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What is a Last Will and Testament?

A last will, often called a Will, is a legal document that details a person's wishes regarding the distribution of their assets and properties after death. It is a legally binding document created by the testator to share their assets with persons referred to as beneficiaries after death. Usually, the testator appoints an individual, the executor, to oversee the process of distribution of the assets. In addition, a will contains named guardians for minor children.

Per Chapter 31 of the North Carolina General Statutes, the following are the legal requirements for creating a last will in the state:

  • The individual must be 18 and older or legally married to develop the will
  • The person creating the will must be of sound mind
  • The will must be in writing. The state accepts oral will only for persons with terminal illnesses or imminent peril of death.
  • The testator must duly sign the will
  • The will must be signed in the presence of at least two witnesses
  • The witnesses must also sign the document

Last Will and Testament vs Living Will: What’s the difference?

Although the Last Will and Living Wills are important and binding legal documents, they serve different purposes. The last will and testament dictates how an individual wishes to distribute their assets to named beneficiaries after their demise. With a will, the testator must name an executor to oversee the division of the assets. On the converse, a living will is a document that details the kind of medical care a person wishes to receive while alive but incapacitated. It details a person's preference for life-sustaining treatments. Living will become effective when the individual becomes incapacitated.

Who Can Make a Last Will and Testament?

Generally, anyone of legal age residing legally in the state can create a last will. However, minors who are married or emancipated may also create living wills. In addition, the individual making a living will must be of sound mind. They must understand the content of the will and the potential consequence of creating the will. Persons creating living wills must do so of their own free will, not under undue pressure or manipulation.

Why Would You Need a Last Will and Testament in North Carolina?

In North Carolina, drafting a last will is essential for planning one's estate, whether the assets are significant or simple. Establishing a will serves as the template for properly distributing the deceased's assets and properties.

Benefits of having a Last Will and Testament in place

A Last Will explicitly states the desires of a deceased person, and it details how assets and properties left behind by the decedent may be shared. The following are the benefits of having a last will:

  • It allows the testator to dictate how their assets will be distributed
  • Creating a last will allows the deceased to provide for family members, friends, or charity organizations after they are gone.
  • A last will and testament helps the testator appoint guardians for their minor children, ensuring they are properly catered for by trusted individuals who share similar values.
  • A will helps to minimize disputes, conflicts, or legal contention among family members as it clearly states who gets what
  • Wills can include provisions for tax. Providing for tax can reduce the estate tax payable by the beneficiaries, leaving more for them.
  • Having a last will can protect a family business. It ensures that the right person gets to manage the business. This ensures continuity of the business while still providing for their loved ones after death.

Potential risks of not having a Last Will and Testament

North Carolina Intestacy law determines how the deceased assets may be distributed without a valid last will and testament. The following are the effects of not having a last will:

  • Having a will helps avoid the Texas law of Intestacy. Without a will, the state determines how the assets are distributed, which may not align with the deceased's wishes.
  • Where there is no will, intestate succession laws may distribute assets to relatives who were not intended beneficiaries or, worse still, exclude individuals who are intended beneficiaries
  • Lack of a valid will may breed conflict between family members and, in some instances, degenerate into lawsuits
  • Failure to draft a will can delay beneficiaries accessing the estate. In addition, the family would incur court fees, lawyer costs, and other administrative expenses just to access the estate
  • The absence of a will makes it difficult to settle the debts and liabilities of the deceased
  • The tax liability increases for the deceased heirs, reducing the amount available for distribution
  • Where there is no will, the deceased forfeits the right to appoint trusted guardians over their minor children

Examples of situations where a Last Will and Testament can be useful

A last will and testament empowers the testator to make informed decisions about the distribution of their assets when they are gone. The following examples portray the usefulness of creating a last will:

