Jonah Patel
A will, also known as a last will and testament, is a legal document that outlines how a person's property will be distributed after their death. In North Carolina, a will must meet specific legal requirements to be considered valid. These requirements include the age and mental capacity of the testator, the format and content of the will, and the role of witnesses and notarization. Creating a valid will ensures that one's wishes are carried out after their death, including the distribution of property and the guardianship of any minor children.
| Characteristics | Values |
|---|---|
| Age | 18 years or above |
| Marital Status | Lawfully married |
| Mental State | Of sound mind |
| Written | Typed or printed |
| Signed | By the testator and two witnesses |
| Holographic Wills | Handwritten and signed by the testator |
| Attested Wills | Signed by two witnesses |
| Self-Proving Affidavit | Signed by the testator and witnesses |
| Oral Wills | Allowed in rare circumstances |
| Revoke | Burning, tearing, canceling, obliterating, or destroying |
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What You'll Learn
Age and mental capacity requirements
To create a valid will in North Carolina, the testator must be at least 18 years old and of "sound mind". Being of sound mind means that the testator must have the mental capacity to understand and appreciate the following:
- The nature and extent of their property: This includes real estate, personal belongings, bank accounts, investments, and other assets.
- The natural objects of their bounty: This legal term refers to understanding who their beneficiaries are, typically family members, friends, or organizations.
- The disposition they are making: The testator must comprehend how they want to distribute their property and the consequences of these decisions.
Being of sound mind does not require the testator to have perfect mental clarity. Instead, they must simply possess enough understanding to make coherent and informed decisions about their estate when signing the document. In other words, they must have testamentary capacity, which is the legal term for the mental capacity to make a will. If an individual is cognitively impaired in a way that affects their ability to understand these matters, they cannot legally make a valid will. This is why it is important to create a will before developing an impairing condition, such as Alzheimer's disease.
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Holographic wills
Firstly, the handwritten document must clearly express the testator's intention to create a will that dictates how their property will be distributed upon their death. This is known as testamentary intent. Secondly, the will must be found in a safe place upon the testator's death. Acceptable locations include among the testator's valuable papers, in a safe deposit box, or in the possession of an individual entrusted with the will for safekeeping.
It is important to note that the inclusion of typed or printed words on a document containing a holographic will does not automatically invalidate it. North Carolina courts have recognised pre-printed will forms completed in the testator's handwriting as valid holographic wills, provided that the handwritten portions are coherent without the printed text. This principle, known as the "surplusage theory," considers the pre-printed language as non-essential to the will's meaning.
When probating a holographic will, specific procedures must be followed to ensure its authenticity and validity. The individual presenting the will for probate, known as the propounder, must secure the testimony of three individuals familiar with the deceased's handwriting. These individuals must sign an affidavit confirming that they recognise the signature and handwriting as belonging to the deceased. Additionally, at least one person must submit an affidavit attesting to the location of the will at the time of death, confirming it was found in one of the legally permissible locations.
Given the intricate legal questions that may arise with holographic wills, it is advisable to consult a North Carolina Probate Lawyer when creating or probating one. A lawyer can provide invaluable guidance in navigating the complexities and ensuring compliance with procedural rules and deadlines.
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Attested wills
An attested will is a will that isn't completely handwritten by the testator. In other words, it is a will that has been attested to by someone other than the person making the will (the testator). In North Carolina, attested wills are a valid type of will.
For example, if you are physically unable to write your will, you may ask a family member to write it for you. In this case, you would need to sign your will in front of two witnesses, and they must also sign the will. These witnesses should be mentally competent and disinterested parties, meaning they will not benefit from the will.
It is important to note that while North Carolina does not require wills to be notarized, it is beneficial to do so. Notarization makes the probate process faster and easier, as the court can accept the will without contacting the witnesses to prove the validity of their signatures. Additionally, it makes it very difficult for anyone to contest the will.
North Carolina does not currently allow digital or electronic wills, so all wills must be written documents. Holographic wills, or handwritten wills, are also accepted in North Carolina, but they must be completely in the testator's handwriting and signed by the testator.
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Oral wills
In addition, the testator must declare their will to be their will in the presence of two competent witnesses who are simultaneously present. These witnesses must be specifically requested by the testator to bear witness to their oral will. The witnesses must not be heirs or beneficiaries of the testator.
The witnesses must reduce the testator's final wishes to written form as soon as possible, and no later than 10 days after the testator's death. For an oral will to be enforceable, it must be offered for probate within six months of the testator speaking it, unless one of the witnesses has reduced the statement to writing within 10 days of the testator speaking it.
An oral will may only be used to bequeath personal property, i.e., not land, buildings, or things attached to the land.
It is important to note that proving that a deceased person's final words constitute a legally binding will can be challenging. North Carolina is one of the few states that will even consider a claim of an oral will. If you are involved in the probate or contesting of an oral will, it is recommended to seek skilled legal counsel experienced in estate law.
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Revoking or changing a will
A last will and testament in North Carolina is a legal document that allows you to specify how and to whom your property will be distributed when you die. It also allows you to nominate a guardian for your children and an executor for your estate. A will is not set in stone, and it can be revoked or changed.
Revoking a Will
A will can be revoked by the will-maker at any time before their death, so long as they have the testamentary capacity to do so. There are three methods by which a valid will may be revoked in North Carolina:
- A subsequent writing: A will can be revoked by executing a later written instrument, such as a subsequently written will, a codicil, or any other writing expressly declaring the will-maker's intent to revoke the will. The subsequent written instrument must be executed under the same formalities as are required for the execution of a will.
- A physical act: A will can be revoked by physically destroying the document with the intent and purpose of revoking it. This can be done by burning, tearing, cancelling, obliterating, or destroying the will. Physically destroying one executed copy of a will serves to revoke all executed copies in existence.
- Operation of the law: A will can be revoked by operation of the law, such as in the case of a divorce or annulment.
Changing a Will
A will can be changed at any time before the will-maker's death through either a codicil, which is an amendment or addition to an existing will, or by creating an entirely new will that properly revokes any previous wills. It is important to ensure that any changes to a will are made in accordance with the legal requirements for a valid will in North Carolina. This includes requirements such as the will-maker being of sound mind and signing the document in the presence of two disinterested witnesses.
It is recommended to consult with an experienced estate law attorney when making changes to a will to ensure that the changes are made correctly and that the will continues to meet the legal requirements for validity.
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Frequently asked questions
A legal will, also known as a “last will and testament”, is a written document that outlines how your property will be distributed after your death.
In North Carolina, a legal will must be written and signed by the testator (the person making the will) and two witnesses. The testator must be at least 18 years old and of sound mind, meaning they have not been deemed incompetent in a prior legal proceeding.
No, notarization is not required for a will to be valid in North Carolina. However, you can make your will "self-proving" by going to a notary and signing an affidavit. This speeds up the probate process as the court can accept the will without contacting the witnesses.
No, North Carolina does not currently allow digital or electronic wills. Your will must be a written document to be valid.
Yes, you can revoke or change your will at any time. You can revoke your will by burning, tearing, canceling, obliterating, or destroying it with the intent to revoke, or by making a new will that revokes the old one.
