In North Carolina, there are several complex legal concepts related to will interpretation and inheritance that may seem daunting. Whether you are facing challenges in understanding a loved one’s will, need guidance in resolving potential disputes, or simply wish to learn more about the intricacies of the probate system, find answers here. Keep reading to learn valuable insights into how the probate process works in our state concerning the last will and testament in NC.

Ensure that the probate and estate administration process honors the wishes of your loved ones.

How Does a Probate Court Determine a Valid Will?

In North Carolina, a probate court determines the validity of a will through a structured legal process. When someone passes away, their will is submitted to the probate court for review and authentication.

The court first ensures that the document meets the necessary formalities, such as being in writing, signed by the testator (the person making the will), and witnessed by at least two disinterested witnesses. (We will cover other valid will types later) Additionally, the court verifies that the testator was of sound mind and not under undue influence or coercion when creating the will.

If there are any challenges to the will’s validity or concerns about its authenticity, the court will hold hearings and consider evidence presented by interested parties. During this process, the court also examines whether the will revokes any previous wills.

Suppose the probate court finds the will to be valid. In that case, it will grant probate, confirming the document’s legality and allowing the executor (personal representative) to proceed with administering the estate according to the testator’s wishes.

However, if the will is deemed invalid, the court may treat the estate as if there was no will, following the state’s intestacy laws to distribute the assets among the deceased’s legal heirs.

Do All Estates Go through Probate in NC?

Not all estates in North Carolina go through probate. Whether or not an estate needs to go through probate depends on various factors.

For example, suppose a deceased person had a valid will, and their assets were properly titled or had designated beneficiaries (e.g., life insurance policies, retirement accounts, joint bank accounts with right of survivorship). In that case, such property can pass directly to the beneficiaries without the need for probate. This is known as non-probate assets.

If a trust owns all the decedent’s property and assets, an estate may also bypass probate court. This is because the decedent owned no assets for the probate court to settle. Instead, the successor trustee named by the trust maker settles the estate outside of court jurisdiction.

However, if there is no valid will or if the will is deemed invalid, or if certain assets were not designated with beneficiaries, then those assets will likely need to go through the probate process.

The probate court will oversee the distribution of the decedent’s estate according to North Carolina’s intestacy laws if there is no valid will.

Additionally, smaller estates meeting certain criteria may be eligible for simplified affidavit probate procedures. This can streamline the process and make it less burdensome for the heirs. If the surviving spouse has a small amount of assets, the affidavit process can make settling the estate much easier.

As a North Carolina resident, it is essential to plan your estate carefully and seek legal advice. Understanding which assets may be subject to probate is important. It’s also wise to explore options to minimize the probate process’s impact on your estate and save your family time and money!

What Types of Wills are Valid in a Probate Estate?

In a probate estate, various types of wills can be valid, provided they meet certain legal requirements. A “holographic will” is entirely handwritten and signed by the testator but does not require witnesses in North Carolina. Another valid type is an “attested will,” which is typically prepared by a lawyer and signed by the testator in the presence of two or more witnesses.

Additionally, a “self-proving will,” involves the testator and witnesses getting the will notarized, confirming the validity of the will.

Regardless of the type, for a will to be valid, the testator must be of sound mind, and the document must meet specific formalities, such as proper witnessing and signature requirements.

What is a Bequest? Real and Personal Property Distinctions in NC

Historically, there was a distinction between

  • “Devise” (a gift of real property)
  • “Bequest” (a gift of personal property).

However, North Carolina law has eliminated this distinction.“Devisee” now refers to any person entitled to take either real or personal property under a will.

Last Will and Testament NC Interpretation

The first interpretation concept we will discuss is the classification of gifts under a will.

It is important to classify devises as specific, general, or demonstrative, as this classification determines how they are treated in certain situations.

  • Specific devise: This is a gift of a particular object. For example, a specific devise could be leaving a specific piece of jewelry to a loved one.
  • General devise: This is a gift of an economic benefit payable from the general assets of the estate. It does not entitle the beneficiary to a specific asset but rather a monetary value. For instance, leaving a certain sum of money to a family member would be a general devise.
  • Demonstrative devise: This is a general devise that is payable first from a particular property and then from other assets if the specific property is insufficient. If the devise is to be satisfied from a specific asset, it is considered a specific devise.

North Carolina Law: How Does the Estate Pay Debts and Expenses?

The next concept we will explore is abatement, which determines the order in which assets are used to satisfy debts and expenses of the deceased’s estate. Paying the debts of the decedent is one of the first orders of business when a person passes away.

According to North Carolina law, the order of abatement is as follows:

  1. Assets not disposed of by the will
  2. Residuary assets
  3. Generally devised assets
  4. Specifically devised assets
  5. A demonstrative gift is treated as a specific devise to the extent of the particular source from which it is to be satisfied and as a general devise for the remaining balance.

What If an Asset Named in the Will Does Not Exist?

Ademption is another important concept to understand. If an asset specifically devised in the will does not exist in the estate at the time of the testator’s death, the devise is considered “adeemed” and fails.

However, North Carolina courts have held that if a specifically devised asset is no longer present in the estate due to circumstances beyond the testator’s control, such as being sold or stolen, ademption may not apply or may only apply partially.

What If a Beneficiary Dies Before the Will-Maker?

