After you have written your will, you’ll need to take steps to ensure it’s valid. In North Carolina, there are three types of wills–holographic, nuncupative, and attested written. Each type has specific requirements to be considered valid. In this blog post, we’ll explore how to execute a will in accordance with North Carolina law so your loved ones can carry out your wishes after you’re gone! We’ll also explore ways to make your will airtight and less likely to be contested!
Dying Without a Will (or with an Invalid Will)
Many stars, including Jimi Hendrix, Aretha Franklin, Prince, and Michael Jackson all died without wills, sparking long legal battles among surviving family members.
A will is a foundational estate planning document. However, according to Gallup, only 46 percent of US adults have a will. This number has remained consistent in Gallup polls dating back to 1990.
if a person dies intestate, meaning without a will, the court must follow state laws that control the distribution of a deceased’s assets and the appointment of executors and guardians.
Most people want to make their own decisions about such important matters rather than leaving them to the state. Yet state law will determine what will happen if a person does not have a will when deceased.
The only assets that pass outside of a will in North Carolina include the following non-probate assets:
- Jointly owned property with the right of survivorship passes to co-owners
- Tenancy by the entirety: property owned by married couples passes to surviving spouse on the testator’s death
- Investment accounts pass to named beneficiaries
- IRAs pass to named beneficiaries
- Pensions pass to named beneficiaries
- Life insurance policies pass to named beneficiaries
Creating a basic will does not have to be expensive or time-consuming, so get in touch with an estate planning attorney and get started writing yours!
How the Probate Court Validates a Will
A will—more formally known as a last will and testament—provides instructions about who should receive a person’s money and property after the person’s death and who they would like to care for their dependents.
A basic will should, at the minimum, specify the following:
- Who receives personal assets (e.g., property, bank account balances, investments, business interests, and personal possessions), and in what amount
- An executor or person responsible for making sure that instructions in the will are carried out
- Guardian arrangements for minor children
The Probate Process in North Carolina
When a person passes away, their will goes through a legal process called probate, usually in a probate court located in the county where they lived.
The probate process involves a judge who validates (or executes) the will and assigns the executor (person named in the will) who starts working for the estate under prevailing probate laws:
- Inventory the estate
- Pay creditors and debts
- Filing taxes
- Paying for funeral expenses and often making funeral arrangements
- Distributing assets to beneficiaries, including personal property and other assets
However, it’s really not difficult to write your last will and testament. Working with an estate planning attorney can make it even easier!
How to Execute a Valid and Airtight Will in North Carolina
Your first step is to decide which type of will works best for your situation. In North Carolina, there are the following three types to choose from:
Attested Written Will
An attested written will is signed by you and attested to by at least two competent witnesses. There are three requirements for your attested written will to have validity.
- You must sign the will or have someone else in your presence sign the will for you.
- You must let the attesting witnesses know that the will is yours by signing it in their presence or by acknowledging to them your previous signature.
- The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.
A holographic will must meet these three requirements:
- You must write the entire will in your handwriting (however, if other words or printed matter also exist on the page, it’s not a problem for the validity of your will.)
- You must write your name in your own handwriting
- No witnesses needed for a holographic will
A nuncupative will must meet these requirements for validity in North Carolina:
- You must orally speak your last wishes in your last sickness or in imminent peril of death. You must then not survive your sickness or peril.
- You must declare that this is your last will and testament before two competent witnesses whom you specially request to bear witness to your spoken wishes. Your witnesses must be there with you together when you speak your last will and testament.
Creating a Valid Will and Other Estate Planning Documents
All three types of wills are valid. However, the written attested will is the least likely of the three to face a will contestation or a lawsuit attempting to prove invalidity.
Although we would all like to believe that our family and loved ones will honor our wishes, contests are more common than you might think. Sometimes, a family member does not receive what they thought they would after a loved one dies. They may file a lawsuit alleging that the testator or trust grantor was not mentally competent to create it.
There is a heightened risk of a challenge to your estate planning documents if you:
- Disinherit someone who ordinarily would have received money and property at your death
- Have a diagnosis for a medical condition that will slowly decrease your mental capacity. A court may invalidate documents if you did not have proven mental capacity to sign them.
