Wills

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A will is a legally enforceable declaration of how you want your property to be distributed at death. A will is a blueprint that guides the executor in distributing an estate. A will allows you to decide who shall receive your property and what share they will receive. The testator Purpose of a will Witnesses Self-proved wills Unwitnessed wills Choosing your personal representative Special concerns Storing your will Amending a will Revoking a will Effect of divorce Moving to a new state Owning property in another state Property passing outside the will Costs of preparing a will The disadvantages of writing your own will

The testator

A person who makes a will is called a testator. When a person dies leaving a will, he or she is said to have died testate. A person who dies without a will dies intestate.

In North Carolina, any person of sound mind, at least 18 years of age, may make a will.

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Purpose of a will

There are many reasons why it is important to have a will as part of your estate plan. A will allows you:

• to transfer assets to the beneficiaries of your choice;
• to designate a guardian for your minor child or children;
• to have assets managed until a minor child reaches a responsible age;
• to designate a personal representative (executor) of your choice; and
• to control how your estate is settled.

People who don't have wills often justify their decision based upon myth and lack of information. The following table lists reasons people give for not having a will and the potential problems that may result from their mistaken beliefs.^[1]

A well-developed estate plan can resolve the potential problems listed in the table.

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Witnesses

Wills should be signed by at least two persons (preferably three) who witnessed either the signing or the testator's acknowledgment of the signature. A beneficiary under the will, or a possible beneficiary under the will, should not serve as a witness.

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Self-proved wills

A "self-proved will" has two (preferably three) witnesses who sign an affidavit (sworn statement) at the end of the will which is notarized. The notarized affidavit signed by the witnesses makes the will self-proved. A self-proved will eliminates the need to locate the witnesses at the time of probate because their notarized sworn statements are part of the will. This provision can save time and money in settling the estate, and in the event witnesses cannot be located, it can mean the difference between dying with or without a will.

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Unwitnessed wills

A holographic will does not have to be signed by witnesses. This type of will is handwritten by the testator. To be valid in North Carolina, a holographic will must be entirely in the decedent's handwriting and signed by the decedent. In addition it must be found among valuable papers or effects, in a place of safe keeping, or in the hands of a person entrusted with its safekeeping.

Before a holographic will can be probated, the personal representative must have three witnesses identify the decedent's handwriting and one witness testify that the will was found among valuable papers or effects, in a place of safe keeping, or in the hands of a person entrusted with its safekeeping. Holographic wills are not recommended for many reasons, including the difficulty of proving the will in court.

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Choosing your personal representative

The term "personal representative" is the generic term for the person who settles your estate. If you name someone in your will to settle your estate, you name an "executor." If the court appoints someone to settle your estate, the person is called an "administrator."

Duties of the personal representative include:

• offering and proving the will in probate court;
• collecting and inventorying property in the estate;
• paying bills and collecting debts;
• filing tax returns;
• managing the estate property for as long as it is in probate;
• defending or bringing lawsuits on behalf of the estate; and
• distributing the assets of the estate to the people legally entitled to receive them, either under the terms of the will or under the rules of Intestate Succession.

Some factors to consider in choosing your personal representative:

• Does he or she have the ability to do the job? For example, if your probate estate will consist of investment property, does your choice have experience in managing investments?
• Is it convenient? You can name someone who lives in Oregon, but will he or she be able to do what is necessary for an efficient and smooth administration of your estate?
• Is your choice willing to do the job? Ask permission before naming someone as your executor. If your choice is unwilling to do the job, you will have the opportunity to choose someone else.
• Does your choice have the ability to keep peace among family members?
• Does your choice meet the legal requirements for qualifying as a personal representative?

No person is qualified to serve as a personal representative who:

• is under 18 years of age;
• has been declared legally incompetent and remains under such disability;
• is a convicted felon;
• is a nonresident of North Carolina, unless he or she has appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate;
• is a corporation not authorized to act as a personal representative in North Carolina;
• has lost his or her rights under North Carolina law that bars property rights;
• is illiterate;
• is a person whom the clerk of superior court finds otherwise unsuitable; or
• is a person who has renounced his or her right to act as personal representative.