Lapse refers to the situation when a beneficiary under a testator’s will dies after the will is signed but before the testator’s death. In such cases, absent a contrary intent expressed in the will or the application of the anti-lapse statute, the devise to the deceased beneficiary lapses.

North Carolina’s anti-lapse statute allows the qualified issue (children or descendants of the deceased beneficiary) to inherit the share that would have been given to the deceased beneficiary, provided they survive the testator.

If there is no qualified issue, different rules apply depending on whether it is a class gift, a non-residuary gift, or a residuary gift.

Interpretation of the Last Will and Testament as a Legal Document

What a decedent writes in a last will and testament in North Carolina affects how attorneys interpret the will.

When interpreting a will, certain canons of construction can guide us in understanding the testator’s intent. While these canons are not codified in North Carolina, they provide valuable principles:

The Intent of the Testator

The testator’s intent is the primary guide for interpreting the will as long as it does not violate any rules, laws, or public policy. There is a presumption that the testator intended to comply with the law.

In simple terms, the “Intent of the Testator” refers to the main purpose or wishes of the person who created a will (the testator). When someone writes a will, it serves as a legal document that outlines how they want their assets and belongings to distribute after their passing.

The key principle in interpreting the will is to understand and respect the testator’s intentions as long as they don’t go against any established rules, laws, or public policies. This means that if the testator’s wishes are clear and lawful, we follow them.

It is assumed that the testator intended to abide by the applicable laws when creating their will. However, let’s say that part of the will is found to be in conflict with the law or goes against public policy. In that case, that specific provision may be invalid or unenforceable. Ultimately, the primary goal is to honor the testator’s expressed desires while ensuring compliance with legal requirements.

Consider the Will as a Whole

Ascertain the intent from the entire will, considering all its provisions. Reconcile inconsistencies whenever possible, with the general intent prevailing over specific intentions.

In simple terms, the concept of “Consider the Will as a Whole” means that when interpreting a will, it is essential to look at the entire document, taking into account all the instructions and wishes laid out by the person who created it.

Other than focusing only on specific parts, the aim is to understand the testator’s overall intention. Sometimes, different sections of the will might appear to contradict each other. In such cases, the law intends us to find a way to resolve these inconsistencies. Giving priority to the overall purpose of the testator’s wishes rather than getting hung up on individual details is part of this concept.

By looking at the will in its entirety and striving to harmonize any conflicting provisions, the court or relevant parties can better ensure that the testator’s true intentions are upheld and respected during the execution of the will.

Natural Objects of Bounty

Unless there is evidence to the contrary, the law interprets the will in favor of the testator’s natural beneficiaries.

In simple terms, the principle of “Natural Objects of Bounty” means that when interpreting a will, the law tends to favor the testator’s close family members and loved ones. These are the natural beneficiaries, such as spouses, children, and immediate relatives.

Unless there is clear evidence indicating otherwise, the assumption is that the testator intended to provide for and take care of their family and those who would naturally benefit from their estate. In the absence of specific instructions or evidence suggesting a different intention, the testator’s assets and belongings will distribute among their closest and most deserving relatives.

This legal concept maintains a fair and just distribution in line with typical family expectations.

Presumption Against Intestacy

The presumption is that the testator did not intend to die without a will regarding any property.

In simple terms, the “Presumption Against Intestacy” means that the law assumes a person did not intend to pass away without a will (intestate) when it comes to their property. In other words, it is generally expected that individuals want to have control over who receives their assets and belongings after their death..

So, if someone leaves behind property without a valid will, the legal system will treat it as an exception rather than the norm. The presumption against intestacy reinforces the idea that people typically want to express their wishes regarding the distribution of their estate.

However, in the absence of a will, state law in North Carolina distributes assets according to the rules of intestate succession.

Ordinary Meaning

Ordinary words are given their usual meaning, while technical words are understood in their technical sense.

In simple terms, the principle of “Ordinary Meaning” means that when interpreting legal documents, like contracts or statutes, you interpret everyday words as understood in their regular or common usage. So, if a word has a straightforward and typical meaning that most people would understand, that’s how you interpret it.

On the other hand, if the document contains technical terms or words with specific legal meanings, you interpret those in their specialized or technical sense.

This approach helps ensure clarity and fairness in legal matters, as it relies on the normal understanding of language unless the context indicates otherwise. By using this principle, the law avoids confusion and makes legal documents more accessible to the general public.

Distribution of Assets Depends on Interpretation of the Will

Understanding these complex legal concepts related to will interpretation and distribution problems in North Carolina can provide clarity when navigating the process. By classifying gifts, considering abatement and ademption rules, understanding lapse and the anti-lapse statute, and recognizing the canons of construction, you may better understand how to interpret wills.  You may also see how a testator’s intentions affect their asset distribution.

We Can Help

If you need assistance as a beneficiary or personal representative in probate court, Hopler, Wilms, and Hanna Law Firm is here to support you throughout the entire process. Our experienced team of estate administration and probate attorneys understands the complexities of estate administration and can guide you through the legal procedures with clarity and compassion.

Whether you have questions about interpreting the will, resolving potential conflicts among beneficiaries, or navigating the probate process efficiently, we have the expertise to provide you with sound advice and representation.

At Hopler, Wilms, and Hanna Law Firm, protect your rights and help you honor the wishes of the deceased while striving to achieve a proper distribution of assets. Let us assist you during this challenging time to make the probate process as smooth and stress-free as possible.

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