What is a Will, and What are the NC Requirements Regarding Wills?
A will is a document that helps you protect your family and your assets following your death. A will can be used to leave property or other assets to those you choose—people or organizations. You can name an executor in your will who will ensure the terms of your will are properly carried out. A trusted individual can be named in your will to act as a guardian for your minor children. You can also name a person to manage any property left to your minor children.
In the state of North Carolina, the following requirements must be met for a will to be valid:
- The person making the will must be 18 years or older.
- Wills must be made on “hard copy,” meaning it must be on paper rather than audio, video, or another type of digital file. While handwritten (holographic) wills are permitted under NC law, they are not generally encouraged and must be entirely in the will-maker’s handwriting.
- The person making the will must be of sound mind under NC Gen. Sta. §31-1
- An oral (nuncupative) will is allowed only when an individual is dying of an illness or otherwise in imminent threat of death. There must be two competent witnesses to an oral will.
- A North Carolina will must be signed in front of two witnesses, then the witnesses must sign the will in front of the person making the will. Witnesses must be “disinterested” parties who do not stand to benefit from your will. Holographic wills do not require witnesses.
- While a North Carolina will does not need to be notarized to be legal, you can make your will “self-proving” by having it notarized. A self-proving will can make the probate process go more quickly because the court will accept the will without contacting the witnesses. A self-proving will requires you and your witnesses to sign before a notary public.
What Role Does a Will Play in a Comprehensive Estate Plan?
Your last will and testament is one small part of a comprehensive estate plan. Estate plans vary from one person to the next, but your will outlines the specifics of what happens to your assets upon your death.
If you don’t have a will, your assets will be subject to the law of intestacy, which may not be how you want your assets distributed.
Additional estate planning components may include:
- Power of Attorney
- Living trusts
- Medical directives
- Revocable trusts
Your estate plan may require asset protection planning, charitable planning, reducing taxes and more. Credit shelter trusts may be formed to maximize your tax exemptions.
A will is, often, the first document someone will create as part of a greater estate plan.
If you don’t want your assets to go into intestacy, a will ensures that your wishes are followed.
The Risks of Probate
In North Carolina, it is possible to avoid having your estate probated. With the help of a lawyer, the process is straightforward.
What happens if an estate is probated?
In most cases, probate is simply a matter of completing a mountain of paperwork. However, there are some complications that can arise, especially with larger estates and if there is no last will and testament.
Some of the risks of probate can include:
- Family disputes. If an estate has valuable assets, heirs may argue over who should receive those assets in court.
- Court expenses. Probate does come at a cost, which includes but is not limited to filing fees and probate fees based on the estate’s personal property assets.
- Time. For a regular estate, the probate process can take anywhere from six to 12 months in North Carolina.
The probate process can be navigated with the help of an experienced lawyer, but planning and foresight can help families avoid these potential headaches.
What May Be Included in a Will?
A last will and testament can include multiple assets, some of which may not need to be listed, such as accounts with “rights of survivorship,” which is common on jointly-owned homes with a non-spouse, joint bank account, retirement accounts and others.
Your attorney should verify that your accounts have the right beneficiaries and right of survivorship in place during an annual review.
Items that may be included in a will are:
- Bonds and stocks (not held in beneficiary)
- Checking accounts
- Savings accounts
- Furniture
- Real estate that is not joint tenancy
- Businesses
- Guardianship
- Executor
- Caregivers for pets
- Gifts to charity
- The naming of someone to manage assets left to minors
If an asset has a way to be transferred outside of a will, it should be. For example, a life insurance policy will have a beneficiary designation, and this is the preferred way to transfer the policy rather than relying on a will.
Certain retirement assets, such as a 401(k) or IRA, will have beneficiaries that you can list, too.
You can, and should, consider how you want your assets divided. If you want your first child to receive a family heirloom, list it in your will to avoid the item going into probate.
We will work with you to create a will that includes every last important detail to protect your estate when you die. Your last wishes can be followed, but you need the proper legal documents in place.
What Are the Risks of Not Having a Will?
If you do not have a will, your estate will go through probate and the court will determine who will receive your assets, based on state statute. For example, if you have a spouse and one child, your spouse will receive the first $30,000 of your personal property with the remainder of your personal property and real estate split between your spouse and your child.
- The courts will generate legal expenses your estate must pay
- If you are married and have children from a prior relationship, a large portion of your estate could go to those children rather than your spouse.
- The assets of a single person who dies without a will could go first to the parents of the decedent, or siblings if the parents are not alive—even if you do not get along with your siblings.
- If you have a long-time partner, your death could leave that partner in a very difficult position since state laws do not recognize unmarried partners.
- Without a will naming a guardian for your minor children, the court will choose a guardian—one that you might not be in favor of.
