THE LAW ABIDES

A legal information blog discussing North Carolina Law, for when you're out of your element

North Carolina Estate Planning: Wills


The term “Will” refers to a legal document that disposes of an individual’s property after death. But what exactly does that mean? Practically speaking, it lets someone have a final say over their property “from the grave,” since their wishes are being carried out after their passing. N.C.G.S. § 31-1. In fact, Wills are quite useless during an individual’s lifetime, as a Will is ineffective until the death of that individual. N.C.G.S. § 31-41. The document itself will identify property owned by the Testator (the person who a Will is made for) and will direct the Executor of the Estate (a person chosen to follow the instructions of the will and make sure the instructions are carried out) to dispose of the identified property as directed. N.C.G.S. § 31-40.

Often this looks something like “I give X to Mr. Y,” but in some cases a Testator may wish to place conditions on devises of property before those beneficiaries receive property under the Will, such as “I give X to Mr. Y, but only if Mr. Y attends and graduates from college.” These conditions aren’t limitless, but they do allow for more control of one’s property and simultaneously encourage beneficiaries to perform tasks prior to receiving property under the Will.

In North Carolina, three types of Will are accepted if properly executed. N.C.G.S. § 31-3.2. First, the Attested Will is what individuals often think of when requesting an attorney to write up their Will. N.C.G.S. § 31-3.3. Many formalities are necessary to properly execute this type of will, with a key element being the requirement of having at least two competent witnesses attest that the Testator signed the document in their presence (or upon information from the Testator indicating to the Witness that they had in fact signed the Will). N.C.G.S. § 31-8.1. Second, North Carolina does accept Holographic Wills, which are Wills written in the Testator’s handwriting, signed by the Testator, and found in a place of safekeeping after the Testator’s death. N.C.G.S. § 31-3.4. While effective, this type of will leaves open numerous points of attack, and can create trouble when an individual attempts to submit a Holographic Will for probate. Finally, North Carolina accepts Nuncupative Wills (oral Wills) which are verbal Wills that are submitted to probate. N.C.G.S. § 31-3.5. Several times limits are placed on this type of Will, and by their very nature present significant obstacles when probated, from an attack on whether or not the Testator actually communicated their final wishes prior to death, to whether the memory of the witnesses themselves have accurately transcribed or recalled the wishes of the Testator. Among the three types accepted, an attested Will gives a Testator the peace of mind that appropriate planning can avoid the pitfalls of improperly drafted Wills.

Regardless of the type, since Wills do not become effective until the death of the Testator, a Will may be amended, revoked, shortened or lengthened, beneficiaries added or removed, or have property added or removed. Any such changes must be made in accordance with North Carolina law, and more specifically with certain rules of attestation if the Will is an attested Will.

Seems simple enough right? But in reality, Wills are legal documents that must be drafted with careful attention to detail, and by someone who is knowledgeable of the intricacies of the law surrounding estate law. Why? Because Wills are THE MOST contested legal documents in American law. Even in the example I provided above, “I give X to Mr. Y, if he attends and graduates from college,” I was required to evaluate the enforceability of such a bequest. Does it violate the dreaded Rule Against Perpetuities? Is it against public policy? What type of property is X and does this condition constitute undue restraint on alienation of real property? Even still, questions arise as to the Testator themselves. Did they possess the minimum competence necessary to create a will? Did the Testator execute said will with Testamentary Capacity? Were they unduly influence into create the will?

A common question I get, even as a new attorney, is “do I need a Will?” And the answer I usually give, although frustrating, is “it depends.” Why? Because in North Carolina, as in every other state, statutes have been enacted to control the distribution of property where an individual dies without having created a valid Will. Dying without a valid Will is referred to as dying intestate, with intestacy laws determining the manner in which property is distributed where a Will does not control. N.C.G.S. § 29. Therefore, no one really needs a Will, but rather, everyone should, at a minimum, have a Will to assure their property is disposed of as they wish.

A valid Will, properly executed, will assure an individual that they are able to control where their property ends up after they die, if, of course, the Will is properly drafted and executed. N.C.G.S. § 31-46. Proper drafting and execution of a Will can significantly reduce costs related to probate litigation if potential beneficiaries (heirs) dispute property distributions. Rather than litigation expenses being drained from the estate, a validly executed Will can withstand the attacks of those who feel they are entitled to more than a Will has actually bequeathed.

If you are contemplating a Will or other Estate Planning strategies, Hite Law can assist you with making sure your wishes are properly carried out and that your property is distributed how you want it to be. Schedule a free consultation today to discuss your options and what will be best for your individual situation! Contact.

QUESTIONS OR CORRECTIONS

I’m always interested in making sure the information provided in The Law Abides is accurate and up to date. Any questions or corrections you may have related to this article, or your case, can be directed to Tyler Hite by e-mail (office@hitelawpllc.com), phone (828-263-4907), or through my website here. I offer free initial consultations, and will be happy to listen to and answer case specific questions. Please note, contacting my office does not create a client-attorney relationship, but any information you provide will be held in confidence as required by the North Carolina Rules of Professional Conduct for a potential client.


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