When considering the future, two of the most significant legal documents you can prepare are wills and living wills. These documents serve distinct purposes: a will outlines your wishes regarding your estate after your passing, while a living will expresses your preferences for medical treatment if you can’t communicate those decisions yourself.

In North Carolina, these estate planning documents ensure your wishes are honored and legally recognized.

Understanding Wills

A will, often referred to as a “last will and testament,” is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. In North Carolina, the statutes governing the creation and execution of wills are clear and detailed. A last will is an essential part of any estate plan.

Legal Requirements for a Valid Will in NC

According to North Carolina General Statutes (N.C.G.S.) § 31-3.3, any person may make a will if they are:

• Of sound mind and 18 years of age or older, or
• Under 18 and lawfully married or have been lawfully emancipated

The will must be in writing, and you must sign it. An alternative if you can’t sign is to have another person sign in your presence and at your direction.

Furthermore, it must be witnessed by at least two competent witnesses, who also sign the will in the presence of the testator (N.C.G.S. § 31-3.3).

What Can Be Included in a Will

In North Carolina, you can include various property types in your will, including:

• Real estate
• Bank accounts
• Securities
• Personal property

You can also designate guardians for minor children and make charitable contributions through your will.

The Role of an Executor and the Probate Process

The executor, whom you name in your will, is responsible for carrying out your wishes as stated in the will. The court process that settles your estate is known as probate. The Clerk of the Superior Court in the county where you lived at the time of your death oversees the probate court process. (N.C.G.S. § 28A-2-4)

A few of the executor’s duties include:

• Inventory of assets
• Gathering assets
• Paying debts and taxes
• Distributing the remaining property as the will directs

Common Misconceptions About Wills

Many believe that wills are only for the wealthy or the elderly.

However, wills are crucial for having a say in what happens to property after a person’s death, regardless of the estate’s size. In addition, if you have children and want to have a say about what happens to them if you die, you need a will.

Another common misconception is that wills can distribute property in any manner, but certain restrictions apply, such as the elective share that a surviving spouse is entitled to claim (N.C.G.S. § 30-3.1).

In the next sections, we will delve into living wills, compare them with last wills and testaments, and guide you through creating these essential documents.

Understanding Living Wills

A living will is a legal document that outlines your wishes regarding medical treatment in cases where you can’t express your wishes and may be dying. If you become incapacitated and unable to express informed consent, your living will is a type of advance directive that lays out your desires for life-sustaining treatment.

Legal Requirements for a Living Will to be Valid in NC

Under North Carolina law, any person of sound mind who is 18 years of age or older, or a person under 18 who is or has been married, or who is an emancipated minor, may execute a living will. (N.C.G.S. § 90-321)

The document must be in writing and you must sign it in the presence of two qualified witnesses. You must also acknowledge your living will before a notary public. (N.C.G.S. § 90-321)

Scenarios Where a Living Will is Applicable

The living will comes into effect when you cannot make or communicate medical care decisions due to incapacity and if you are either:

• In a terminally ill condition, which is an incurable or irreversible and will result in death within a relatively short period of time
• In a state of permanent unconsciousness, which is a condition where you are not aware of yourself or your environment and in which you show no behavioral response to your environment
• Suffering from advanced dementia or any other condition which results in the substantial loss of cognitive ability and that loss, in the opinion of a healthcare provider, is not reversible. (N.C.G.S. § 90-320)

The Importance of a Healthcare Power of Attorney in Conjunction with a Living Will

In addition to a living will, North Carolina residents may also consider executing a healthcare power of attorney (HCPOA). (N.C.G.S. § 32A-25.1) This document lets you appoint a person to make healthcare decisions on your behalf if you cannot do so.

While a living will provides instructions for specific scenarios, an HCPOA appoints a person you trust (your “agent”) to make various healthcare decisions for unforeseen circumstances.

Addressing Common Questions About Living Wills

Many people wonder if a living will is necessary. It can seem that talking about your wishes with family members is enough. While such conversations with loved ones are important, a living will provides a legally binding directive to medical professionals and relieves family members from making difficult decisions during stressful times.

Your living will also helps prevent any family member disputes about what you would have wanted.

The following sections will explore the differences between wills and living wills. With a clear understanding of both wills and living wills, you can take proactive steps to ensure others honor your wishes in any situation.

Comparing Wills and Living Wills

While both wills and living wills are essential components of a comprehensive estate plan, they serve different functions.

Legal Protections Provided by Each Document

A will is a legal instrument that allows you to distribute your property after your death and make other important decisions, such as appointing a guardian for minor children. This document only takes effect upon your death and is subject to probate proceedings. (N.C.G.S. § 31-1)

On the other hand, a living will is an advance directive for natural death. It allows you to state your wishes concerning any end-of-life care or life-prolonging measures. Knowing your plans matters when facing a terminal and incurable illness or a persistent vegetative state.

The living will works before death and comes into effect only if you are incapacitated and unable to communicate your healthcare decisions.

The Impact of Not Having These Documents in Place

Without a will, the state of North Carolina determines how to distribute your assets after your death. The court follows intestacy laws. This may not always align with your personal wishes and can lead to unintended consequences for the distribution of your estate. (N.C.G.S. § 29-14)

Similarly, if you do not have a living will, others will make decisions about your healthcare without your input. Those who may make medical decisions for you include family members or healthcare providers. They may make decisions that don’t reflect your true wishes.A lack of direction also places an emotional burden on your loved ones.

Next, we will discuss the importance of legal counsel in drafting these documents. We’ll see how to ensure regular updates concurrent with changes in your life or the law.

The Role of Legal Counsel in Drafting Legal Documents

While it is possible to draft a will and living will on your own, consulting with an attorney can ensure that the documents comply with North Carolina law and truly reflect your wishes.

An attorney can also help navigate complex situations, such as blended families, business assets, real property ownership, or if you have sizable wealth.

Ensuring Your Documents Are Legally Binding

To ensure a legally binding will and living will, follow all statutory requirements and consider a review by a legal professional. Make sure to provide copies to your executor, healthcare agent, and family members.

Regularly Review and Update Your Documents

Life changes such as marriage, divorce, the birth of a child, or a significant change in assets should prompt a review. It often makes sense to update your will and living will every few years. This ensures that the documents remain accurate and reflect your current wishes.

By understanding the importance of wills and living wills, you can make informed decisions about your estate and healthcare.

Vail Gardner Law Can Help

At Vail Gardner Law, our legal team works diligently to provide comprehensive estate planning services tailored to your unique needs. Our attorneys are well-versed in state statutes for wills and living wills, ensuring that every document we help prepare accurately reflects your wishes.

Whether you want to draft a will or establish a living will, our team has the knowledge and experience to assist you. We guide our clients through every step of the estate planning process, from initial consultation to the finalization of documents. Our goal is to provide peace of mind by ensuring that your estate plan is clear, legally binding, and effectively communicates your intentions.

At Vail Gardner Law, we also emphasize the impact life changes can make on your estate plan. We encourage regular reviews of your documents to ensure they remain up-to-date with any changes in your life circumstances or the law.

We build long-term relationships with our clients, offering ongoing support and advice as your legal needs evolve over time.

Contact us at Vail Gardner Law to schedule a consultation. Begin securing your legacy and confidently expressing your healthcare wishes. Let us help you plan for tomorrow today.