In the state of North Carolina, when a person dies, their will goes through a legal process called probate, by which the court determines whether or not the will is valid. If you’re writing your will, you may wonder, “Do wills have to be probated?” Find out how to write your legally valid last wishes. We will also look at when a court probates (validates) a will and see when a court may consider a will invalid.
Do Wills Have to be Probated?
When it comes to estate planning in North Carolina, writing a valid will is one of the most important steps you can take. A will ensures that your money and property distribute according to your wishes after your death. Most wills created with an estate planning and probate attorney are valid according to state law.
But what happens if your will is deemed invalid by the court?
Any person of sound mind, and 18 years of age or over, may make a will in our state. There are three types of valid wills in North Carolina, including:
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.
Holographic Will
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
Nuncupative 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.
While these types of wills are valid, some are easier for others to contest or argue as invalid in a probate court.
Next, let’s look at what happened to Princess Diana’s “letter of wishes.”
When a Holographic Will Faces a Contestation
Princess Diana of Wales was one of the world’s most loved celebrities – and one of the richest. Her tragic death in 1997 was world news. The majority of her estate, reportedly worth $40 million at her death, was divided between Prince William and Prince Harry in her estate plan.
However, she also wrote a “letter of wishes” that directed her executors to give a number of personal effects to her godchildren. Those executors, her mother and her sister, went to court and had it ruled unenforceable.
State laws vary on whether holographic wills. Some of the issues which frequently arise concerning holographic wills include the following:
Validity
Did the decedent write the will? In contested cases, attorneys may call in handwriting experts to determine validity.
Undue Influence
Was the decedent unduly influenced to create the will? That’s difficult to prove – or disprove – as there is no need for witnesses.
Intentions
Does the will accurately describe the decedent’s intentions? Again, without witnesses (creating a legally upstanding last will and testament generally requires two), that becomes difficult to answer.
Don’t Subject Your Wishes to Scrutiny
So the crucial question is:
If you believe no one will contest your holographic will, should you skip the lawyers and write your own will? The answer is NO.
The whole purpose of creating a document, any document, which spells out your intentions upon death, is to make it enforceable.
Although written and attested last will and testaments still go through probate, they provide the court with a signed and witnessed document likely to reflect your intentions.
Holographic wills are less likely to hold up in court and will be subject to a great deal more scrutiny.
The bottom line is that creating a will, a trust, or any other type of estate planning document is easy – when handled by an estate planning attorney.
The process is simple and consists of conversing about your intentions, listing assets, and creating a legal document to carry those intentions out.
Sadly, Princess Diana’s godchildren got nothing. Don’t let someone else decide what you did, or did not, intend.
The Probate Process in North Carolina
Probate works to prove the validity of a person’s will after their death. The court also appoints a personal representative (the executor or administrator of the estate). This person administers the deceased person’s estate and ensures that their money and property transfer to the beneficiaries specified in their will.
If someone dies without a will, this is called dying “intestate.” When someone died intestate, probate lets the court declares:
- Who that person’s heirs are based on intestate laws
- Appoints an administrator who will distribute the person’s money and property
- Lays out how the assets will distribute according to North Carolina intestate laws
Because the probate process can sometimes be expensive and lengthy, and the details of the deceased person’s estate may become part of public court records, many people create an estate plan designed to avoid probate by using a revocable living trust.
Do Wills Have to be Probated?
Yes. In North Carolina, all wills (that do not pour into a trust) must be probated in the county where the decedent resided. The executor of an estate is responsible for filing the will with the court.
A will becomes a public record and can be viewed by creditors or anyone else who wishes to see it. North Carolina gives broad authority to a court-appointed personal representative to manage the estate according to terms outlined in the will.
Probate helps protect a decedent’s assets and ensures that the decedent’s accounts pay debts before distributing assets. It is also an essential part of the legal process that ensures loved ones and previously designated heirs receive what the decedent owned.
Assets That Do Not Pass Through Probate
Most things a person owns are probate assets and require probate court to administer. However, North Carolina law does allow for certain non-probate assets to pass without court interference, such as the following assets:
Real Property Held in Joint Tenancy with Right of Survivorship
Joint tenancy with the right of survivorship is when joint tenants own real property together. When one person dies, the property will transfer ownership. The property will automatically transfer title and go to the surviving partner without probate.
Transferable on death accounts
Many decedents set up transferable-on-death accounts, such as joint bank accounts with the right of survivorship that do not need to go through probate. When the owner dies, ownership automatically transfers to someone else without needing a court order.
Life Insurance Proceeds
Life Insurance policies give proceeds to whoever has the beneficiary designation. The assets do not have to go through probate court, when a judge decides who gets what from an estate.
Retirement Accounts
Retirement Accounts are financial instruments that allow individuals to save money for their retirement, often tax-free. They are typically invested in stocks and do not pass through a will. Instead, they go to the named beneficiary.
A Trust
Assets in a trust do not have to go to probate court. This means a judge does not decide who gets what from the estate. Instead, the people listed in the trust receive assets a trustee administers according to the terms of the trust documents. A trust’s assets skip probate entirely!
Small Estates
In NC, there is a simplified probate process in which an estate worth less than $20,000 for a single person or $30,000 for a couple does not need to pass through probate court. Instead, with the simplified process, the family may file an affidavit requesting no probate proceeding for the transferring of assets.
A qualified estate planning attorney can help you determine which assets do and do not need to face probate.
With careful planning now, you can rest assured knowing that your trustee will carry out your wishes after you have passed away.
Avoid Probate Court
Because probate laws allow for creditors and the general public to see your outstanding debts, your probate assets, your financial accounts, and other facts about a deceased’s estate, it makes sense to avoid probate when possible.
Those who would contest your will for financial gain can come out of the woodwork looking for a payout, especially with very large estates.
You can bypass probate entirely with a properly drafted trust and a pour-over will.
A trust holds your property and assets in a legal framework that prevents it from becoming a probate estate. When a decedent’s property is all contained in trust, the named trustee handles the estate settlement.
Avoiding probate is easy when you also have a pour-over will that automatically adds any assets to your trust that you left out of the trust before death.
Living trusts are just one of many types of trusts that allow a decedent’s estate to avoid probate and the public drama that comes with it!
Our Experienced Estate Planning Legal Team Can Help
At Vail Gardner Law Firm, we can help with all aspects of planning for your estate to avoid probate. We also work with family members who need help sorting out how probate works in North Carolina.
We focus on estate planning and probate matters and have expertise with wills, trusts, durable powers of attorney, health care power of attorney, and more. Our counselors provide helpful advice, answers to your questions, and assistance in navigating the complexities of probate and estate planning.
If you have questions about the probating of wills or need help understanding any of the estate planning or probate processes, please do not hesitate to reach out and consult with one of our experienced attorneys.