If you are ready to write an NC will but unsure how to get started, wait no longer! While you must observe legal formalities and include specific language in your Last Will & Testament, it is not difficult to learn how.
In this article, we’ll explore all the legal requirements for a validly executed Will in North Carolina. Learn the necessary steps to create a legally sound NC Will with our detailed explanations and illustrative examples.
Keep reading as we walk you through the steps to ensure your Will’s validity and enforceability.
What is Testamentary Capacity?
An NC Will must follow specific requirements to ensure the accuracy and protection of your intentions. One of the fundamental legal requirements for a validly executed Will in North Carolina is testamentary capacity.
Testamentary capacity refers to your mental and legal ability to understand the nature and consequences of making a Will. You must have the mental capacity to make informed decisions about your estate.
For example, Sarah, an elderly individual, has been diagnosed with early-stage dementia. To meet the requirement of testamentary capacity, Sarah’s attorney arranges for a medical evaluation by a geriatric specialist. The specialist confirms that Sarah has the mental capacity to understand the nature of her decisions when creating her Will.
Why Voluntary and Free Will Are Crucial to Writing an NC Will
A validly executed Will in North Carolina must result from the testator’s voluntary and free will.
It should reflect your true intentions and not be influenced by coercion or undue pressure from others. You should have the freedom to make independent decisions regarding the distribution of your assets.
For example, John’s family constantly pressures him to change his Will to benefit them disproportionately. However, John’s attorney ensures that the Will accurately represents his true intentions and is executed voluntarily without any external influence.
A Will Must Be In Writing and Signed By the Testator
To meet the legal requirements, an attested written Will in North Carolina must be in writing and signed by you, the testator.
A will must clearly express your intentions. You may include information about the following:
- Who should receive your personal property
- What should happen to minor children
- Information about who should receive a gift or inheritance
Your signature (or indication you asked another to sign on your behalf) signifies your acknowledgment and approval of the document.
For example, Mary, a testator, prepares her Will on her computer, prints it out, and signs it in the presence of two witnesses. The written document ensures clarity and provides a reliable record of Mary’s intentions, while her signature signifies her approval of the document.
Why You Need Witnesses
For attested written Wills, in addition to your signature, North Carolina law requires the presence of at least two disinterested witnesses. They must also sign the Will.
The witnesses’ role is to observe your signing of the document and confirm your signature’s authenticity. The witnesses should be disinterested parties not named as beneficiaries in the Will.
For example, let’s say that David, the testator, signs his Will in the presence of his two friends, John and Sarah, who act as witnesses. They carefully observe David’s signature and then sign the Will themselves, affirming that they witnessed the execution of the document.
Do I Need to Notarize a Will?
While not required for the validity of a Will in North Carolina, it is advisable to have the Will self-proved by having it notarized. This additional step helps ensure the document’s authenticity and simplifies the probate process.
Specific Language in a Valid NC Will
North Carolina law requires similar language to the following before the signature of the creator of the Will:
“I do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence”
The law also provides that language similar to the following before the witness signatures:
“We, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.”
Finally, the NC statutes indicate you should go before a notary public who will execute a notary certificate attesting to the validity of your and the witness’s signatures.
Following the legal requirements for a validly executed Will in North Carolina ensures that your Will accurately portrays and protects your intentions. Following the necessary formalities and execution procedures, you can create a legally sound Will that safeguards your estate and facilitates a smooth probate process.
Selecting Witnesses for a Valid Will
When selecting witnesses for the Will, it is essential to consider specific criteria to ensure their suitability.
North Carolina law requires competent witnesses to understand the nature of the act they are witnessing. It is advisable to choose witnesses who are:
- Of legal age
- Mentally competent
- Readily available to testify if necessary
Also, having a beneficiary or a beneficiary’s spouse serve as a witness is not a good idea. Doing so often causes the beneficiary to be inadvertently disinherited.
Seize the Day
Executing a Will should be done with careful consideration of timing. It is crucial to complete the Will when the testator is of sound mind and capable of understanding the consequences of their decisions.
Executing the Will in a timely manner helps ensure the testator’s accurate wishes. It also reduces the risk of potential challenges based on incapacity or undue influence.
Properly signing, witnessing, and notarizing a Last Will & Testament in North Carolina is essential to ensure its validity and enforceability.
Understanding and adhering to the legal requirements and procedures surrounding the execution of a Will protects your assets and ensures the smooth transfer of your estate.
By following the guidelines outlined in this article and using the provided examples, individuals with limited legal knowledge can confidently navigate the process of executing a valid Will in North Carolina.
Holographic Wills Are Different
A holographic will is a handwritten Will that meets specific criteria outlined by North Carolina law. Unlike other types of Wills that require witnesses, a holographic will can be created by the testator (the person making the Will) without needing witnesses.
To ensure the validity of a holographic will in North Carolina, it must meet certain requirements. The holographic will must be entirely written in the testator’s own handwriting. This means that the testator themselves must write every word, phrase, and provision.
The testator must sign the holographic Will or write their name in or on the Will using their own handwriting. This signature or name subscription serves as a confirmation of their intention and authorship.
While the holographic Will must be entirely in the testator’s handwriting, the presence of other words or printed matter on the same paper does not invalidate the Will. The holographic Will remains valid as long as the additional content does not alter the meaning of the words written by the testator.
No Witnesses Required
One unique aspect of a holographic will is that it does not require witnesses. Unlike other types of Wills, such as attested written Wills, holographic wills can be created by the testator alone, without the need for others to witness their signature or validate the document.
Probating a holographic will refers to the process of presenting the Will to the court for validation and acceptance. A holographic will can be probated in North Carolina if at least three competent witnesses testify that the Will is entirely written in the testator’s handwriting.
While witnesses are not required to sign the Will, witnesses are necessary to prove the Will is valid. Additionally, they must confirm that the testator’s name on the Will matches their handwriting. This testimony is crucial in establishing the authenticity and validity of the holographic Will.
Why Write a Holographic Will in NC?
Holographic wills can provide a practical option when formal witnessing may not be feasible or necessary. They offer individuals greater flexibility in expressing their final wishes and can serve as an immediate solution in urgent circumstances.
Holographic Wills Do Not Carry the Same Legal Force
However, it is essential to understand that the absence of witnesses may lead to challenges or disputes during the probate process. Interpreting the testator’s intentions or resolving ambiguities may become more complicated without witnesses to provide clarity. Often, without witnesses giving direction, ambiguities can lead to litigation over how to interpret the meaning of provisions written without the assistance of professionals.
A Holographic Will is More Likely to Bring a Challenge in Probate Court
A holographic will is a handwritten Will. A testator creates this legal document without the need for witnesses.
In North Carolina, it must meet specific requirements to be considered valid. While holographic wills offer flexibility and convenience, individuals should carefully consider the potential challenges that may arise from a self-proving will during probate.
Seeking professional advice from an experienced estate planning attorney can ensure that your holographic Will adheres to all legal requirements and effectively expresses your final wishes, providing peace of mind for you and your loved ones.
Our Experienced Estate Planning Attorneys Can Help
At Hopler, Wilms, and Hanna Law Firm, we understand that writing a will can feel like a daunting task, but it doesn’t have to be. Our team of experienced estate planning attorneys is here to guide you through the process and help you create a valid and enforceable Last Will & Testament in North Carolina.
By following the legal requirements and incorporating the necessary language, you can protect your wishes and ensure your loved ones’ future. Don’t put off this essential task any longer – let us assist you in securing your legacy and providing peace of mind for the future.
Contact Hopler, Wilms, and Hanna Law Firm today and take the first step towards creating a legally sound NC Will.