North Carolina Wills

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North Carolina Will Requirements

A North Carolina Will ensures your property passes to your beneficiaries in accordance with your wishes. What are the formalities for making a Will? The law governing North Carolina Wills is contained in Chapter 31, Wills. You need to be at least 18 years of age and be of sound mind to make a North Carolina Last Will and Testament. § 31 1

Making a Will

A North Carolina Will must be:

  • in writing;

 

  • signed by the testator (the person making the Will);

 

 

  • attested by at least two competent witnesses;

 

 

  • the testator must signify to the witnesses that the document is his by either signing in their presence or acknowledging his signature to them (whether separately or collectively);

 

 

  • the witnesses must sign the Will in the presence of the testator (but need not sign in the presence of each other). § 31 3.3

 

Most states require all parties (the testator and all witnesses) to sign in each presence. Even though North Carolina does not maintain this requirement, it’s always best to have all parties present at the same time to remove any inference of duress or undue influence.

Who can witness my Will?

You can use any person over the age of 18 to witness a North Carolina Will. § 31 8.1 Do not use any person to whom are leaving a gift or power of appointment, their spouse or any person claiming under them, as a witness. If any of these persons witness the Will, that person’s interest in your Will becomes void. § 31 10 To avoid this happening, make sure to use independent persons to witness. You may use your executor as a witness, as long as they are otherwise independent. § 31 9

Holographic Wills in North Carolina

A North Carolina Will may still be valid if it doesn’t comply with the execution formalities. If the Will is not witnessed, it may be valid as a holographic Will if it’s written entirely in the testator’s handwriting (if other words or printed matter appear on the document, they must not affect the meaning of the words in the testator’s handwriting, otherwise the Will is invalid). § 31 3.4(1) A holographic North Carolina Last Will must also be subscribed by the testator or his name written in or on the Will in his own handwriting. § 31 3.4(2) Finally, the document must be found after death among the testator’s valuable papers or effects or in a safe-deposit box, or with a person or firm with whom the Will was deposited by the testator for safekeeping. § 31 3.4(3) If all these requirements are complied with, then the document may be probated as a holographic North Carolina Last Will and Testament. It is suggested you do not rely on this section to make your Will. It will cause problems with probate and may even render your Will invalid. Always comply with the formal execution requirements.

Can I make a verbal Will?

A person may make an oral (nuncupative) North Carolina Will to dispose of personal property only. These kinds of North Carolina Wills also bear strict formalities. The Will must be made in your last sickness or imminent peril of death which you do not survive. You must declare it to be your Will before two competent witnesses who are simultaneously present and specially requested by you to bear witness to the oral Will. § 31 3.5 It is definitely not recommended to make your North Carolina Last Will and Testament orally if you can avoid it. Not only is it difficult to prove, you may end up with no valid Will at all.

Can I leave a gift to an attorney?

Yes, as long as they did not draft your Will. § 31 4.1 Any gift written in your North Carolina Willto the attorney who drafts the Will is void. However, an attorney can prepare your Will and receive a gift if they are:

  • your relative (within five degrees of kinship);

 

  • your current or former spouse;

 

 

  • your parent;

 

 

  • your sibling;

 

 

  • a child of your present or former spouse.

 

You may still appoint any attorney in a fiduciary capacity (such as an executor), even if they write the Will.

How can I cancel my Will?

In order to cancel (revoke) your North Carolina Will, you must:

  • make another Will or writing, declaring the revocation (this must be executed in the same manner as a Will); or

 

  • burn, tear, cancel, obliterate or destroy the Will. § 31 5.1

 

If revocation is not performed properly, there can be difficult legal issues when it comes time for probate. Ensure your Will is revoked properly by using both methods (express and physical revocation).

How do I change my North Carolina Will?

You may make a Codicil (a document executed with the same formalities as a Will). A codicil is read alongside the Will. Both documents will need to be probated. Alternatively, you may make a new Will and revoke the prior Will.

Getting Married

You should update your North Carolina Last Will & Testament as soon as you become married (unless your Will already provides for your spouse). If you die without updating your Will, then your spouse is only entitled to an elective share of your estate. § 31 5.3

Divorce & Your North Carolina Will

Divorce or annulment of marriage does not revoke your Will. However, any provisions in favor of your former spouse (such as gifts, power of appointment and appointment as executor, trustee, conservator or guardian) become void. § 31 5.4 It’s always advisable to write a new Will after the marriage ends by divorce or annulment.

Can I deposit my Will with the court?

