Making a Will in North Carolina

Presented by the Law Offices of Cherly David | April 2013

Making a Will in North CarolinaCommon Issues, Legal RequirementsAnd Options


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Cheryl K. DavidEstate Planning & Elder Law Attorneywww.cheryldavid.com

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11Your Will


WILLS ARE ALSO SOMETIMES REFERRED TO AS LAST WILLS AND TESTAMENTS

Every capable adult in North Carolina should have a will.





North Carolina has specific laws that apply whenever you create a will, but you can create, or modify, your will at any time.





12Why Bother Creating A Will?





A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE OF SPECIFIC PURPOSES

Distribute property after you die






Nominate someone to care for your young children






Create a trust that will own property for young children until they are old enough






Appoint someone to manage your estate during the probate process




13North Carolina Will Legal Requirements

ATTESTED WILLS

North Carolina law allows for three types of wills, but by far the most commonly used and easy to create is what is called an attested will.





Legal Requirements

- Printed

Attested wills must be made in writing.





Legal Requirements

- Signed

You must sign your own will or, if not capable of signing physically, have someone else sign for you at your direction.





Legal Requirements

- Witnesses

You have to sign your will in the presence of two competent witnesses. The witnesses should be people who do not stand to inherit from you.





14Other Types of Wills

2 OTHER TYPES OF WILLS

People in North Carolina can also create two other types of wills, though you should never do so unless it is impossible to create an attested will.






Handwritten Wills

Known as a holographic will, these wills are created entirely in your own handwriting.




Oral Wills


Also called a nuncapative will, these are wills you create entirely by speaking.

They are only allowed in some very limited circumstances.




15Qualifications


CAPACITY You can only make a will in North Carolina if you have the legal capacity to do so.

- Adult

You must be at least 18 years old to make a will in North Carolina.




CAPACITY You can only make a will in North Carolina if you have the legal capacity to do so.

- Mentally sound

Only a person who is capable of reasoning and making decisions can create a will.





Most people are mentally sound, but those who have been adjudicated incompetent by a court,

those with intellectual or cognitive impairments, as well as those with illnesses that impact their ability to

make choices, such as Alzheimer’s disease,

are not mentally sound.

Mentally sound






TESTATOR

The law refers to a person who makes a will as a “testator.”





Sometimes, “testator” is used to refer to men who make wills, while “testatrix” is used to refer to women who make wills. In many cases the term testator is used regardless of the person’s sex.

TESTATOR




16Will Clauses

Wills can include any number of clauses. While state law imposes specific requirements, there are a range of

optional clauses that, though not necessary to create a legally valid will, are very important.


WILL CLAUSES





Will Clauses - Executor Appointment

Once you die someone will have to manage your property and ensure that your wishes are met.





- a personal representative

- Executor

- can only be appointed through your will

Will Clauses - Executor Appointment




Will Clauses - Guardian


- Guardian

- Someone who will take over your parenting responsibilities should you die.




Will Clauses - Guardian


If you are a parent with a young child you can use your will to nominate a guardian.




Will Clauses – Testamentary TrustYoung children cannot legally own property, so if you have young children it’s also important to create a testamentary trust so that any property they inherit is transferred to the trust until they are old enough to own it.

- Testamentary Trust





Will Clauses – Testamentary Trust

The trust, through a trustee you appoint through your will, will manage the property for the child’s benefit.





No two wills are identical, and only an attorney can tell you what clauses you should or

shouldn’t include.

WILL CLAUSES





17What Happens If You Don’t Make a Will

The State of North Carolina Has Already Chosen For You

Every state, including North Carolina, has enacted laws that determine who will inherit your property after you die.


These laws apply automatically unless you create a will or other estate planning device that disposes of your property in a manner you choose.




Essentially, by choosing not to make a will you choose to allow state intestacy laws to make

your choices for you.





Court Battles

Dying without a will when you have minor children is especially problematic. If this happens, the court will have to go through the process of selecting an appropriate guardian.





If your family cannot agree on who this is it can lead to a difficult, and sometimes lengthy, court battle. Regardless, you will have no say over who this person is because you failed to make a will that nominated your choice of guardian.

18Common Questions

Do I have to leave my family an inheritance?


Yes and no.

North Carolina guarantees spouses a portion of your estate and there is nothing you can do to

disinherit your spouse completely.




However, it is possible to disinherit children, even if they are minors.






Doing so is somewhat tricky, and you will need to ensure your will specifically addresses each child and states that you choose not to leave an inheritance.






Can I change my will after I make it?

Some people, after making a will, believe that by choosing to leave people an inheritance they are legally obligated to leave that person the inheritance specified in the will.





…This is NOT TRUE.

Wills are not contracts, and you can revoke your will or change its terms at any time.


Can I change my will after I make it?




3 Primary Ways to Change Your WillRevocation

You can destroy your will, effectively cancelling your inheritance choices. You can do this at any time as long as you are mentally competent.

New will You can create a new will with completely new terms and direct that the old will is no longer valid.

CodicilA codicil is a written document that amends your current will without revoking it or rewriting it. It too must be made in writing and meet the same requirements a will must meet.





1

Final Thoughts


Do Not Delay




Choosing to make an estate plan is one of the most important things you can do to help your family should the worst happen. While procrastination is common, act quickly because you never know what will happen tomorrow.


Do Not Delay




A Beginning, Not an End

Getting started with estate planning is always a good choice to make, and creating a will is a good place to start. But a will is not enough to meet all of your estate planning needs. Other documents accomplish different purposes that wills are not suited for.





Medical choices. If you want to receive, or refuse, different types of medical care should you lose your ability to communicate you will need to create a living will or other type of advance directive. A will is not a suitable device to communicate your medical choices.Financial management. If you are incapacitated you will also need someone to manage your property for you, but you cannot choose who this is through your will. You’ll have to create a power of attorney to appoint someone.Other options. Complete estate plans often include many additional pieces, such as trusts, Medicaid plans, or other elements.

A Beginning, Not an End





Thank You!Cheryl K. DavidEstate Planning & Elder Law Attorney

davidlawnc

cherylkdavid

lawofficesofcheryldavid

davidlawnc

[email protected]


Making a Will in North Carolina

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