Wills


A will is a written direction controlling the distribution of your property upon your death. Without a will, state law will determine what happens to your property

The following questions and answers are meant to offer some general background information on wills in North Carolina. If your questions are not answered here, please contact us for a consultation.



Who may make a will?

In North Carolina, the following conditions apply:

  • You, the maker of the will (called the testator), must be at least 18 years of age.
  • You must be of sound mind at the time of signing and not be under undue influence, duress, or fraud of another person.
  • Your will should be written.
  • Your will must be witnessed in the special manner provided by the law for wills.
  • You must follow exactly the formalities required for the execution of a will.

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What happens if I die without a will?

State law will determine what happens to your property. Generally, it will go to your spouse and children, or if you have neither, to other relatives according to the inheritance statute, a formula fixed by law. This formula is rigid and doesn't make exceptions for those members in unusual need. If you do not have a will, the court will not know your preferences as to who should care for your children.

Is a life insurance program a substitute for a will?

No. A life insurance beneficiary only receives the life insurance benefit. The policy will not determine how the rest of your property will be distributed.

Can a will be changed?

A will has no effect during the testator's lifetime; it speaks only at death. Prior to this time, a will can be changed, and even revoked. If changes are to be made, a codicil is a supplement to the existing will and must follow the same formalities. If major changes are desired, it is best to revoke your will and make a new one. A will should be reviewed periodically if there have been changes in family or financial situation that would warrant an adjustment to the existing will. Examples of these changes include:

  • Marriage, remarriage, or divorce after the will was written.
  • Birth of a child.
  • Death of a beneficiary.
  • Acquiring additional property.
  • Substantial increase in the value of property

Wills should also be reviewed to determine that it is still valid - as laws change over time.

How long is a will valid?

It is valid until it is revoked in the manner required by law.

Should I include funeral instructions in my will?

It is best to have funeral instructions in another place. A will is not effective until it has been approved by the clerk of court and recorded. This usually happens several days after the funeral of the person making the will.

Must my will leave something to my spouse and children?

Spouse: Neither a husband nor a wife may disinherit a spouse. The law gives a surviving spouse a choice to take his or her share under the will or to dissent from the will and take the share provided by law.

Children: It is legal to disinherit a child, but a lawyer can help you with this to be sure there is no misunderstanding of your intent.

What effect does divorce have on a will?

A divorce after a will has been written does not revoke the will. It does, however, revoke all the provisions in the will in favor of the divorced spouse if there has been a property settlement between the spouses.

Does a will increase probate expenses?

No. A will frequently reduces expenses, including legal fees. If you have no will, your family must go to court to administer your estate or to obtain a determination that administration is unnecessary.

Can I write my own will?

In North Carolina, you can have a will that is entirely in your own handwriting, which is referred to as a holographic will. It is wise to obtain legal advice before doing so ensure that you correctly write out your wishes. The writing of a will requires professional judgment which can be obtained only by years of training, experience and study. A lawyer can help you avoid the potential pitfalls and advise the course best suited for each situation.

What if I move?

It is best to have your will reviewed by a lawyer (in the state you are moving to) in order to be sure that it is properly executed according to the laws of the state.

Where should a will be kept?

After a will is drafted, store it in a safe place where it can be found. The original copy of the will should not be left in a desk drawer or other storage place around the home, it could be stolen or destroyed. Some alternatives include a safe deposit box or to file the will with the Clerk of Superior Court in your county.

 

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