Creating A Will In North Carolina
What is a Will?
Your will (also known as “last will and testament”) is a legally binding document that will transfer your property and assets to surviving family members and friends after your death, according to your specific wishes. The people you name as recipients of your assets are called “beneficiaries.” In the context of a will, your beneficiaries only obtain the specified assets upon your death, never before.
While you are alive, you can change your will at any time. However, you must make sure you do so in a legally valid way if you want it to have force after your death.
The estate planning process has several moving parts, and a will is simply one of them. You can successfully navigate the process with the help of an experienced, knowledgeable estate planning attorney. If you’d like to learn more about the different aspects of estate planning in North Carolina, reach out to our friendly team of experts at McCollum Law today.
What Does a Will Allow You to Do?
In the vast majority of cases, the primary purpose of a will is to protect your family’s inheritance, and make sure that your wealth is distributed according to your wishes. In your will, you can:
- Transfer your assets to certain people, or even organizations, upon your death
- Name a personal guardian to care for your surviving minor children
- Name a trustee (someone to manage any property or assets that you leave to your minor children)
- Appoint an executor (someone to carry out the terms of your will)
What Will Happen If You Die Without a Will?
If you die without a will in the state of North Carolina, then “intestacy” laws will take over. These intestacy laws generally give your property to your closest relatives, starting with your spouse, your children, your grandchildren, and your parents, in that order.
If none of your close relatives are still alive, then the intestacy court will search for more distant relatives, such as aunts, uncles, nieces, nephews, and cousins. If no living relatives can be found, then the state will take control of your property.
Read more: How does intestate succession work in NC?
What are the Different Types of Wills in North Carolina?
In North Carolina, valid wills fall into two basic categories: attested and unattested. The basic difference between these two categories is that attested wills contain written signatures by at least two competent witnesses, whereas unattested wills do not.
In order for a written will to be considered legally binding, it usually must meet three important criteria:
- The will has to be in writing.
- The will maker must sign the will him or herself, and not under any duress or coercion. (Alternately, another person may sign the will for the will maker, as long as this is done by request of the will maker, and in front of the will maker and witnesses.)
- The will must be attested, or confirmed, by two competent witnesses. These witnesses must have either personally seen the will maker sign the will (the preferred option), or received confirmation from the will maker after the fact.
Attested wills can also become “self-proven” wills at any time during or after the will’s creation. To make this happen, the will maker must acknowledge the will before an authorized officer of the court, and produce affidavits from the attesting witnesses.
If the will is not “self-proving,” then during the probate process (in other words, the process through which the will is officially proved to be valid) the court may have to locate the attesting witnesses and have them present their testimony that the will is in fact valid.
Having a traditional attested will is by far the best option to protect your family and ensure that your wishes are carried out. However, under North Carolina law there are two types of unattested wills that may also be considered legally binding if certain conditions are met. These are holographic and nuncupative wills.
A holographic will is also a written will. However, a holographic will does not contain the signatures of two competent witnesses. In order for this type of will to be considered valid it must meet the following requirements:
- The entire document must be written solely in the will maker’s handwriting.
- The will maker’s name must be included in the document, either at the end as a signature, above the will as a superscription, or somewhere within the contents of the will itself.
- The holographic will must be found in a “safe place” among the will maker’s possessions after his or her death. This may be among the will maker’s important documents, in a safe deposit box, or in the possession of a trusted friend, attorney’s office, or corporation.
On the other hand, nuncupative wills are orally transmitted wills. They are made in front of witnesses, but are not written down on paper. For a nuncupative will to be considered legally binding in North Carolina, it must meet these requirements:
- The will is made by someone who is extremely sick, and/or is near death.
- If the will maker survives this period of peril, then the will that was made completely loses its force.
- At least two competent witnesses must be present at the same time to hear the contents of the nuncupative will. The will maker must clearly request these persons to act as witnesses for his or her oral will.
Should You Make a Joint Will If You are Married?
In many cases, it would not be a good move to make a joint will with your spouse. For one thing, you won’t be able to probate (or officially prove) your joint will separately. Moreover, if one spouse dies first, then it will be more difficult for the surviving spouse to make any changes to the will. It is often best to make separate, individual wills. Of course, you can consult with an estate planning attorney to see which option makes more sense for you.
Is Creating a Will Expensive?
In general, drafting and executing a will is not very costly — even if you enlist the aid of an experienced lawyer to help you navigate the process. Granted, there are many inexpensive services online that can help you to create a will. However, if you use one of these services you run the risk of making an invalid will. If you want peace of mind that your wishes will be carried out after your death, it’s best to have an experienced estate planning attorney in your corner.
Contact Our Cary NC Will Creation Attorneys
If you’d like to learn more about the process of making a valid will in North Carolina, reach out to our friendly, knowledgeable team at McCollum Law today to schedule a consultation. We’d be happy to help!