Making a last will and testament is crucial in planning the distribution of your estate (assets including real and personal property) after your death. North Carolina wills give the testator, the person writing the will, the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your North Carolina will.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. A living will, called an “advance health care directive” under North Carolina law, would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, the laws of intestacy will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, the person who will be responsible for carrying out the wishes contained in the will; in the absence of a will, the courts would make the decision for you.
A testator can use a will for various purposes, but the most important is to express how assets such as homes, vehicles, business holdings, and bank accounts, should be divided upon the testator’s death. A North Carolina last will and testament can also allow you to name someone as the legal guardian of your children.
Moreover, in addition to testamentary trusts (trusts that provide a benefit for people), North Carolina law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”). Such a trust terminates upon the death of the last surviving animal covered by the trust. A North Carolina will gives you the option of caring for your animals after your death in this manner.
Before the terms of a North Carolina last will and testament can be effectuated, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. For estates of small value, North Carolina has a unique procedure through which probate can be avoided involving the filing of a form (Affidavit for Collection of Personal Property of Decedent); otherwise, the executor of a North Carolina must apply for “Letters Testamentary” and can proceed with winding up the estate once they are granted.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In North Carolina, the shares in real and personal property that go to a surviving spouse depend on whether there are also surviving children (and how many) or parents; personal property distribution also depends on its value.
If there is no surviving spouse, children, or parents, North Carolina laws of intestacy grant shares of the decedent’s estates to siblings, grandparents, aunts, and uncles; the closer the relative, the higher the priority to inherit.
As you can see, if you would like to have control over the distribution of your assets and avoid the application of intestacy laws, it is crucial that you have a valid North Carolina will.
Exceptions to ability to distribute property
Not all property you own can be distributed through a North Carolina will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. The beneficiary of a life insurance policy may also not be changed through a will.
Note that even if a spouse is excluded from a will, a surviving spouse is entitled to a portion of a decedent’s estate if claimed within a certain period of time.
Form a last will in North Carolina
The basic requirements for a North Carolina last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator with the intent to sign or by another person under his direction and in his presence.
- Witnesses: At least two witnesses must sign a North Carolina last will and testament in order for it to be valid. The witnesses must sign after witnessing the testator sign the will or the testator's acknowledgement of his signature. Although each witness must sign in the presence of the testator, they do not need to sign in the presence of one another.
- Writing: North Carolina wills may be written or oral, as more fully described below.
- Beneficiaries: A North Carolina will may dispose of property to any beneficiary. A beneficiary in a written or nuncupative will may serve as a witness, but unless there are also two disinterested witnesses to the will, the provisions benefiting the beneficiary and/or the beneficiary’s spouse are void. Alternately, a beneficiary under a holographic will may testify as to the validity of the will without voiding the gift to him or her.
Other recognized last wills in North Carolina
In addition to written wills, North Carolina recognizes the following types of wills:
- Holographic wills: A holographic, or handwritten, will may be recognized in North Carolina if it meets the law’s strict criteria.
- Nuncupative wills: A nuncupative, or oral, will may be recognized in North Carolina subject to certain restrictions.
Changing a North Carolina last will and testament
A North Carolina last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking a North Carolina last will and testament
A North Carolina will may be revoked at any time by the testator by another written will. Revocation of a written will may be accomplished in the following ways:
(1) By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or
(2) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in the testator's presence and by the testator's direction.
Revocation of a nuncupative will may be accomplished by a subsequent nuncupative will or by a subsequent written will, codicil, or other writing executed according the same procedures required of wills.
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