Unfortunately, lacking a valid will doesn’t just mean that your end-of-life wishes may be ignored; it can also place additional strain and stress on your surviving loved ones. Instead of having time and space to grieve your death, they may instead find themselves locked in a messy estate battle with other family members.
Below, we explain the will-drafting process and why having a valid last will and testament is so important.
What Is a Will?
A will is a legal document that sets out the disposition of your assets and property after your death. Wills can also name a guardian for your minor children, establish a trust, and name an executor whose job it is to carry out your final wishes.
Just a few of the actions a will can take include:
- Leaving your property to named individuals, a trust, or charitable organizations.
- Explaining your final wishes (including funeral and burial details) and allocating funds toward them.
- Naming a personal guardian to care for your minor children (if both you and your child’s other parent predeceases them).
- Naming a guardian or other trusted person to control the property you leave to your minor children.
Under North Carolina law, someone who dies without a will – or dies “intestate” – will have their property distributed after death in accordance with North Carolina’s intestacy laws. Like other states, North Carolina first distributes a decedent’s property to their closest loved ones, then more distant loved ones, then the state.
More specifically, North Carolina’s intestacy laws will distribute property to:
- The surviving spouse and any surviving minor children; if none, then
- any surviving grandchildren; if none, then
- any surviving parents; if none, then
- any surviving siblings; grandparents, aunts and uncles; and any others “who otherwise would be entitled” to inherit from the decedent.
If the decedent has no living relatives and no will, the state may ultimately end up with the decedent’s assets and property. These intestate succession statutes can be made even more complex by divorce, remarriage, and blended families, which means that even if you think you’re content with the distribution of your estate through intestate succession laws, your surviving loved ones could be in for an unpleasant surprise upon your untimely death.
Why Do You Need a Will?
Many people assume that if they have few assets or a negative net worth, a will is unnecessary – but this couldn’t be further from the truth.
Not only can a will make things easier on your surviving loved ones by clearly and unequivocally disposing of your assets and naming a guardian for your minor child, but it can also ensure that what’s most important to you is taken care of in your absence. Having a will can help your loved ones avoid a messy and expensive estate battle.
Requirements for a Valid North Carolina Will
North Carolina’s will requirements are relatively simple. To make a valid will in North Carolina, you need to be:
- Of sound mind
- 18 years old or older
You’ll need to attest to both of these qualifications in the will itself. And while oral wills may be enforceable in some narrow situations, generally, for a will to be enforced, it must be in writing – not an audio or video file.
Next, your will must be signed in front of at least two witnesses, who must also sign the will in your presence. These witnesses must be “disinterested”; that is, they can’t stand to inherit any property or assets under the will.
If you have your will notarized by signing it in a notary’s presence as well, the will is transformed into a “self-proving” will – which means the probate court won’t need to contact the witnesses in order to administer the will.
How to Draft a Will
To draft a valid will, you’ll need to include the essential elements above: a statement that you’re 18 or over and of sound mind. Your will may then dispose of your property, name a guardian, outline funeral plans, or provide whatever other bequests you wish. You’ll need to have the will witnessed (and notarized, for a self-proving will).
Is It Legal to Draft Your Own Will?
While it’s not illegal to draft your own will (or use software to plug your information into a pre-generated form will), doing so can come with some risks.
First and foremost is the risk that, without legal knowledge and experience in drafting North Carolina wills, you may inadvertently leave out a key element and render your will invalid.
Having an experienced attorney draft and review your will can help ensure that it will stand up to any legal scrutiny.
Amending or Revoking Your Will
Once your will has been executed, you can still make changes – or revoke it entirely. To revoke a will, you’ll need to either:
- Burn, tear, shred, obliterate, or otherwise destroy your will – with the intent to revoke it;
- Order someone else to burn, tear, shred, obliterate, or otherwise destroy your will – after you provide verbal instructions to destroy the will so that you can revoke it; or
- Execute a new will that expressly states that it revokes the old will.
If you revoke your will without executing a new one, you’ll be intestate – just as if you had never executed a will in the first place.
If you need to make changes to your will, like adding or removing a beneficiary, changing a guardian, or making a charitable bequest, you can either revoke the will in its entirety and execute a new one or you can execute an amendment – called a codicil – to your existing will. Any changes to your will must be executed with two witnesses (and a notary for self-proving wills), just like the original.
If you’ve never had a will – or your most recent will no longer reflects your wishes – the legal experts at Weaver Bennett & Bland, P.A. can help. Our experienced attorneys have drafted wills of all types and complexity levels, and we can work with you to ensure that your assets go exactly where and to whom you’d like them to.