Last Will and Testament for North Carolina Clients
Wills in NC – Durham Estate Planning Lawyers
The most well-known aspect of end of life and estate planning is the Last Will and Testament. A properly executed Last Will and Testament gives you peace of mind knowing that your assets are going to the people you want and that your loved ones are taken care of.
The Law of Wills in NC
Wills are governed by state law. To be properly done, the person making a Will (the testator) must be over 18 and of sound mind. While we are not medical experts by any means, we do have a duty to not allow someone to be coerced into signing a Will they don’t understand or don’t want to sign. We also take measures to prevent elder abuse in our will drafting and execution. We have some simple tests that we can administer to determine if someone is competent to sign a Will if we are suspicious that the person may not be competent.
Wills have to be executed (signed) before two disinterested witnesses. This means that people with no interest in the Will need to be present and need to watch the testator sign his will. We also provide the witnesses with affidavits to execute which indicate they witnessed the testator sign the will.
After you pass away, your Will controls how your assets are distributed, who is to make sure your wishes are followed, and who should care for your children.
It is up to the attorney to impress the seriousness of the occasion onto the minds of the testator and witnesses, and we take that responsibility seriously. We have the testator read his or her will outside of our presence. We answer any questions about the Will and make revisions as necessary. We discuss whether there was any coercion or unlawful influence by other people in the choices made by the testator.
Our Philosophy on Drafting Your Will
Without proper planning on the front end (drafting of a Will), you can have some serious problems on the back end (estate administration by your loved ones after you pass). At best, a poorly drafted Will can cause conflict between family members.
Other times, it can cause thousands of dollars spent in litigation and the end result will be nothing like what the testator wanted. It’s important to hire an attorney to draft your Will who understands what the consequences of his or her drafting will be.
Since so many people who come to see us about a Will also need other estate planning documents, we often will draft several documents as part of a more comprehensive estate plan that may include a Will, Power of Attorney, Healthcare Power of Attorney, and Living Will.
The Will Drafting Process for our Estate Planning Attorneys
Consultation
The first thing we do with a client who wants a Will is have a consultation. During the consultation we discuss the things most important to the client regarding his or her estate plan. We can do this on the phone, in person, or even by e-mail if necessary. We gather all necessary information to draft the Will.
Drafting the Will
Next, we draft the key provisions of the Will for you to review. This can be in person or by e-mail. We make any necessary revisions and schedule an execution ceremony once you approve the final draft.
Execution of the Will
The final stage is the execution ceremony. We have you come into our local Durham office to sign all of the documents before a notary and two disinterested witnesses; you may bring your own witnesses or we can provide the witnesses. We have you read the Will one more time to make sure it complies with your wishes. Assuming we have the green light from you to continue, we perform the execution ceremony.
We then leave you with instructions on how to file, store, or record all of the relevant documents or, if you prefer, we offer a service where we do the filing, storing, and recording on your behalf. We give you copies of all of the documents in a packet so that you can access the documents easily in the future and you can show your loved ones your estate plan.
For those who wait until late in life to do estate planning or are not ambulatory, we do home or hospital visitation for the consultation, the revisions, and the final execution ceremony.
What Goes into a proper Will?
Every will is different. As long as it does not violate public policy, the way you devise property in your will is about as flexible as your imagination. However, we do try to organize them a certain way when we can. The following are the typical steps we take, though we are very flexible about how we design the Will and tailor each one to the needs of the individual.
Specific Gifts
Usually, the first thing we do in drafting a Will is find out if you have any specific gifts that you want to give to people. Sometimes, people have sentimental items they want to give or they have particularly valuable items they’d like to see with a particular loved one.
Real Property
Next, we find out about any real property (land, houses, etc.) you own and how you’d like that distributed. You can choose whether to sell property, keep property in your family, or whether you’d like someone else to make that decision. You can choose to give certain loved ones the right to live in a house for their life, and then leave the property to someone else. There are numerous other options we can discuss.
Residuary
We almost always include something called a “residuary clause” in our Wills. That helps to prevent property from passing through intestate succession (the process set up by the state to handle property that is not covered by a Will). We find out who you would want the rest of your property to go to. This includes things you did not think about or things you acquired after drafting your will. It also can include things that you meant to give to someone else but that person predeceased you.
Guardianship for Minors
For any children you leave behind when you pass, you can nominate a guardian to care for them. This is one of the most important provisions of your will. While your nomination is not binding on the Clerk of Court, the Clerk will give great weight to your nomination. It is important to give this careful consideration as to what would be in the best interest of your children if you pass before they are adults.
Gifts to Minors | Trust for Minors
If a minor child gets a gift in the Will, you can set up a trust in the Will to manage that money until the child reaches adulthood. You can set it up to slowly give the gift out in pieces or you can set up other restrictions on the trust.