Last Will and testament

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Let’s start a conversation about your legacy. Reach out to us today to schedule a consultation and take a proactive step towards peace of mind.

With Vail Gardner Law by your side, create a Last Will and Testament that not only secures your assets but also tells the story of your values and dreams. It’s time to protect what matters most and ensure your legacy lives on, just as you envision it.

Get in touch today to protect your loved ones and ensure your wishes are honored.

At Vail Gardner Law, we’re not just about legal documents; we’re about understanding your story and ensuring it’s honored for generations to come.

Crafting a Last Will and Testament is more than a legal duty—it’s a heartfelt act of love, ensuring the people and causes you care about are protected and cherished.

Whether you’re balancing a young family and career, or a single or older adult thinking about your legacy, we’re here to guide you with empathy, experience, and a touch of warmth.

We know that life’s journey is filled with unique stories and challenges. That’s why our approach is tailored to meet you where you are, offering personalized advice that resonates with your individual needs and aspirations.

Our team is dedicated to making the process of securing your legacy as seamless and meaningful as possible, ensuring your final wishes are articulated with clarity and legal strength.


What are the legal requirements for a will to be valid in North Carolina?

In North Carolina, for a Last Will and Testament to be considered valid, it must meet specific legal requirements as outlined in the North Carolina General Statutes. These requirements include:

1. Age and Capacity: The person making the will (testator) must be at least 18 years old and of sound mind, meaning they understand the nature of their actions, the extent of their property, and how they are disposing of their assets.

2. Written Document: The will must be in writing. North Carolina recognizes both typed (formal) wills and, in certain circumstances, handwritten (holographic) wills.

3. Signature: The testator must sign the will or acknowledge their signature on the will in the presence of two competent witnesses. If the testator is unable to sign the will, another person can sign on the testator’s behalf in the testator’s presence and at the testator’s direction.

4. Witnesses: There must be at least two competent witnesses who observe the testator’s signing or acknowledgment of the will. These witnesses must also sign the will themselves, attesting to the testator’s capacity and voluntary signing of the document. The witnesses should be disinterested parties, meaning they do not stand to inherit under the will, to avoid potential challenges to the will’s validity.

5. Voluntary Act: The creation and signing of the will must be a voluntary act by the testator, free from undue influence or duress.

Understanding and adhering to these requirements is crucial for ensuring that a will is legally binding in North Carolina.

While it’s possible to draft a will without legal assistance,  talking with us at Vail Gardner Law can help you avoid common pitfalls and ensure that the will accurately reflects the your wishes and complies with North Carolina law.

Can I change my will? And if so, how often should I update my last will?

Yes, you can always change your last will, up until a point where you no longer have a sound mind. 

Updating your Last Will and Testament is an essential part of having a last will. It’s crucial to update your will whenever you experience significant life changes or adjustments in your preferences for how you wish your estate to be handled.

As a general guideline, reviewing your will every three years or after any major life event is a good practice. This ensures that your estate plan remains aligned with your wishes and life circumstances.

Here are several circumstances that typically prompt a review and possible update:

1. Marital Changes: Getting married, divorced, or remarried can significantly impact how you may want your assets distributed.

2. Birth or Adoption of Children or Grandchildren: The arrival of new family members might prompt you to adjust inheritances or appoint guardians.

3. Death of a Beneficiary or Executor: If someone named in your will passes away, you’ll need to make adjustments to reflect this change.

4. Significant Changes in Assets: Acquiring or losing significant assets (like buying a house or selling a business) may require adjustments in your will to ensure your estate plan reflects your current financial situation.

5. Relocation to a Different State: Laws affecting wills vary by state. If you move, it’s wise to review your will to ensure it complies with the laws of your new residence.

6. Changes in Relationships: Changes in your relationships with the people named in your will, such as a fallout or a reconciliation, might lead you to revise your beneficiaries or executors.

7. Legal Changes: Updates to estate laws or tax regulations can affect your estate planning strategies and may necessitate changes to your will.

Consulting with us at Vail Gardner Law can provide you with personalized advice and ensure that any updates to your will are legally sound and effectively reflect your intentions for the future.

Can I name a guardian for my children in a last will?

s, in your Last Will and Testament, you can and should name a guardian for your minor children in the event of your death. This is a crucial step in estate planning that ensures your children are cared for by someone you trust and have chosen personally.

By appointing a guardian in your will, you provide clear instructions about who should take responsibility for your children’s upbringing, welfare, and financial management if you are no longer there to do so.