What Does an Attorney for Wills in Raleigh Do?
An attorney for wills in Raleigh from NC Planning can assist you with drafting your will, helping your family ensure your wishes are properly carried out, and aiding in any legal proceedings following your death. Having an experienced will attorney can do the following:
- Your attorney can help you build a specific will that is tailored to you and your family.
- Since a poorly prepared will can be worse than no will at all, the cost of a will is considered minimal.
- Common mistakes made by those who prepare a will without an attorney are avoided. Most people are unaware of the state statutes that make a will legal, plus a single mistake could potentially invalidate your will.
- Your will attorney can ensure your assets are distributed as per your wishes.
Legal Definitions Regarding North Carolina Wills
The following terms are associated with wills:
- Testator—The person making the will
- Beneficiary—The person receiving an inheritance through a will
- Bequest—A provision in a will leaving property to another person
- Heir—A person designated under state statute who is entitled to inherit from you
- Intestate—When a person dies without a will, they are said to have died intestate
- Executor—The person you choose to be in charge of handling the distributions in your will
- Probate—The legal process under which the court approves the terms of your will and oversees the distribution of your assets
- Guardian—The person you choose to be legally responsible for your minor children
Types of Wills
North Carolina accepts multiple types of wills:
- Attested — a will that is typewritten and signed in front of two witnesses.
- Handwritten — a will that is handwritten in the testator’s own writing.
- Oral/nuncupative — a will that is often created on a person’s deathbed and must be declared in front of two people.
- Joint will — a will that two people, often spouses, create together.
An attested will is the most common and easiest to prove that it is valid.
What is an Executor?
When drafting a will, you will be asked to name an executor. The executor is the person who will manage your financial affairs after your death. If probate is required, they will also handle this process or hire a lawyer.
Executors may have several duties, depending on the complexity of the estate. These include:
- Reading and filing the last will and testament.
- Locating and managing assets until they are distributed to heirs. The managing of assets may also involve deciding whether to sell securities or real estate owned by the decedent.
- Determining whether probate is required. Streamlined probate options may be available, and jointly owned assets may pass to the surviving owner without probate.
- Notifying creditors, banks and government agencies of the death. Executors may also terminate credit cards or leases.
- Pay debts, taxes and bills. An executor may also set up an estate bank account that will hold any money owed to the deceased person, such as stock dividends.
- Manage the distribution of the person’s assets.
Executors have a fiduciary duty, which means that they must act with the highest degree of honesty and impartiality on behalf of the deceased individual.
How Do I Choose an Executor?
Selecting an executor is not a decision to take lightly, and the person you name is not required to serve. Choosing the right person is crucial.
Consider the following:
- Will they have the time and inclination to deal with the paperwork?
- Will they have the capability of dealing with potential heirs and creditors fairly and calmly?
- Are they well-organized and able to juggle several tasks?
An executor does not necessarily have to be a trusted family member or friend. You also have the option of using a corporate fiduciary.
Schedule a consultation with us to discuss creating or updating your will.
Do I Need a Will If I Have a Trust?
A trust can dictate how your assets are distributed, so you may assume that you do not need a will. However, everyone should have a will, even if they have a trust.
Here are a few reasons why:
- A will ensures that your trust functions properly. If you forget to put an asset in your trust, a pour-over will can serve as a backup to ensure it is distributed as per your wishes. A pour-over will allows you to fund the trust with any of the assets you may have overlooked before your death.
- A will allows you to name a guardian for minor children – something you cannot do with a trust.
Although a trust gives a great deal of control over how your assets are distributed, it does not negate the need for a will.
Your estate planning attorney can help ensure that your will and trust work together to carry out your last wishes.
How to Select the Best Attorney for Wills in Raleigh
If you are seeking an attorney for wills in Raleigh, you might look on the Internet or you might choose to ask friends, family members, or co-workers who have used an estate planning attorney. The NC Planning attorneys strive to provide you with exceptional service as well as a thorough understanding of your journey with us. We want to make estate planning as easy as possible for you—from your first point of contact throughout our relationship. The NC Planning attorneys would love a chance to get to know you and tell you how we are different from other North Carolina estate planning firms.
How NC Planning Will Help You Plan for the Road Ahead
At NC Planning, we work hard to build strong client relationships, working with clients from all walks of life. We do more than talk about client care—we live it from the time you step into our office, throughout our relationship with you. At NC Planning, we believe in open, honest communication, along with responsiveness and accountability.
Proper planning makes it easy for you to plan for the worst-case scenario, ensuring your loved ones are taken care of after your death. Your NC Planning lawyer will work with you to fully understand your goals, then help you develop a foundation estate plan that will help you achieve those goals. We are here to help! Contact us today in our Raleigh, NC office or our Cary, NC office to schedule an appointment.
