What is a Will in North Carolina?
A will is a legal document that transfers a person’s property according to their wishes upon the testator's, or will maker’s, death. Those people who collect under the terms of the will, known as the beneficiaries, do not acquire any rights under the will until the will maker’s death. The will maker may change his or her will at any time prior to his or her death, so long as they have testamentary capacity to do so.
Across North Carolina, wills fall into one of two categories – attested wills and unattested wills.
North Carolina Attested Wills
Last Will and Testament
An attested will is the traditional last will and testament that people think of when describing a will; that is, a will that is in writing, signed by the will maker, and attested to by witnesses.
For a last will and testament to will to be valid, there are certain requirements that must be met per North Carolina General Statute 31-3.3. Those requirements include the following:
- Writing: The will must be in writing.
- Signed: The will maker must, with the intent to do so, either (1) sign the will him or herself, or (2) another person must sign the will maker’s name, in the will maker’s presence, and at the will maker’s request.
- Attested by Two Competent Witnesses: The will must be attested to in the will maker’s presence by two competent witnesses who either (1) saw the will maker sign the will, or (2) had the will maker’s signature subsequently acknowledged by the will maker.
While it is not required to make a valid will, North Carolina General Statute 31-11.6 allows for an attested will to be made “self-proved” at the time of its execution, or at any time thereafter through acknowledgment by the will maker and affidavits of the attesting witnesses before an officer authorized to administer oaths. If an attested will is not made “self-proved”, after the will maker’s death, during a process known as probate, the attesting witnesses may ultimately have to be located and called to testify that they did indeed witness the execution of the attested will to prove that it is valid.
North Carolina Unattested Wills
In addition to the attested will described above, the North Carolina General Statutes hold that two other types of wills are valid if executed in accordance with the applicable laws, a Holographic Will (North Carolina G.S. 31-3.4) and a Nuncupative Will (North Carolina G.S. 31-3.5).
Like an attested will, a holographic will in North Carolina is a will that is in writing. However, there are numerous requirements that make a holographic will much different than a last will and testament. For a holographic will to be valid, it must include the following:
- Writing: The holographic will must be written entirely in the handwriting of the testator.
- Subscribed or Containing the Testator’s Name: The testator must either (1) sign his or her name at the end of the holographic will, or (2) include his or her name in or on the will in his own handwriting.
- Safe Place: After the testator’s death, the holographic will must be found in one of following places where it was deposited by the testator under his or her authority:
- Among his or her valuable papers and effects;
- In a safe deposit box or other safe place; or
- In possession of a person, firm, or corporation where it was deposited for safekeeping.
Unlike an attested will and a holographic will, a nuncupative will is an oral will. For a nuncupative will to be valid in North Carolina, it must meet the following requirements:
- Oral: The nuncupative will is made orally.
- Last Sickness: The nuncupative will is made by a person in his or her last sickness or who is in imminent peril of death.
- Person Does Not Survive: The person making the oral will does not survive such sickness or imminent peril.
- Two Competent Witnesses: Two competent witnesses are simultaneously present during the making of the nuncupative will and such witnesses were expressly requested by the testator to bear witness.
Are You Looking for an Estate Planning Lawyer in Charlotte, NC?
If you are looking for wills, trusts or estate planning assistance, you need to speak with an experienced estate planning attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.