Writing a will in North Carolina is important to ensuring the distribution of your assets according to your wishes. In North Carolina, there are specific legal requirements for writing a will to ensure that it is legally binding. More importantly, if you do not have a will in North Carolina, you will be considered as dying “intestate“. Here’s what you need to know.
Intestate Laws in North Carolina
Intestate refers to the legal situation when someone dies without a valid will. In this case, the deceased person’s property is distributed according to the laws of intestacy. These laws are a set of rules that determine how the property will be divided among the deceased person’s heirs. Intestate laws vary by state and depend on the number of surviving relatives and property type. Intestate laws are in place to ensure the fair distribution of the deceased person’s assets in accordance with legal requirements, even in the absence of a will.
Requirements of Writing a Will in North Carolina
Here are the 5 main requirements of writing a will in North Carolina.
1. Age and Mental Capacity
To create a will in North Carolina, you must be at least 18 years old and of sound mind. This means you must be mentally capable of understanding the nature and extent of your property, the effect of the will, and who your beneficiaries are.
2. Writing and Signing Requirements
In North Carolina, a will must be in writing and signed by the testator, or someone at the testator’s direction in their presence. The testator must also sign the will in the presence of two witnesses, who must also sign the will in the presence of the testator and each other.
3. Witness Requirements for Writing will in North Carolina
The witnesses to a will in North Carolina must be competent adults who are not beneficiaries under the will. This means that the witnesses cannot inherit any property or assets under the terms of the will. If a witness is a beneficiary, the gift to that person will be void unless there are at least two other witnesses who are not beneficiaries.
4. Testamentary Capacity Requirements
To have testamentary capacity in North Carolina, you must understand the nature and extent of your property, who your beneficiaries are, and the effect of the will. Additionally, you must not be under undue influence or duress when creating a will.
5. Pre-Existing Wills
The testator can revoke a will in North Carolina at any time. You can do this by creating a new will and destroying the original will. If you create a new will, it should explicitly state that it revokes any previous wills.
Joint Tenancy and Life Insurance
You cannot distribute property owned in joint tenancy with the right of survivorship through a North Carolina will. Additionally, the beneficiary of a life insurance policy cannot be changed through a will.
Surviving Spouses
If you exclude a spouse from a will, it’s important to note that a surviving spouse will receive a portion of the decedent’s estate if they claim it within a certain period of time. If a spouse is explicitly not mentioned in the will, it’s often referred to as the spousal elective share or spousal share. This legal provision ensures that the surviving spouse receives a predetermined portion of the deceased spouse’s estate, typically a fraction or percentage defined by each state’s law, regardless of the terms outlined in the will.
Holographic and Nuncupative Wills
In addition to written wills, North Carolina also recognizes holographic and nuncupative wills, with specific criteria and restrictions for each.
Benefits of Writing a Will in North Carolina
Writing a will in North Carolina has several benefits, including:
Control Over Asset Distribution
By creating a will, you have control over the distribution of your assets after your death. You can decide who receives your property and in what amounts.
Protection of Minor Children
If you have minor children, a will can be used to name a guardian to care for them after your death. Naming a trusted guardian ensures that your children will be taken care of.
Avoidance of Probate
Probate is the legal process that takes place after someone dies. It can be time-consuming and expensive. By creating a will, you can help ensure that your estate does not go through probate.
Avoidance of Family Disputes
Lastly, a will can help prevent family disputes over your estate. By clearly outlining your wishes, you can help avoid confusion and disagreements among family members.
The Cost of Not Having a Will in North Carolina
Not having a will in North Carolina means that intestacy laws will come into effect, and the probate courts will decide what happens to your estate. In the absence of a will, the way your assets are distributed will depend on your surviving family members. For instance, if you have a surviving spouse, they will inherit everything in the absence of children or parents.
If you have children or parents, the spouse will receive a portion of the estate, with the remaining being split among the surviving children or parents. In case there are no surviving family members, the next closest relative will inherit your estate. And if no relatives are found, the State of North Carolina will become the beneficiary of your estate.
Accessible Will Creation with Free Online Programs
Free online programs offer accessible solutions for individuals to create a will regardless of their financial circumstances. These tools ensure that everyone has the opportunity to establish their final wishes without the burden of high costs.
By dedicating just 15-30 minutes to utilize these resources, you can provide clarity and direction for your loved ones in the event of your passing. Taking this proactive step not only brings peace of mind to you but also ensures that your family members are spared from confusion and disarray during an already difficult time.
Other Estate Planning Documents to Consider
It is also important to consider other aspects of estate planning, such as naming beneficiaries for your life insurance policies, retirement accounts, and other assets. Altogether, you should periodically review these designations to ensure that they accurately reflect your wishes and any changes in your life circumstances.
Self-Proving Affidavit
A self-proving affidavit is a legal document that accompanies a Last Will and Testament and verifies the authenticity of the will after the individual’s death.
Power of Attorney
Power of attorney is a legal document that allows a designated person (known as an agent) to make financial or medical decisions on behalf of the grantor.
Advance Directive/Living Will
An advance directive is a legal document that provides instructions for medical care if the individual is unable to make decisions for themselves.
In Conclusion:
Undoubtedly, creating a comprehensive estate plan, including a will, can provide numerous benefits and protect your assets and loved ones. It is crucial to ensure that your will is registered and stored in a safe place after your estate plan has been put in place and witnessed correctly. This ensures that your will can be easily located when required. Both steps are undeniably essential for the security of your will.