Yes. After writing a Will, you may deposit the original with the clerk of the superior court in your county. You have a right to withdraw your North Carolina Will at any time prior to your death by providing a written request. Whilst in safekeeping, the Will cannot be inspected or open to the public until offered for probate. § 31 11

Probate of North Carolina Will

Filing for Probate

To apply for probate of a North Carolina Will, you need to file and application for probate together with an affidavit. § 31 16 The application may be made at any time after the testator’s death.

Who may apply for probate?

During the first 60 days after the death, only the executor named in a North Carolina Last Will & Testamenthas the right to apply to have the document admitted to probate. § 31 12 If the executor does not file the application within 60 days, then the application may be filed by:

  • a beneficiary named in the Will; or

 

  • any other person interested in the estate.

 

This person must first give 10 days’ notice to the executor of their intention to file. § 31 13

Notice of Probate Application

The clerk of the superior court must send a notice to all the beneficiaries, notifying them that the North Carolina Will has been submitted for probate. The estate must pay the expenses of such notice. § 31 14

Required Witness Testimony

If the Will is self-proved, no further witness testimony is required to be filed (unless the Will is contested). § 31 18.1 If not self-proved, then both witnesses need to provide testimony. This testimony may be given in the form of an affidavit. § 31 24 There are circumstances where the court may probate a North Carolina Last Will on the testimony of one witness (for example where the other witness is dead, insane or out of the state). Proof of the unavailable witness’s handwriting is still required. § 31 18.1 The Will is probated once the court is satisfied that it was duly executed.

Refusing to hand over the Will

If someone is deliberately withholding a North Carolina Will, you may request the clerk to summons and compel the person to exhibit the Will in his court for probate. Such a request must be made by affidavit and must set forth the facts. If the person refuses in contempt, then he/she will be committed to jail until the Will is produced or accounted for. § 31 15

Estate Taxes

The North Carolina Estate tax is based on the federal estate tax. If the estate must file a federal estate tax return with the IRS, then the personal representative must also file a North Carolina estate tax return (Form A-101) with the department of revenue. If no tax return is required to be filed, the personal representative must still obtain an inheritance and estate tax waiver (Form A-105) in order to remove a lien against real property.

Contesting a North Carolina Will

Have concerns about a North Carolina Will? You may be able to contest it. Find out what’s required, who can challenge, time limits and procedure for objecting.

How to Contest

You must appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of the Will. § 31 32

Who may file a caveat?

A North Carolina Last Will and Testament may only be challenged by persons entitled to do so under the legislation. You need to either be entitled under the Will (a beneficiary) or have an interest in the estate (an heir or creditor). § 31 32

Time Limit

To contest a North Carolina Will, the caveat must be filed within three years after probate of the Will in common form. § 31 32 For minors, prisoners or insane persons, the caveat must be filed within 3 years after the legal disability is removed.

Procedure after filing caveat

Once the caveator provides the requisite bond of $200, the clerk transfers the cause to the superior court for trial. The caveator must provide notice of the caveat proceedings to all beneficiaries and other persons in interest, who may then make themselves proper parties to the proceeding if they choose. Persons, who also oppose the North Carolina Will, will be required to align themselves and must also file a bond. If they do not, then they will be dismissed from the proceedings but still bound by the outcome. Once a caveat is filed, beneficiaries cannot receive any distribution of assets until the matter is determined at trial. Both parties are required to produce evidence at the hearing to support their claims. § 31 36 Before the superior court enters a judgment, the parties may enter into a settlement agreement. § 31 37.1

Valid reasons to contest

The caveat will not be accepted by the court unless you are challenging a North Carolina Last Will and Testamentbased on a valid reason or ground. A belief that you were not left a sufficient share in the Will is not a valid ground. Reasons accepted by the court include:

  • that the testator lacked testamentary capacity at the time of signing the Will;

 

  • the Will was signed under fraud, duress or forgery;

 

 

  • the formal execution requirements were not complied with.

 

Excluding a Spouse or Child

A North Carolina Will may be written to disinherit your spouse or child. You need to be aware that simply failing to mention your spouse or child in your Will may not prevent them from taking a share. To properly exclude such persons, you should consult an attorney to have the appropriate Will clause drafted. A lawyer can also advise any other course of action you may need to take. Note however that the North Carolina general statutes provide minimum entitlements for omitted spouses and children.