With a Will Contestation, A Judge Can Declare Your Will Invalid
If your will faces a challenge and is deemed invalid, your money and property may pass intestate. In other words, state law will identify who will inherit based on bloodlines and outdated laws. You may have never chosen the individuals who inherit under intestate law.
However, in a court case for a will contestation, the person challenging your estate plan documents has the burden of proving that you did not have capacity when you signed.
To prevent will contestations and preserve the execution of your last will and testament, take proactive steps to provide evidence of your competence when you created or updated and signed your estate plan documents, including your will.
Get a Doctor’s Evaluation
As close in time to signing your estate planning documents as possible, ask a doctor (preferably your primary doctor or a specialist in cognition such as a neurologist) to evaluate your mental capacity and document their opinion in writing.
An attorney can also provide legal advice to educate the doctor about the standards you need in writing to meet capacity standards for executing your estate planning documents. Your estate planning lawyer can assist your doctor in determining and documenting whether you have a sound mind.
Make a Gift
If you plan to disinherit or provide a proportionally smaller inheritance to a family member than they will expect, consider making a gift. Give this asset to the family member close in time to when you sign your estate planning documents.
If the family member accepts the gift and wants to keep it, they are admitting that you had the capacity to make the gift. If you had mental capacity to make the gift, you more than likely had the capacity to sign your estate planning documents.
This strategy will only work if your state’s rules regarding the capacity needed for making a gift and signing the will or trust that gives away your money and property are the same. If a higher capacity level is needed to sign a will or trust than to make a gift, this strategy will not work for you.
Talk with your North Carolina estate planning attorney if you’re considering this tactic.
Document the Reasons for A Decision
If you are disinheriting a child or other family member or providing an inheritance that may be less than they expect, tell your estate planning attorney the reasons for your decision.
It may also be prudent to write down those reasons and record the names of others you have told about your decision, such as friends or financial advisors.
You can keep a copy of this document with your will, and it may be evidence of the rationale and deliberation underlying your decision. However, it is important that you not list these reasons in your will or trust to avoid further complications during a potential will contest.
Keep Your Will Updated to Reflect Your Wishes
Simply creating a will does not mean you are finished. You may need to update your will from time to time. You may even want to revoke and redraft it entirely.
A will should be updated as life circumstances dictate. Many people change their will when they:
- Get married or divorced
- Have a child or grandchild or adoption in the family
- Accumulate more wealth
- Buy a new property
- Move to another state or country
The willmaker (or testator) might also have a change of heart about beneficiaries or a guardianship arrangement due to a personal falling out or changes in the circumstances of a beneficiary or potential guardian.
Estate planning attorneys generally recommend revisiting—and possibly updating—a will every few years. Even if the testator who created the will has not experienced a major life event, periodic reviews are essential to ensure the will still accurately represents their intentions and the relevant laws.
Executing a New Will
Attorneys used to make amendments to a will using a legal document called a codicil. Executing a codicil usually required that the person creating or changing their will sign the in the presence of at least two witnesses. Codicils worked well before computers. Nowadays, it is easier to create a new will that contains the amended portions.
The American Bar Association also cautions that codicils can lead to confusion or legal challenges if they create ambiguities when read together with the provisions in the original will.
Your estate planning lawyer may advise you that a codicil is not worth the potential problems it can cause and instead recommend that you make a new will. A new will must be properly executed in accordance with state law. In addition, the will should contain language that clearly states the willmaker’s desire to revoke all prior wills.
However, there may be instances in which the will-maker does not want all prior wills revoked (e.g., they may need to have a separate will for property owned in a foreign country).
Need Help Executing Your Will? Talk to an Estate Planning Attorney
At Vail Gardner Law, we help you create estate plans that consider all the assets you own and your final wishes. We work to ensure that your heirs inherit exactly as you provide and that your executor or trustee will fully understand their duties in distributing assets to your beneficiaries.
If you need to update your estate plan, consider new milestones and life directions, or understand changes in state laws, we are ready to help. We look forward to helping you create an updated estate plan that accurately reflects your wishes.
Please get in touch with us if you need assistance executing or updating your will. Our experienced attorneys at Vail Gardner Law can help you prepare for your future and that of your loved ones.