Real Estate
Although the particular contract may dictate who the closing attorney is, in North Carolina, it is customary for the buyer to select the closing attorney.
The Due Diligence Period is the time frame in which a buyer has to conduct his/her investigation of the property that they are purchasing. Buyers should negotiate a Due Diligence Period that is long enough to get things like inspections, surveys, etc. done to their satisfaction. Typically, the Buyer has until the end of the Due Diligence Period to terminate the contract in order to receive a refund of their Earnest Money Deposit.
Earnest Money is a negotiated amount held as a deposit by the seller. Typically, Earnest Money is fully refundable to the buyer should the buyer terminate the contract within the Due Diligence Period. This amount is usually credited towards the purchase price due at closing.
The Due Diligence Deposit is a negotiated and non-refundable deposit that a Buyer submits along with their offer to purchase. The higher the Due Diligence Deposit, the more likely that the seller is to accept an offer. While this amount is typically non-refundable (except in the case of a seller breach of contract), this amount is credited towards the purchase price due at closing.
The closing attorney typically represents both the buyer and their lender (if applicable). A good closing attorney will work with the buyer, his/her real estate agent, and the lender to ensure that all lender-required documents are satisfactory and that all sums due and paid at closing are accurate.
Yes, although we will not represent both sides of the same real estate transaction, we can assist sellers should they request it. Typically, the seller in a real estate transaction can have an attorney of their choosing create the necessary seller documents (the Deed, Lien Waiver, & Non-Foreign Affidavit) for closing. It is customary in North Carolina for the closing attorney to provide these for the seller, should the seller not want to get their attorney involved.
Estate Planning
The simplest way to address your estate plan is to execute a Last Will and Testament, Power of Attorney (“POA”), Health Care Power of Attorney (“HCPOA”), and Advanced Healthcare Directive (sometimes called a “living will”). These documents, in concert with one another help ensure that your final wishes are followed in regards to the event of your death or incapacity. Your Will must be probated with the Clerk of Superior Court to affect your wishes. The other documents kick in in the event of your incapacity and can grant or limit the powers of your named agent.
Probate is the legal process necessary to distribute one’s property after they pass away (the “decedent”). Probate is opened with the Clerk of Superior Court in the county that the decedent resided in at the time of their death.
- $120.00 to open the estate.
- ~$250.00 to run notice to creditors (depending on the publisher).
- .4% the value of probate assets are paid to the county (maximum of $6,000.00 per estate).
- $1,200-$10,000 for attorney’s fees (depending on the attorney and the complexity of the estate).
Yes, probate can be avoided with the assistance of a careful and skilled estate planning attorney. The best method would be to own one’s assets through a Revocable Trust or Irrevocable Trust.
In the estate planning context, a Trust is the legal arrangement where a person (the “grantor” or “settlor”) transfers his/her assets to a trustee to hold and manage on behalf of the grantor’s beneficiaries. The Trust agreement dictates who the trustee is and how they are to manage the trust assets and distribute to the named beneficiaries.
- With a Revocable Trust, the grantor typically serves as trustee during their lifetime. As such, the trust can be amended at any time during the grantor’s lifetime and the trust assets can be freely accessed by the grantor/trustee. The primary benefit of a Revocable Trust is probate avoidance, which can have many benefits to one’s beneficiaries. We would be delighted to speak to you regarding these benefits.
- With an Irrevocable Trust, the grantor does not serve as the trustee. An Irrevocable Trust typically cannot be amended and the assets of the Irrevocable Trust are not freely accessible by the grantor. Therefore, selection of the right trustee is paramount. Irrevocable Trusts avoid probate, insulate the grantor’s assets from creditors, convey estate tax benefits, and help the grantor qualify for Medicaid benefits should they need long-term end of life care.
Yes, the cost of probate alone make it more economical to set up a Revocable Trust. Balancing with the hassle that the decedent’s loved ones must go through to probate an estate an Irrevocable Trust is the preferred method of estate planning for most clients.
While Irrevocable Trusts come with additional benefits vs. its counterpart, it also comes with additional tax filing requirements together with a higher fee to set up. Therefore, depending on the client’s needs, an Irrevocable Trust might not be the best option.
- For Revocable Trusts, the initial trustee is typically the grantor.
- For Irrevocable Trusts, the trustee should be a trusted family member or friend that also has the financial know-how to administer the terms of the trust. Because of the nature of this arrangement, the grantor should think long and hard about who to select as trustee for an Irrevocable Trust.
Leases
Absolutely. While a written lease agreement is not required by North Carolina state law, a Landlord would be a fool to proceed without one. The lease agreement determines the terms of the agreement (payment amounts/frequency, lease term, events of breach, eviction and termination, allocation of liability, etc.). Even if one allows a non-dependent family member to stay in property that they own, lease agreements are essential in determining each parties rights. North Carolina courts are loath to evict without evidence of a written lease agreement.
Yes. Our lease attorneys have extensive experience in both residential and commercial leases. While residential leases are fairly straight forward to an experienced attorney, commercial leases are typically far more complex. We handle anything from a commercial lease agreements for a retail store front to intensive commercial lease agreements for supply distributors.
Corporations
Yes, a large part of our practice is creating each of these corporate entities. We draft the documents necessary to create the company and register it with the North Carolina Secretary of State. We also draft the controlling corporate documents for LLC’s, Partnerships, and Corporations.
An LLC (Limited Liability Company) is the ultimate form of ownership for the majority of business ventures. An LLC is created by the filing of Articles of Organization with the NC Secretary of State. LLC’s are either operated by the LLC’s members, or by its managers. An LLC is governed by its Operating Agreement, which determines, among other things: who owns the LLC, how much each member owns, how proceeds are distributed, the transferability of LLC membership, and events and methods of membership termination. LLC’s insulate the individual members from liability against the LLC (i.e., a plaintiff could only obtain a judgment against the assets of the LLC, and not the assets of its individual members). As such, LLC’s are highly recommended for landlords, business owners, and companies with a limited amount of owners.
Corporations offer liability protection to Shareholders, but also come with tax drawbacks. Therefore, a corporation should only be considered for companies numerous individual owners (shareholders). Shareholders are only liable up the amount of their ownership in the corporation (“shares”). Corporations are taxed at the corporate level, with shareholders being taxed individually when they receive dividends or sell their shares. Corporations are created by Articles of Incorporation and governed by the corporation’s Bylaws.
While other forms of corporate ownership come with liability protection for its owners, a Partnership does not. Therefore, Partnerships are only encouraged where the individual partners are LLC’s or Corporations. That being said, we can create Partnerships where a client wants to keep things simple.
While these are not absolutely necessary, they are highly recommended to determine the amount of ownership that each owner has, how funds are distributed, how owners can be terminated, and other reasons too numerous to list. Bylaws (for Corporations) and Operating Agreements (for LLC’s) are required should the corporation enter into a moderately complex real estate transaction or should they require financing.
