A North Carolina last will and testament is a legal document that specifies your wishes for how you want your property handled after you die. But how do you make a will in North Carolina? We have the answers to your frequently asked questions.
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What If I Die Without a Will in North Carolina?
A person who dies without a will is “intestate.” As such, a probate court must follow state intestacy laws that determine who inherits your estate. You may not like the result. You might assume if you have a spouse, your spouse inherits everything. But if you are married with no children, under North Carolina law, your spouse receives only half of your real estate and $100,000 in value, plus half the balance of your personal property. The rest goes to your living parents or living siblings. And if you have a significant other but are unmarried or you have a stepchild that you have not adopted, they do not inherit anything.
Also, if you have minor children, a court decides who the best guardian is to care for them without your input.
What Does a Will Do?
A will allows you to state your wishes about who manages your estate, who receives your property, and who cares for your minor children. In your will, you can do the following:
- Name a personal representative or executor to handle your estate
- Name and give away specific personal property and real estate to your beneficiaries
- Name beneficiaries to receive the remainder of your assets
- Choose guardians for your young children
- Choose caregivers for your pets
- Make charitable gifts
With a will, the probate process moves more quickly, saving your family and loved ones time and money.
What Doesn’t a Will Do?
You have certain types of assets that do not pass through your will, such as proceeds from a life insurance policy or a transfer on death (TOD) bank account. These non-probate assets transfer according to the terms of their own legal documents and do not go through the probate. These may include:
- Funds in transfer on death bank accounts and investment accounts
- Benefits from life insurance policies and annuities
- Retirement benefits, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
Review the beneficiary designations on your accounts and policies. And name a backup beneficiary in case your primary beneficiary dies before you. Any accounts or proceeds of a policy without a beneficiary go back into your probate estate.
Who Can Make a Will in North Carolina?
Under North Carolina law, anyone of a certain age with a sound mind may make a will. The person making the will, called a testator, must meet the following requirements:
- Age: The testator is 18 years of age or older.
- Sound Mind: The testator has testamentary capacity, meaning a sound mind. A testator has a sound mind when they understand what property they own, who their natural heirs are, and understand how a will disposes of their property.
If you have concerns about having a sound mind to make your will, you may consult an estate planning attorney for legal advice.
Does North Carolina Have a Statutory Will?
No. North Carolina does not have a statutory will or a mandated form. You do not have to use an attorney to draft your will. Many people opt to use online resources such as FindLaw Legal Forms and Services for help to make a will that conforms to North Carolina law.
What Types of Wills Does North Carolina Accept?
There are many ways to make a will. However, North Carolina only accepts certain types. Here are the rules regarding certain types of wills:
- Handwritten Will: A handwritten, or holographic will, is written in the testator’s own handwriting but not witnessed. North Carolina only accepts a holographic will if it is (1) written entirely in the testator’s handwriting; (2) the testator signs their will; and (3) the testator kept the will in a safe, safety deposit box, or some other safe place to indicate their intent to keep the will secure.
- Oral Will: An oral or spoken will, called a nuncupative will, is only valid under certain circumstances. The testator must be dying, called a last sickness, or in imminent peril of death. The testator must declare their will before two competent witnesses simultaneously.
- Electronic Will: An electronic will is a will signed, witnessed, or notarized by electronic devices. North Carolina does not recognize electronic wills at this time.
Although you may use a handwritten or oral will in limited circumstances, those types of will are often subject to will challenges based on fraud or undue influence. It is better to use a typewritten or printed will, signed by the testator in front of two competent witnesses.
Can I Make My Own Will in North Carolina?
Yes. If you know what property you own and who you want to receive, you are ready to make a will. An advantage of using a will drafting service such as FindLaw Legal Forms and Services is that you can customize and update your will whenever you want. So, if you have a major life event, such as a birth of a child, death of a beneficiary, or divorce, you can easily revoke your old will and make a new one.
How Do I Make My Will Valid in North Carolina?
To make a will valid in the state of North Carolina, you must follow their state laws and legal requirements for signing and witnessing wills.
- Signature: The testator must sign their will or direct someone to sign it for them in the testator’s presence.
- Witnesses: At least two competent witnesses must attest that the testator signed their will in their presence or that the testator acknowledged their signature on the will. Avoid using interested witnesses who may benefit from your will. While an interested witness will not invalidate your will, any gift to an interested witness becomes void.
- Notary: A testator may make a will without needing a notary public to attest their signature. However, you may need a notary if you want to use a self-proving affidavit.
- Self-Proving Affidavit: You can use an optional self-proving affidavit to attach to your North Carolina will. Your witnesses sign the affidavit in front of a notary attesting that you signed your will. The benefit of using a self-proving affidavit is that your will can go to probate court without additional witness testimony.
Can I Disinherit My Spouse in North Carolina?
Even if you try to disinherit your spouse, your spouse has a right to file a petition for an elective share. An elective share is part of a decedent’s estate that a surviving spouse may claim if left out of the will. In North Carolina, the percentage of the elective share is based on the length of the marriage. Your spouse may also receive a spousal allowance of $60,000 if you or your spouse are North Carolina residents.
Can I Disinherit My Children in North Carolina?
Yes. Your children do not have a right to inherit from you. If you want to disinherit a child, you must do so specifically in your will. Otherwise, a court may think you left them out of your will by mistake and award them an intestate share.
What Estate Planning Documents Should I Have in North Carolina?
In addition to your last will and testament, you may want to consider other estate planning documents. A will protects your loved ones after you die. A power of attorney and a living will helps you during your lifetime.
- Power of Attorney. A power of attorney allows you to appoint someone you trust as your agent to handle your financial affairs. Your agent has a fiduciary duty to act in your best interest. You determine what powers to grant your agent and when your agent’s authority begins and ends. For example, you could make a power of attorney that only begins upon your incapacity. Or you could stipulate a specific time period when you are out of the country.
- Health Care Directive. A health care directive or living will lets you name a person to make your healthcare decisions when you are unable. You can also give detailed instructions about life-sustaining treatments and end-of-life care during an end-stage illness or terminal condition. Having a health care directive means these difficult decisions don’t have to fall on your loved ones.
Fortunately, making a valid will and creating other North Carolina estate planning documents is easy with online estate planning resources.