  • Family Protection: A will ensures that the spouse and children left behind after the testator’s demise are adequately provided for financially
  • Protection for Unmarried Partner: Where the deceased is in a committed relationship with a partner but not legally married, having a will ensures that unmarried partners are provided for after death. Where there is no will, the surviving unmarried partner may have no legal claim to inheritance
  • Special Needs Dependant: Where the testator has a special needs child who requires ongoing care, a will allows for the provision of their care, ensuring they continue to receive the treatment they require after death
  • Business Continuity: Some businesses die after the demise of the founder. If the deceased owns a business and wants to ensure it continues to operate smoothly after their passing, creating a will can specify how the business should be managed. The ill also ensures that the person with the right expertise manages the business's operations, ensuring continuity.
  • Minor Children: When the only surviving parent dies without a will, it creates a problem for the guardianship of minor children. In some instances, the children can end up in foster homes. A will becomes useful as it specifies a tested person who may provide care for the children when that parent passes.

When does your Last Will and Testament take effect in North Carolina?

In North Carolina, a last will and testament becomes effective on the death of the individual who created the will. In essence, a will becomes effective at death. However, some procedures must be followed to effect the will. The time between when a person dies and when the beneficiaries receive the inheritance varies based on the nature and location of the assets, the complexity of the estates, debts and claims against the estate, and state legal requirements.

In North Carolina, notifying beneficiaries of their inheritance happens within 3- 6 months after the testator's death. However, it involves several steps. The executor of the will must file a petition with the Probate Court in the county where the deceased resided within days of the death to commence the probate process. The Probate Court validates the will and ensures that all legal requirements are met and the will is executed appropriately. The Probate Court then schedules a hearing date, notifying all beneficiaries and other interested parties.

When the Probate Court validates the will, the executor's duties begin. The executors commence the inventory of the deceased estate, which includes valuing assets, notifying creditors, and paying debts and taxes. Depending on the size of the estate, this can take several months. After settling all outstanding obligations, the executor may distribute the assets to beneficiaries according to the terms of the will.

How to Create a Last Will and Testament in North Carolina

Creating a last will and testament in North Carolina ensures that an individual's wishes are legally documented and executed after their death. Creating a valid will in the state involves the following key steps:

Step 1: Familiarize yourself with North Carolina laws on wills
Step 2: Compile a list of assets and decide on the properties to include in the will
Step 3: Determine the beneficiaries, deciding who gets what
Step 4: Choose a person designated as the executor to handle the administration of the estate
Step 5: Decide who becomes the legal guardian for the minor children
Step 6: Consult a legal practitioner if there are complex assets, complex family dynamics, or legal concerns
Step 7: Draft and sign the will in front of witnesses
Step 8: Periodically review and revise the will to ensure it reflects any major life event such as marriage, birth, or divorce to ensure that the will remains up-to-date
Step 9: Store the will in a secure location and inform the executor of the location of the will

Legal Requirements for creating and executing a Last Will and Testament in North Carolina

Per Chapter 31 of the North Carolina General Statutes, the following are the legal requirements for creating and executing a last will and testament in the state:

  1. Age: The individual creating the will must be 18 years or older. Emancipated minors or legally married minors may also create a will.
  2. Legal Capacity: The individual creating the will must have the legal capacity to make the will. This requires the person to have a sound mind and understand the complexities of creating a will.
  3. Writing: A will must be written to be legally valid in North Carolina. However, the state accepts oral wills, nuncupative wills, for persons with terminal illnesses or when death is imminent.
  4. Intention: The will must state the creator's intent and outline how the assets may be distributed after death.
  5. Signature: The creator must sign a valid will before at least two witnesses. Where the testator cannot sign, another person may sign the document on their behalf but in their presence.
  6. Witnesses: The will must be signed by at least two witnesses who are not beneficiaries of the will or related to the testator.
  7. Self-Proving Affidavit: North Carolina laws permit testators to include a self-proving affidavit signed by the testator and witnesses. This affidavit allows the will to be admitted at the Probate Court without witness testimony.

