Why should I have a will drafted?

Constructing a last will and testament is an integral part in planning the distribution of an individual’s estate after their death. In the State of North Carolina, wills give the testator (the person writing the will) the chance to make sure that their spouse, children, other family members, and even pets are taken care of after they die. While embarking on the process of constructing a will, it is crucial that a testator knows and understands the laws associated with wills in their state. Otherwise, the chances of their will being invalid increase. An estate planning  attorney is an invaluable tool in the process of constructing a will because they can use their advice and experience to ensure that a will is valid. This article will explore, North Carolina laws regarding wills, the effects of dying with a will and dying intestate, and the different types of wills in North Carolina.

North Carolina Laws Regarding Wills
Every state has its own specific statues when it comes to wills. A will that fails to adhere to North Carolina’s statues are generally considered to be void, making the state dispose of the testator’s property according to the rules of inheritance. This gives the property to the testator’s most immediate kin regardless of the testator’s wishes. For this reason, it is ill advised to simply assume that a will is valid, an attorney can assist an individual in the process of ensuring that their will adheres to North Carolina’s standards. Below are list of laws regarding North Carolina wills:

• Signatures: A testator should sign in the presence of two witnesses and if a testator is incapable of signing one of the witnesses can sign for them. Witnesses must sign in the presence of the testator but not necessarily in the presence of each other. If one of the witnesses is also a beneficiary, then three witnesses are needed because two of them must be disinterested (not named in the will).

 

• Age: An individual must be eighteen years old and of a “sound mind” to leave a valid will. A sound mind means that a person must be competent enough to understand the purpose of the will. If an individual is under the age of eighteen but are married, then they are permitted to make a will.

 

• Disinheritance: North Carolina does not allow an individual to disinherit a spouse as long as they are currently married and co-habitating. However, if an individual is divorced after the will is signed and they pass away before they can make a new will, any provisions relating to their ex-spouse and any promises they made to them are extinguished and void. This rule also applies if an individual is separated as long as they specifically state in their will that that is their intent. Additionally, an individual can disinherit their children as long as they specifically name their children as inheritance in their will.

 

• Probate Court: Before the terms of North Carolina last will and testament can be effectuated, the will must be proven in probate court. Probate court is the court-supervised process of distributing the estate of a deceased person.

Effects of Dying with a Will vs Dying Instate
The most important purpose a testator can use a will for is to express how assets such as homes, vehicles, business holdings, and bank accounts should be divided upon the testator’s death. A North Carolina will and testament can also allow an individual to name someone as the legal guardian of their children. In addition to testamentary trust (trust that provides a benefit for people), North Carolina law specifically allows for the creation of trust for the care of animals that are alive during the testator’s lifetime (referred to as pet trust). Such a trust terminates upon the death of the last surviving animal covered by the trust.

A person who dies without a will is called intestate, which will invoke the laws of intestacy. In this state, the shares in real and personal property that go to a surviving spouse also depend on whether or not there are also surviving children or parents. If there are no surviving children or living spouse, then intestacy laws grant shares of the decedent’s closets relative.

Types of Wills in North Carolina
Listed below are a list of wills that are recognized in North Carolina:

• Attested Wills: This is known as the “standard” will. These wills are written by the testator and signed before two competent witnesses. Attested wills are often typed or word-processed for clarity purposes. Finally, the testator must be eighteen or older and of a sound mind for an attested to be legal.

 

• Holographic Wills: A holographic will is a handwritten will by the testator. This will does not require witnesses. North Carolina allows holographic wills written in the hand of another person besides the testator, provided that the testator wrote their name in their own handwriting in or on the will, and also signed it. The testator can name a guardian for his minor children, name them as beneficiaries, and describe how their assets are to be managed until the children come of age.

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• Nuncupative Wills: Nuncupative wills are oral wills made by a person who, suffers a “last sickness” from which they do not survive, or that they are in immediate danger of dying from some other cause. The testator must make the will before two competent witnesses whom they have asked to bear witness.