Surviving Spouse

Minimum statutory rights for spouses are governed by Chapter 30 Surviving Spouses. If you try to exclude your spouse from your North Carolina Willor provide only a nominal share, your spouse is still entitled to the following:

  • an elective share of ½ of the total net assets if you leave nil or one child or descendant. If you are survived by two or more children or lineal descendants then the elective share is reduced to 1/3 of the total net assets. The share may be further reduced if the spouse is a second or successive spouse; § 30 3.1

 

  • Year’s allowance of $20,000 in money or personal property. § 30 15

 

Disinheriting Children

Even though children have fewer rights than your spouse, you still need to be careful if you’re trying to exclude a child when making a North Carolina Last Will. You cannot simply leave their name out and hope for the best. You need to intentionally express in the Will that the child is to be excluded. Also, remember to update your North Carolina Willas soon as you have a child (by birth or adoption). Otherwise, they may be entitled to a share of your estate, even though they weren’t alive or adopted when you executed the Will. The share is based on the portion they would receive if you had died intestate (without a Will). The legislation state that such a child is entitled to the intestate share unless:

  • you made some provision in the Will for that child (whether adequate or not);

 

  • it’s apparent from the North Carolina Last Will and Testament that you intentionally did not make specific provision for the child;

 

 

  • you had children living when the Will was made, none of whom take under the Will;

 

 

  • you made some other provision for the child that takes effect on your death (for example by life insurance proceeds) whether or not adequate. § 31 5.5

 

Dying without a North Carolina Will

Not having a North Carolina Will can have drastic and unintended consequences for your family. Who gets your estate once you die? Dying without a Will is called dying intestate. The intestacy laws are set forth in Chapter 29 Intestate Succession.

Married Persons

If you leave behind a spouse, the statute treats real property and personal property differently. Your spouse’s entitlement to each depends on whether you have surviving descendants (children, grandchildren, great-grandchildren and so on) or even surviving parents. For example, if you are survived by two or more children (or their descendants), your spouse is entitled to 1/3 of the real estate, the first $50,000 in personal property plus ½ of the remaining personal estate. The children or their descendants receive the balance. See the intestacy examples below for other common situations.

Widowed or Unmarried Persons

If you did not make a North Carolina Last Will before passing away and do not have a surviving spouse, your estate is distributed in accordance with section 29-15. Firstly, the estate is divided equally between your children. The children of any deceased child take the share that their parent would have been entitled to. The same formula applies to your great-grandchildren and great-great-grandchildren. If you don’t have any lineal descendants, then the estate goes to your parents or the survivor. Failing this, the estate is inherited by your brothers and sisters and their lineal descendants if any have passed before you.

Intestacy Examples

To see how the legislation works, take a look at some of the most common household circumstances here. These situations can be avoided by making a North Carolina Last Will and Testament. In all the cases below, the decedent did not make a North Carolina Will & left $300,000 in real property and $100,000 in personal property: intestacy example, wife died without a North Carolina Will, leaving husband and children: Alicia died leaving her husband Frank and their child. Who gets what? Frank: $150,000 in real estate and $65,000 in personal assets, Frank & Alicia’s Child: $150,000 in real estate & $35,000 in personal assets. Share of wife, children and stepchild when husband died intestate: Ken passed away. He left his wife Judith and their two children. Ken also has a child from a former marriage. Who gets what? Judith: $100,000 in real property and $65,000 in personal property Ken’s 3 children (including his child from a former partner): share $200,000 in real property and $35,000 in personal property. Intestate succession: share of husband and wife’s parents when wife died without making a North Carolina Will: Angela died without any descendants. She is survived by her husband Ron and her parents. Who gets what? Ron: $150,000 in real property plus $75,000 in personal assets Angela’s parents: $150,000 in real estate plus $25,000 in personal property. Intestacy share of children and grandchildren when grandmother died without a Will: Brenda died without a will. She had 3 children with her husband (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $133,333 (1/3), Granddaughter (single child): $133,333 (1/3), Grandsons (brothers): $66,667 each (share 1/3).

North Carolina Will Forms

Making a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to make a Will yourself, make sure to use the tools available on the internet including Will forms, Will templates and even Will software.

Note: Writing a Will can be daunting. Before creating a North Carolina Will, we recommend you research vital information on how to make a simple Will and on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

North Carolina Will Form: Married with adult children
North Carolina Will Form: Married with adult and/or minor children, includes a trust for minor children
North Carolina Will Form: Married with no children

North Carolina Will Form: Single with adult children
North Carolina Will Form: Single with adult and/or minor children, includes a trust for minor children
North Carolina Will Form: Single with no children

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