Naming a guardian helps avoid potential conflicts or court decisions that may not align with your wishes. It’s important to discuss this responsibility with the person or persons you are considering to ensure they are willing and able to take on the role.

Additionally, it’s advisable to name an alternate guardian in case your first choice is unable or unwilling to serve when the time comes.

This decision carries significant weight and should be made with careful consideration of the potential guardian’s values, parenting style, financial stability, and the emotional and physical environment they can provide for your children.

Talk with us at Vail Gardner Law to better understand the legal implications of your choices and ensure that your wishes regarding guardianship are clearly and effectively documented in your will and in compliance with state laws.

We offer a free consultation and have appointments available on your schedule, including weekends and evenings.


What happens if I die without a will?

If you die without a will in North Carolina, your assets will be distributed according to the state’s intestacy laws as outlined in the North Carolina General Statutes.

Intestacy laws are designed to provide a default distribution plan for your estate when you haven’t left instructions in the form of a will. However, they often do not work in ways you might imagine would make sense.

Here’s a simplified overview of how assets are distributed under North Carolina intestacy laws:

1. If you leave a spouse but no children or parents, your spouse inherits everything.

2. If you leave a spouse and children, your spouse receives one-third of your personal property and a life estate (the right to use until death) in one-third of your real property, with the remainder going directly to your children in equal shares.

3. If you leave children but no spouse, your children inherit everything, divided equally among them.

4. If you leave a spouse and parents but no children, your spouse inherits half of your real property and the first $100,000 of your personal property, plus one-half of the remainder of the personal property. The rest goes to your parents.

5. If you have no surviving spouse, children, or parents, the estate goes to your siblings, nieces, and nephews in equal parts.

6. Further removed relatives will inherit in a prescribed order if there are no closer relatives.

Under intestacy laws, the distribution of your assets may not align with your personal wishes and can complicate matters for your loved ones, especially in blended families or if you have specific desires for how your assets should be handled.

Creating a will allows you to dictate exactly how you want your estate divided and can help avoid potential disputes among surviving family members.

Set up your free consultation today to ensure your assets are distributed to your loved ones in the way you desire. We have weekend and evening appointments available and are happy to discuss any questions you may have about creating a last will and testament.


How does creating a Last Will and Testament affect my existing joint accounts and beneficiary designations?

Creating a Last Will and Testament does not directly affect your existing joint accounts and beneficiary designations.

A few types of assets typically pass outside of the will through what’s known as “non-probate” transfers.

Certain assets, such as life insurance policies, retirement accounts (like IRAs and 401(k)s), and some investment accounts, allow you to name beneficiaries who will receive the assets directly upon your death.

These designations override any conflicting instructions you might have in your will. For example, if your will states that your retirement account should go to your child, but you’ve named a sibling as the beneficiary on the account itself, the account will go to your sibling.

These non-probate assets include:

1. Jointly Owned Property with Right of Survivorship: Real estate and other assets owned jointly with the right of survivorship automatically pass to the surviving owner(s) upon the death of one owner, without going through probate.

2. Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Financial accounts that have a designated payable-on-death (POD) beneficiary or investment accounts with a transfer-on-death (TOD) designation bypass probate and go directly to the named beneficiary.

This means that if you and another individual own a bank account jointly with the right of survivorship, the surviving owner automatically becomes the sole owner of the account’s contents when you die, regardless of what your will says.

3. Life Insurance Policies with Named Beneficiaries: Life insurance proceeds are paid directly to the beneficiaries listed on the policy, outside of the probate process.

4. Retirement Accounts: Accounts like IRAs and 401(k)s that have designated beneficiaries are transferred directly to those beneficiaries upon the account holder’s death, avoiding probate.

5. Trust Assets: Assets held in a trust are not subject to probate. The trustee can distribute these assets to the trust beneficiaries according to the terms of the trust, without court involvement.

It’s crucial to regularly review and, if necessary, update your joint account holdings and beneficiary designations to ensure they align with your overall estate planning goals and the instructions in your will.

Changes in life circumstances, such as marriage, divorce, the birth of children, or the death of a named beneficiary, may prompt a need to update these designations.

Creating a comprehensive estate plan involves considering all of your assets, including those that pass by operation of law through joint ownership or beneficiary designations, to ensure a cohesive plan that reflects your wishes.

Get a free consultation with an estate planning attorney at Vail Gardner Law to help you understand how your will interacts with these assets and guide you in making decisions that achieve your estate planning objectives.

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Durham, NC 27705
Telephone: (919) 246-6676

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