What is a Will?...
A will is a legally enforceable declaration of how you want your property to be distributed at death. A will is a blueprint that guides the executor (executrix if a woman) in distributing an estate. A will allows you to decide who shall receive your property and what share they will receive.
A person who makes a will is called a testator (testatrix if a woman). When a person dies leaving a will, he or she is said to have died testate. A person who dies without a will dies
interstate.
Who May Make A Will?
In North Carolina, any person of sound mind, at least 18 years of age, may make a will.
Can A Will Be Changed?
A will has no effect during the testator's lifetime. It speaks only at death. Prior to that time, a will can be changed; it can even be revoked (canceled).
There are certain ways to change a will. Don't draw a line through a paragraph or write the word "omit." Writing extra words on lines will not accomplish the desired changes either. Such actions may make the will invalid.
If changes are to be made, a codicil needs to be prepared by an attorney. A codicil is a supplement to the existing will and must be executed and attested to with the same formalities of a will. If major changes are desired in a will, it is better to revoke it and make a new one.
A will should be reviewed periodically, especially when there are changes in family or financial situations. Such circumstances include, but are not limited to:
marriage, remarriage or divorce occurring after the will was written;
birth of a child;
death of a beneficiary;
moving to another state;
acquiring additional property;
substantial increase in the value of property; and
passage of federal or state laws affecting death taxes.
Can A Person Make His Own Will?
Yes, a person can make his or her own will. However, self-made wills can create problems. Many words have special meaning in the law. When these words are used by a layperson, the results may not be those intended. An attorney is trained to avoid the legal pitfalls that result from a "do-it-yourself" will.
Is A Will Made In Another State Valid In North Carolina?
Generally, a will which disposes of real property located in North Carolina must be executed (signed and witnessed) in accordance with North Carolina law in order to be valid. In contrast, the validity of a will disposing of personal property is determined by the laws of the state where the decedent was domiciled (living) at the time of death even though the personal property is located in North Carolina.
What Property Cannot Be Disposed Of By A Will?
Property owned by husband and wife in "tenancy by entirety" is owned, after the death of one, solely by the survivor. If property is owned by two or more persons in "joint tenancy with right of survivorship" the survivor takes all. Proceeds of insurance policies, pension funds, U.S. Savings Bonds, P. O. D. (payable on death) deposits or other assets where a beneficiary is named cannot be disposed of by a will unless the estate is named as beneficiary.
Are There Restrictions On Disposing of Property By Will?
Generally, the author of a will has the right to disinherit persons, including children, who would otherwise inherit property had the author died intestate (without a will). Children have no vested interest in their parent's property. However in North Carolina, a spouse cannot be disinherited under a will.
What Effect Does Divorce Have On A Will?
A divorce after a will has been written does not revoke the will. The divorce does, however, revoke all provisions in the will in favor of the divorced spouse.
Must A Will Be Witnessed?
Wills should be signed by at least two persons (preferably three) who witnessed either the signing or the testator's acknowledgement of the signature.
None of the beneficiaries named in the will should be a witness to it. All gifts by will made to witnesses or their spouses are void unless there are two other witnesses.
A holographic will does not have to be signed by witnesses. This type of will is handwritten by the testator. To be valid in North Carolina, a holographic will must be entirely in the decedent's handwriting and signed by the decedent. In addition it must be found among his or her personal effects or in the hands of a person entrusted with its safekeeping.
What Is A Self-Proved Will?
North Carolina's "self-proving will" provision calls for sworn affidavits and notarization of the testator's signature and witnesses' signatures when they sign as witnesses. When the will is later probated, it is not necessary to locate the witnesses. This provision can save time and money in settling the estate.
Where Should A Will Be Kept?
After a will is drafted, store it in a safe place where it can be found. If a bank or trust company is named as personal representative, the will may be left with the institution for safekeeping.
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 by an heir who would receive more under North Carolina law of intestacy than under the will.
You might want to use a safe deposit box. Another alternative is to file the will with the Clerk of Superior Court in your county.
What Is The Cost Of Having A Will Prepared?
Laws affecting taxation and estate planning have grown increasingly complex, and the services of an attorney fully competent in these fields are important.
Fees for legal assistance vary, depending on the size of the estate and the complexity of the will. Most law firms do not have a set fee for preparation of a will. Attorneys usually base their fees on the length of conference time with the testator and the amount of time it takes to draft the will. Do not hesitate to ask an attorney for an estimate of the fee for preparing a will, preferably at the first meeting.
Is A Will For You?
A will is a written document that describes how you want your property distributed after your death. By making a will, you can decide for yourself who shall receive your property, how much each shall receive, when they shall own it, and, to some degree, what they can do with it.
The drafting of a will or the related broader matter of estate planning involves decisions requiring professional skill and judgment, which can be obtained only through years of training, study and experience. It is recommended that an attorney be consulted to draft a will suited for your individual situation.
