Creating a Written Will
One of the most crucial components in any estate plan is a person’s last will and testament. A properly executed North Carolina will gives you, the testator, the opportunity to ensure that your children, spouse, and other loved ones (even pets!) are taken care of in the event that you pass away. In addition to or instead of these bequests, you can also choose to leave your assets or make other gifts to charitable organizations through your will.
Unlike a Living Will and Durable and Health Care Powers of Attorney, which go into effect during a person’s life if they become incapacitated and incapable of making legal, financial or medical decisions, a last will and testament does not go into effect until the event of your death.Do I need a last will and testament?
There is no law that requires you to have a will. Rather, if you die without a last will and testament then the property, accounts and other assets you spent a lifetime earning and accumulating will pass according to North Carolina’s intestacy laws, which govern the distribution of property for people who die without wills. The potential outcomes of intestacy laws frequently do not align with the potential decedent’s wishes, however, which is what makes having a will so important.
One of a will’s greatest benefits is that it affords you the opportunity to choose the personal representative of your estate who will be responsible for carrying out the wishes in your will. This person is referred to as the testator. Without a will, intestacy laws and the courts will dictate how your property is distributed.What is required for a valid written last will and testament?
The basic requirements for a written last will and testament in North Carolina include the following:
- Age: You, the testator, must be at least 18 years old
- Capacity: You must also be of sound mind. If your legal capacity is challenged this can present an issue with the enforcement of your will and it is extremely important that you speak with an attorney experienced in estate law as soon as possible.
- Signature: You must sign the document, make your mark with the intent that it serves as your signature, or have another person sign your name at your direction and in your presence.
- Witnesses: At least two disinterested witnesses must sign the document in your presence after witnessing the signature from above. A beneficiary, or person receiving property in your will, may act as a witness, but this will cause the provisions of your will that benefit that person and/or their spouse to become void unless there are two other disinterested witnesses to sign for that portion of the will.
- Writing: Lastly, and obviously, a written will requires that your wishes be in writing. Handwritten and oral wills can be valid in North Carolina, but they are subject to further strict requirements. It is therefore the standard practice that a “written” will be typed.
As mentioned, an oral (nuncupative) or handwritten (holographic) will can be valid in North Carolina, but they are subject to further strict requirements by state law in order to be recognized by law. You may find further information about these types of wills on our website.
If you or one of your loved ones want to create an estate plan or will, or are engaged in the process of contesting a will, it is extremely important that you consult with an experienced estate law attorney. No matter how great your intent to create a will may be, a written instrument that does not meet the requirements described herein will not be given legal effect. If you go to the trouble of creating a will, it is worth the peace of mind to ensure that it is as proper and enforceable as possible with the guidance of a dedicated attorney. Arnold & Smith, PLLC is a civil and criminal litigation firm in the heart of Charlotte, North Carolina, proudly serving clients across the Queen City, Mecklenburg, Cabarrus, Union, Iredell, Gaston and the surrounding counties. Contact us today for a consultation with one of our experienced estate law attorneys.