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Gregory Herman-Giddens

Gregory Herman-Giddens’s Answers

469 total


  • What are the rules for RMD on an IRA in the year of the IRA holders death?

    My mother, 80, is the beneficiary of my dad's IRA. He died this year at age 84. The IRA is currently frozen as the will goes through probate. Only half of the RMD was dispersed in 2015. What are the tax implications for not taking the whole disbur...

    Gregory’s Answer

    Your mother, as the beneficiary, can take the remainder of your father's RMD this year and there will be no penalty. The IRA should not be "frozen" as it is not covered by the will and not a probate asset. Your mother as beneficiary has control over the account.

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  • Is it possible to assign an attorney in NC to distribute my remaining assets when I die ? If so, would it be very costly ?

    I only have two remaining family members who I am estranged from. I do not wish to burden friends, I have a will.

    Gregory’s Answer

    In North Carolina attorneys as executors are generally allowed to collect a commission (maximum of five percent of assets, more likely limited to about three percent by the Clerk of Court) and attorneys fees. A local estate planning attorney should be able to give you an estimate of the costs for your estate. Use of a revocable living trust can reduce costs.

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  • Asset Protection question

    Good morning! Do estate planning attorney's do asset protection? What are the main benefits from this versus regular estate planning? If I choose asset protection, can those type of set ups allow for beneficiaries and avoid probate? Thank you!

    Gregory’s Answer

    Asset protection planning overlaps with estate planning to a certain degree, and some estate planning attorneys also do asset protection planning. Asset protection focuses on titling assets in favorable ways, creating trusts and limited liability companies in order to protect assets from creditors, divorces, etc. during one's life and for family members after one's death. Probate avoidance can easily be achieved.

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  • If a will does not have a declarations for a beneficiary who died prior to the will holder does it pay to the estate of the bene

    My grandmothers will equally divides her estate between my aunt and my mother. My mother died recently and the will has no declarations in the event that my mother or aunt dies prior to my grandmother. So, does it all pay to my aunt now or do...

    Gregory’s Answer

    Many states, including NC, have a law called an "anti-lapse" statute, which provides that if a beneficiary named in a will dies prior to the testator (the person who made the will), and that beneficiary would have inherited from the testator without a will, the deceased beneficiary's descendants (who are also the descendants of the testator) will receive the deceased beneficiary share. They may be the case here, unless the will provides otherwise. However, it would be best for your grandmother to update her will to ensure that her intentions are clear.

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  • My wife and I have a Revocable Living Trust. Each of our three children will share 1/3 of the estate.

    I want to change the percentage that each will receive with a breakdown of 4/9, 4/9 and 1/9. Could I simply pencil in the change and initial it or do I need an attorney to change it. (A few years ago our Trust and Estate Firm dropped us because th...

    Gregory’s Answer

    It is also a good idea to have an attorney review all of your estate planning documents to see if changes in the law make updates advisable, particularly since it has been many years since your documents were prepared. This could be done in conjunction with these changes you want to make.

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  • How do I put a property deed that has me listed as JTWROS in my name when the lead owner passes?

    The lead owner was my mother, who has passed. I would also like to put the mortgage in my name. How would I do that?

    Gregory’s Answer

    Under the federal Garn-St. German Act, you are not required to either pay off the mortgage or refinance the property, although you may choose to do if you think it is advantageous for any reason.

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  • Gift Taxes

    My wife and I want to gift my parents $100,000 for a Florida home. We believe that $56,000 of our joint gift would not be subject to gift tax . My question is if the $44,000 balance is subject to a gift tax or is the gift tax avoided by the implem...

    Gregory’s Answer

    It's great to be in a position to be able to help one's parents. You and your wife will each be required to required to file a gift tax return reporting a $25,000 gift to each of them, $14,000 of which will be covered by the annual exclusion. The remaining $11,000 (per person) will use up part of your $5.43 million (2015) gift and estate tax exemption. No tax will be due, but I advise having an experienced professional prepare the returns.

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  • What is N.C. law on proceeds from life insurance policies to a designated beneficiary if a will states money to be split?

    Will states that proceeds from life insurance that are paid to a designated beneficiary be split between surviving children. Does the money have to be split according to the will or not? If not, are there any legal steps I can take to make benefic...

    Gregory’s Answer

    The beneficiary designation for the life insurance controls over the terms of the will, so legally the funds will be belong to the beneficiary. You may be able to make the beneficiary designation match what the will says in terms of who gets what, particularly if it's just and even split or percentages among a few people. You can also have the life insurance paid to your estate, but I do not recommend that as it will increase court fees, open the proceeds to payment of debts and expenses, and delay distribution to the beneficiaries. In some cases the use of a trust is the best option.

    Please consult with an estate planning attorney, who can guide you on the best method of planning based on your situation.

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  • Dad died and willed my Mom 1/7th of a condo in Florida. Then my Mom died in NC. Do I have to probate her will in NC AND FL?

    Dad owned a condo in FL. He died in 4/2103 and his will left his 6 children and his wife (our Mom) the condo. I am executor. 8 months later Mom died in 12/2013. My sister is executrix. I am currently probating Dad's will in FL. My probate lawyer...

    Gregory’s Answer

    I know the legal process can be frustrating and expensive, and difficult to deal with after the loss of a loved one. However, it is necessary to probate your mother's will in Florida, although since it appears that the value of your mother's interest in the condo is less than $75,000, Summary Administration (rather than a full probate proceeding) can be used. $1,500-$2,500 is not unreasonable for Summary Administration, particularly if the $2,500 includes the court fee of about $350. Full probate would be more expensive.

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  • Is a protector of a trust recognized in the state of Florida?

    I read in legal zoom that as of 2012, it was only recognized in a few states but not Florida. It reads as follows below in Legal Zoom: Trust Protector In addition to the terms of the trust agreement itself, another safeguard against a rogue...

    Gregory’s Answer

    The term "Trust Protector" is not used in the Florida Trust Code, but trust protectors can be and are used in Florida trusts, and certain powers have been sanctioned in the case Minassian v. Rachins, — So.3d —-, 2014 WL 6775269 (Fla. 4th DCA December 03, 2014.

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