It is a good idea to name one or more alternates in the event your first choice cannot or will not serve as your personal representative.

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Special concerns

Special concerns that may need to be addressed in your estate plan include:

• providing for minor children;
• providing for after-born or after-adopted children;
• designating alternate beneficiaries;
• defining the powers of the executor and trustee;
• apportioning death-related taxes;
• survivorship clauses;
• multiple marriages and children from prior marriages;
• disabled or handicapped family members;
• pending divorce;
• heavy personal or business debt;
• land owned outside North Carolina;
• long-term care;
• value of gross estate exceeding the amount sheltered from tax by the unified credit;
• life insurance policies that increase the value of the taxable estate; and
• family-owned business or farming operation.

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Storing your will

You must keep the original of your will in a safe place because it is your original will that must be offered for probate at your death. Your original will is the one you signed.

Your options for storing your original will include:

• the depository in the office of the clerk of superior court in your county;
• a safe deposit box;
• in a safe place in your home; or
• with your attorney.

If you store your original will with the clerk of court in your county, and you move to another county or another state, you should retrieve your will and move it with you.

If you store your will in a safe deposit box, your family may be delayed in retrieving it, either because the bank is closed or they haven't thought to look there. Safe deposit boxes are no longer frozen on the death of a person who has access, so the main disadvantage of storing your will in a safe deposit box no longer exists.

If you store your will at your home, you risk having it lost or inadvertently destroyed. You also risk that someone who will not be happy with your will may alter, destroy, or conceal it. While altering, destroying, or concealing a will is illegal, proving this occurred can be difficult, if not impossible.

If you store your original will with your attorney, ask your attorney what will happen to your will if he or she should die, quit practice, or move away.

Regardless of where you choose to store your will, make sure that someone knows where it can be found at your death.

You will want to review your will periodically to ensure that it stays current. Keeping a copy of your original will in a secure, but accessible place, makes it easier to review on a regular basis.

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Amending a will

You can amend your will with a "codicil." A codicil should be signed and witnessed the same way a will is signed and witnessed, and preferably made self-proved. Don't draw a line through a paragraph or write the word "omit." Writing extra words on lines will not accomplish the desired changes either. Such actions may make the will invalid.

If changes are to be made, it is best to have a codicil prepared by an attorney, and have it signed and witnessed with the same formalities of a will. If major changes are desired in a will, it may be better to revoke it and make a new one.

A will should be reviewed periodically, especially when there are changes in family or financial situations. Such circumstances include, but are not limited to:

• marriage, remarriage or divorce occurring after the will was written;
• birth of a child;
• death of a beneficiary;
• moving to another state;
• acquiring additional property;
• substantial increase in the value of property; and
• passage of federal or state laws affecting death taxes or estate planning.

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Revoking a will

You may revoke your will by the following methods:

• Signing a new will or codicil; or
• Destroying your will with the intent to revoke it.

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Effect of divorce

A divorce after a will has been written does not revoke the will. The divorce does, however, revoke all provisions in the will in favor of the divorced spouse. Caution: Before the final decree of divorce has been entered, each spouse retains his or her rights to the other spouse's property, unless the parties have entered into a property agreement settling those rights. If you are involved in a divorce proceeding, ask your attorney about what you can do to protect your property in the event you die before the final decree of divorce has been entered.

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Moving to a new state

If you move to a new state, your North Carolina will may or may not be valid in the new state, depending upon that state's laws. Have your will reviewed by an attorney in the new state to see if your will conforms with local law. Conversely, if you move to North Carolina and you have a will from another state, have a North Carolina attorney review your will to see if it conforms with North Carolina law.

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Owning property in another state

If you own land in another state and your domicile (legal residence) is in North Carolina, North Carolina does not have jurisdiction to probate land located in another state. The land must be probated in the state where it is located. Your will can include provisions for dealing with land located in another state to make it easier for your executor. Your attorney can also discuss options for avoiding the second probate.

