells L.L.P.
Attorneys at Law
214 Commerce Place
Greensboro, NC  27401
(877) 361-0529

 

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Power of Attorney in North Carolina

A question that comes up frequently is whether or not a Power of Attorney must be recorded to be valid.  N.C. G.S. 32A-9(b) requires a Power of Attorney to be registered if it is to survive the mental incapacity or incompetence of the person granting the power.  Other statutes control how the POA is indexed after recording (N.C.G.S. 47-115) and what records must be kept when a POA is used (N.C.G.S. 32A-11.)  And if a POA is used to transfer an interest in real estate it must be recorded in the county where the real estate is located(N.C.G.S. 47-28.)  There are quite a few statutes that deal with POA’s and it would be a lengthy discussion to list them all.  Most important for the average person is to record the POA to be sure it is valid once the person is no longer mentally competent.

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

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Husband’s Failure To Disclose Assets Is Basis For Constructive Fraud

In the case of Searcy v. Searcy, the Court of Appeals in a decision filed September 20, 2011, reversed the trial court and found that there was an issue of fact with regard to constructive fraud when the husband failed to disclose the existence of promissory notes for two particular beach lots that were sold during the marriage.  The Court of Appeals found that a fiduciary relationship existed between husband and wife.   A duty to disclose arises where a fiduciary relationship exists between the parties through a transaction.  The relationship of husband and wife creates such a fiduciary duty.  During a marriage, a husband and wife are in a confidential relationship and have a duty to disclose all material facts to one another and a failure to do so constitutes fraud.  However, this fiduciary duty ends when the parties separate and become adversaries negotiating the terms of their separation.  Furthermore, the termination of the fiduciary relationship is firmly established when one or both of the parties is represented by counsel.  However, the mere involvement of an attorney does not automatically end the confidential relationship.  The mere fact of the parties being separated in and of itself is not determinative of the existence of a fiduciary relationship.  When the parties originally divided their assets, the husband failed to disclose the existence of two promissory notes for Lots 17 and 18 and wife never knew that they existed.  The subsequent separation agreement made no mention of notes for Lots 17 and 18. The Court of Appeals found that the fiduciary relationship between husband and wife still existed at the time the Defendant husband first failed to disclose the purchase money notes.  Therefore, wife had a claim for constructive fraud.

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Only Marriage, And Not Same-Sex Domestic Unions, Would Be Recognized In North Carolina Under Proposed North Carolina Constitutional Amendment 1

On the May 2012 North Carolina statewide ballot, a proposed constitutional amendment will appear which would establish marriage as the only domestic legal union between a man and a woman.  This amendment would amend Article 14 of the North Carolina Constitution by adding the following subsection:

“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.  This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

This amendment makes the relationship between a man and a woman the only valid domestic union that will be recognized by the State of North Carolina.  It exempts private parties and presumptively private businesses from its reach.

North Carolina law already defines marriage as “created by consent of a male and female person to be lawfully married”.  N.C.G.S. § 51-1.1 states that marriages whether created by common law, contract or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina.

The United States Code in 1 USC Section 7 defines marriage in the context of any act of congress or any ruling, regulation or interpretation of the various administrative bureaus and agencies in the United States to be a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The constitutional Amendment 1 goes beyond the non-recognition of marriage between persons of the same sex and impacts the extent of the status of a domestic partnership in terms of a wide range of entitlements and benefits.  This amendment could affect custody claims, insurance coverage and retirement benefits, as well as entitlement to other job benefits.  The implications of such an amendment are potentially far-reaching in how it might impact that wide range of benefits  provided by state government, municipal government and the courts.

Doug Berry
Gabriel, Berry, Weston & Wells LLP

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Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

In the case of Kiell v. Kiell (September 5, 2006), the North Carolina Court of Appeals held that a party claiming fraud in the inducement of a collaborative law agreement was not entitled to a jury trial.  Rather, the Court found that the trial court’s obligation was to summarily determine whether there was the existence of a valid agreement.

In the Kiell decision, the parties entered into a collaborative agreement wherein they agreed to settle the issues arising from the dissolution of their marriage and would commit to do so without court intervention.  The collaborative law agreement contained a special provision that if any issues arise about which agreement cannot be reached, that the parties would submit the matter to mediation or binding arbitration under the North Carolina Family Law Arbitration Act.  In spite of this, the Plaintiff filed a complaint in the district court seeking a divorce from bed and board, post-separation support, alimony, attorney’s fees and equitable distribution, and included a claim to rescind and invalidate any purported collaborative law agreement between the parties.

The Plaintiff’s claim for a jury trial, although upheld by the trial court, was denied by the Court of Appeals on the grounds that the determination of the existence of a valid arbitration agreement was a matter for the court and did not require a jury trial under the North Carolina Constitution.  The case was remanded to the trial court for the trial court to summarily determine whether the collaborative law agreement contained a valid arbitration clause in light of the Plaintiff’s claims.

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