Depending on the size and complexity of the testator's estate and the lawyer’s expertise, a legal practitioner may charge between $300 - $1,000 in North Carolina. There are other costs associated with creating a will in the state. For instance, testators who provide self-proving affidavits must pay the fees to notarize the document.

Other known costs include transportation costs, executors fees, safety deposit box fees, and costs associated with reviewing and updating the will. Where the testator decides to draft the will themselves, the fees are minimal and even free in some instances. Online resources provide free templates for drafting the will, while some online platforms charge as low as $75 to use their software to draft the will.

Preparing a Last Will and Testament: How to Write One in North Carolina -

Preparing a last will and testament requires the testator to include the required information to ensure the will is valid. Per state law, the following fields are required when creating a last will in North Carolina:

  • The testator’s information, including their full legal name and address of residence
  • A statement declaring the testator’s capacity of sound mind
  • A statement revoking any past will created by the testator
  • Appointment of the executor. The information must contain the executor's full name, address, and duties.
  • A statement of asset distribution. This field requires the testator to state how they wish their properties and assets to be distributed after death and list the corresponding beneficiaries of the assets.
  • Where applicable, a statement appointing guardians for minor children. The statement must include the full name of the guardians.
  • The testator must sign the testator in the presence of two witnesses. The witness must also sign the will in the presence of the testator.

While not required by North Carolina law, persons drafting a will may choose to include other information. This information is optional and does not affect the validity of the will. They include:

  • Notarization is not required by North Carolina law. However, notarizing the will brings credibility to the document and provides evidence that it was executed properly.
  • Burial and funeral provisions. The testator doesn't need to state their preference for funeral or burial arrangements on the will.
  • Special bequests. This optional field permits the testator to give specific gifts or donations to certain beneficiaries, such as charities and foundations.
  • Contingency plan. This field allows the testator to specify what happens should a beneficiary die before the testator.
  • Trusts. Setting up trusts to manage assets on behalf of the beneficiaries is optional.

To avoid complications, legal consequences, or unexpected outcomes, a valid will should not include the following information:

  • Assets already assigned to a beneficiary before the creation of the will. Such assets include life insurance policies or retirement accounts. These assets pass automatically to the named beneficiary. Therefore, inclusion in the will may cause confusion
  • Jointly owned property where the right of ownership automatically passes to the surviving partner
  • Property held in a living trust does not form part of the testator's estate and should not be included in the will
  • Including detailed instructions on funeral arrangements in the will. Wills are typically read after the funeral. Adding such information to the will may delay the burial.
  • Will should not include conditional gifts, impossible requests, or personal letters.

Completing a last will and testament accurately to ensure its validity is important. Therefore, consider the following tips when drafting the document:

  • Familiarize yourself with North Carolina law on wills
  • Gather all the necessary information
  • Consult a legal attorney for guidance and clarity on state laws
  • Read carefully before filling out the form
  • Be specific. Use full names and descriptions of the property when listing assets and beneficiaries
  • Sign the will according to state law
  • Regularly review and revise the will
  • Store the original copy of the will safely, and let the executor know the location of the will.

There is no mandatory format for properly executing and recording a last will in North Carolina. To properly implement and record a will, consult with an attorney before drafting the will. After creating the will, schedule an execution ceremony with your attorney. The execution ceremony takes place at the attorney's office with two witnesses. The testator and witnesses sign the will. The testator may then proceed to notarize the will. This is optional in North Carolina. After notarization, the testator receives the attorney's original copy of the will and keeps the same in a safe and secure location. The testator then informs the executor of the location of the will.

How often must I update my Last Will and Testament?

There are no legal requirements for updating a will in North Carolina. Choosing a time to update a last will and testament is a decision that the testator makes for themselves. However, it is recommended that wills be reviewed periodically after significant life events so that it continues to accurately capture the wishes of the testator.

