If you haven’t made a will yet, now is a great time. Without one, your assets could end up in the hands of someone you didn’t intend. A will lets you control which beneficiaries inherit your money and how much.
Before racing off to make a will, you must understand what qualifies as a valid will in North Carolina. A Wilmington estate planning attorney explains will requirements in detail below.
North Carolina Will Requirements
North Carolina has several requirements for wills. If you fail to meet any of these requirements, your will won’t be valid.
Age and Mental Capacity
To make a valid will in North Carolina, you must be at least 18 years old. You must also have the testamentary capacity (also called mental capacity) to make a will.
What this means is that you must have an understanding of:
- The kind, nature, and extent of your property
- The manner in which you wish to dispose of your property
- The relationship between you and the people you wish to inherit your property
- The effect that making a will has on your estate
If you are cognitively impaired in a way that affects your ability to understand these matters, you cannot legally make a valid will. This is why it’s important to create a will before you develop an impairing condition, such as Alzheimer’s disease.
Testamentary Intent
Second, a valid will in North Carolina must have testamentary intent. This simply means that your will outlines the desired distribution of your property.
In addition to outlining the distribution of property, you can use your will to name a guardian for your minor children. This person would take responsibility for your children if you were to pass away before they turn 18.
Additionally, you can appoint an executor for your estate. It’s wise to do this because if you don’t name an executor, the court will have to choose one for you.
The executor is the person who will administer your estate after you pass on. They’ll file your will with the probate court, inventory your assets, file your final tax return, settle debts, and distribute assets to beneficiaries. This is an important job, so choose your executor carefully.
Your Will Must Be in Writing
Quite a few states allow digital wills, but North Carolina is not one of them. Here, your will must be a written document. Otherwise, it’s not valid.
Our state recognizes two types of wills:
- Holographic wills: A holographic will is one written in your own handwriting.
- Attested wills: An attested will is a will that isn’t completely written in your own handwriting. For instance, you might have a family member write the will for you because you’re physically unable to do so.
In rare cases, the state may accept oral wills. This is only the case if both of the following are true:
- You have a terminal illness and are on your deathbed, or you are in imminent danger of death and do not survive the peril.
- At least two witnesses hear your oral will after you specifically ask them to do so.
If you need help understanding oral will requirements, reach out to a Wilmington estate planning attorney.
Witness Requirements
If you have an attested will, North Carolina requires you to have two witnesses sign your will, and you must sign it in front of them as well. These witnesses should be mentally competent and disinterested parties, which means they won’t benefit from the will.
Is It Necessary To Add a Self-Proving Affidavit to Your Will?
A self-proving affidavit is a document that proves you signed your will properly. Although it isn’t required in North Carolina, it is highly beneficial.
With a self-proving affidavit, witnesses don’t need to appear in probate court. This is helpful because witnesses may pass away or disappear after signing your will.
Do You Need To Have Your Will Notarized?
While North Carolina doesn’t require you to have your will notarized, doing so will make the process easier and faster. Without notarization, the court must contact your witnesses to prove that their signatures are valid.
Additionally, notarization makes it very difficult for anyone to contest your will. An estranged family member, for instance, won’t be able to claim that you weren’t of sound mind when making the will.
What Happens If Your Will Isn’t Valid?
If your will isn’t valid, your property may end up in the hands of someone you didn’t intend. An undesirable person might also take guardianship of your children. You can avoid these problems by ensuring you have a valid will in North Carolina with the help of a Wilmington estate planning attorney.
David E. Anderson, PLLC, will help ensure your will is legally enforceable. Contact David E. Anderson, PLLC, to start the will-making process today.