“Thank you so much for all you did for me this past year. You made that difficult period much easier, knowing that my girls would be okay regardless of what happened.” – L. Sorrells (client).
A will is a written direction controlling the distribution of your property upon your death. Without a will, state law will determine what happens to your property.
The following questions and answers are intended to offer some general background information on wills in North Carolina. If your questions are not answered here, please contact us for a consultation.
- Who may make a will?
- What happens if I die without a will?
- Is a life insurance program a substitute for a will?
- Can a will be changed?
- How long is a will valid?
- Should I include funeral instructions in my will?
- Must my will leave something to my spouse and children?
- What can a lawyer help with?
- Does a will increase probate expenses?
- Can I write my own will?
- What if I move?
- Where should a will be kept?
In North Carolina, the following conditions apply:
- You, the maker of the will (called the testator), must be at least 18 years of age.
- You must be of sound mind at the time of signing and not be under undue influence, duress, or fraud of another person.
- Your will should be written.
- Your will must be witnessed in the special manner provided by the law for wills.
- You must follow exactly the formalities required for the execution of a will.
What happens if I die without a will?
State law will determine what happens to your property. Generally, it will go to your spouse and children, or if you have neither, to other relatives according to the inheritance statute, a formula fixed by law. This formula is rigid and doesn’t make exceptions for those members in unusual need. If you do not have a will, the court will not know your preferences as to who should care for your children. It also is often more expensive to probate your estate without a will.
Is a life insurance program a substitute for a will?
No. A life insurance beneficiary only receives the life insurance benefit. The policy will not determine how the rest of your property will be distributed.
Yes! A will has no effect during your lifetime: it speaks only at death. Prior to this time a will can be changed and even revoked. If changes are to be made, an amendment (codicil) is a supplement to the existing will and must follow the same formalities. If major changes are desired, it is best to revoke your will and make a new one. A will should be reviewed periodically if there have been changes in family or financial situation that would warrant an adjustment to the existing will. Examples of these changes include:
- Marriage, remarriage, or divorce after the will was written.
- Birth of a child.
- Death of a beneficiary.
- Acquiring additional property.
- Substantial increase in the value of property
Wills should also be reviewed to determine that it is still valid – as laws change over time.
It is valid until it is revoked in the manner required by law.
Should I include funeral instructions in my will?
It is best to have funeral instructions in another place. A will is not effective until it has been approved by the clerk of court and recorded. This usually happens several days after the funeral of the person making the will.
Must my will leave something to my spouse and children?
Spouse: Neither a husband nor a wife may disinherit a spouse. The law gives a surviving spouse a choice to take his or her share under the will or to dissent from the will and take the share provided by law.
Children: It is legal to disinherit a child, but a lawyer can help you with this to be sure there is no misunderstanding of your intent.
A lawyer can help with questions such as:
- What property will actually go through my will?
- What property will not be divided up according to my wishes in my will?
- How can I make sure my children are cared for?
- How can I leave something to my disabled loved one without jeopardizing their public benefits?
- How can I make sure my executor and my family follow my wishes?
- What effect does divorce have on a will?
- Should my executor be bonded with an insurance policy?
- What if people I leave my property to die at the same time or before I do?
Does a will increase probate expenses?
No. A will frequently reduces expenses, including legal fees. If you have no will, your family must go to court to administer your estate or to obtain a determination that administration is unnecessary.
In North Carolina, you can have a will that is entirely in your own handwriting, which is referred to as a holographic will. It is wise to obtain legal advice before doing so ensure that you correctly write out your wishes. The writing of a will requires professional judgment and a lawyer can help you avoid the potential pitfalls and advise the course best suited for each situation.
It is best to have your will reviewed by a lawyer (in the state you are moving to) in order to be sure that it is properly executed according to the laws of the state.
After a will is drafted, store it in a safe place with your important papers. The original copy of the will should not be left in a desk drawer or other place where it could be stolen or destroyed. Some alternatives include filing the will with the Clerk of Superior Court in your county. A copy of your will (not the original) should be placed in your safety deposit box.