Factors that may necessitate updating a Last Will and Testament

Circumstances that can lead to the need to update a will include:

  • Life changes such as marriage, divorce, the birth or adoption of children, or death of a beneficiary
  • The change of asset portfolio of the testator. Sale or acquisition of significant assets such as property or investments
  • Health changes such as a decline in health or the diagnosis that affects the long-term prognosis of the testator
  • Relocation of residency to another state as the new state may have significant differences in probate laws
  • Change in the wishes of the testator or a scheduled review to ensure legal compliance

Recommendations for reviewing and updating a Last Will and Testament

Here are some recommendations for reviewing and updating a North Carolina last will and testament:

  • Locate the most recent version of the will and make copies for legal advisers to review
  • Compile a list of updated assets (bank accounts, properties, assets, investments, etc) with their values
  • The testator should check for beneficiaries and see if they still want them to inherit and if the same assets
  • The testator should review asset distribution to see if it still reflects their current wishes
  • Check to see if the guardians selected for minor children are still suitable
  • Review the executor to see if they are still available, willing, and ideal for this role
  • Consider digital assets such as online accounts and social media profiles and the handling postmortem
  • Consider consulting an estate planning attorney to review the will. Lawyers can also identify areas needing updates, advice on legal requirements, guidance, draft revisions, or a new will.

Do I Need a Lawyer to Create a Last Will and Testament in North Carolina?

No, a lawyer is not required to create a last will and testament in North Carolina. A handwritten Do It Yourself (DIY) will or an online will is acceptable in North Carolina as long as they meet certain requirements. A testator can also use software-generated wills or will templates in North Carolina. However, a self-done will have the risk of having potential errors that can invalidate it. A DIY will only be considered if the testator’s estate is simple, they have a basic understanding of North Carolina’s inheritance laws, or they are comfortable with legal procedures and documents.

What’s the Difference between a Last Will and Testament, a Living Trust, and a Medical Power of Attorney?

While Last will and testaments, living trusts, and medical power of attorneys are all related to the death or incapacitation of the principal, there are differences between these three. The table below lists the differences:

Last Will and Testament Living Trust Medical Power of Attorney
Distributes the assets of the principal after death to the beneficiaries Holds on to as well as distributes assets during life or death Makes medical decisions when the principal is incapacitated
It kicks in at the death of the principal It kicks in immediately after it is created It comes into effect when signed but only becomes active when the principal becomes incapacitated
Falls under the jurisdiction of the probate court Generally avoids probate court jurisdiction Is not involved with the probate court
Is not activated by the incapacity of the principal At the incapacity of the principal, assets will be managed by a successor trustee At the incapacity of the principal, medical decisions are to be made by the agents of the principal

Can a Last Will and Testament Be Challenged?

Yes, a last will can be challenged in North Carolina. Per North Carolina General Statute (N.C. Gen. Stat.) § 31-32, a contestor can challenge a will by filing a formal document contesting the will within three years of the submission for probate. It can be challenged by an interested person who would have inherited based on a previous will or under the intestacy laws of North Carolina if the descendant’s will is challenged and established to be invalid. The reasons why a party can challenge a will in North Carolina include:

  • The will is found to be fake, and the testator was deceived into signing it under false pretenses.
  • Someone pressured or manipulated the testator to make specific decisions in the will that could have been different.
  • The will was not prepared, witnessed, and signed under the legal requirements of North Carolina.
  • The testator is deemed to lack the mental ability to make decisions about the will when they sign it.

Procedures for challenging a last will and testament in North Carolina include:

  • File the official document (also called caveat) that initiates the process of contesting the will with the Clerk of the Superior Court
  • Notice is served to interested parties and those whose names may be in the will
  • The filer of caveat, also called the caveator, organizes an alignment hearing for the court to align all parties involved.
  • Any interested party not aligned will be dismissed from the proceedings by the judge but bound by the proceedings.
  • Within thirty days after alignment, any interested party who is aligned can file a response to the caveat.
  • In the discovery and pre-trial phase, the contestor of the will puts together all the evidence that supports their case and has negotiations to possibly settle the case before going to trial.
  • The case goes to trial before a court if no settlement is reached.
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