If you own personal property located in another state, North Carolina has jurisdiction because personal property can be relocated to North Carolina.

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Property passing outside the will

Certain property will not be affected by your will because the form of ownership has already determined who will own the property at your death. Property owned by husband and wife in "tenancy by the entirety" is owned, after the death of one, solely by the survivor. If property is owned by two or more persons in "joint tenancy with right of survivorship" the survivor takes all. Proceeds of insurance policies, pension funds, U.S. Savings Bonds, P. O. D. (payable on death) deposits or other assets where a beneficiary is named cannot be disposed of by a will unless the estate is named as beneficiary.

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Costs of preparing a will

Fees for legal assistance vary, depending on the size of the estate and the complexity of the will. Some law firms may have a set fee for the preparation of a simple will, many do not. Attorneys usually base their fees on the length of conference time with the testator and the amount of time it takes to draft the will. Do not hesitate to ask an attorney for an estimate of the fee for preparing a will, preferably at the first meeting.

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The disadvantages of writing your own will

You have the legal right to be your own lawyer and write your will. However, do-it-yourself wills may create problems. Many words have special meaning in the law that may not be obvious to a layperson. If you don't know what the words mean, your will may have consequences you never intended. An attorney can help make sure that your will and estate plan accurately reflects your intentions. Note: Although you may write your own will, it is illegal to write someone else's will.

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Note 1. Table is reprinted from: Schwab, C.A. "Planning the Simple Estate." General Practice Deskbook, 2^nd Ed., North Carolina Bar Foundation, 1998, Vol. II, pg. 45. Return to text.

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References to North Carolina General Statutes:
28A-4-1. Order of persons qualified to serve.
28A-4-2. Persons disqualified to serve as personal representative.
28A-5.1. Renunciation by executor.
28A-5-2. Renunciation of right to administer.
28A-6-1. Application for letters, grant of letters.
28A-8-1. Bond required before letters issue; when bond not required.
28A-13-3. Powers of a personal representative or fiduciary.
28A-13-4. Continuance of farming operations of deceased persons.
28A-13-7. Powers and duties of successor personal representative.
28A-13-10. Liability of personal representative.
28A-14-1. Notice for claims.
28A-14-1.1. Validation of certain claims.
28A-14-2. Proof of notice.
28A-14-3. Personal notice to creditors.
28A-14.1. Assets of the estate generally.
28A-18.1. Survival of actions to and against personal representative.
28A-20-1. Inventory within three months.
28A-21-1. Annual accounts.
28A-21.2. Final accounts.
28A-22.1. Scheme of distribution; testate and intestate estates.
28A-22-2. Shares of after-born and after-adopted children.
28A-22-7. Distribution to parent or guardian of a minor.
28A-24-1. Disposition of property where no sufficient evidence of survivorship.
28A-24-3. Joint tenants or tenants by the entirety.
28A-24-5. Article does not apply if decedent provides otherwise.
28A-26-1. Domiciliary and ancillary probate and administration.
28A-26-3. Ancillary administration.
28A-27-2. Apportionment.
28A-28-1. Summary administration where spouse is sole beneficiary.
31-1. Who may make a will.
31-3.3 Attested written will.
31-3.4. Holographic will.
31-3.5. Nuncupative will.
31-5.1 Revocation of written will.
31-5.3. Will not revoked by marriage; dissent from will made prior to marriage.
31-5.4. Revocation by divorce or annulment; revival.
31-5.5. After-born or after-adopted child; illegitimate child; effect on will.
31-8.1. Who may witness.
31-9. Executor competent witness.
31-10. Beneficiary competent witness; when interest rendered void.
31-11. Depositories in office of clerks of superior court where living persons may file wills.
31-11.6. How attested wills may be made self-proved.
31-12. Executor may apply for probate.
31-13. Executor failing, beneficiary may apply.
31-18.1. Manner of probate of attested written will.
31-18.2. Manner of probate of holographic will.
31A-1. Acts barring rights of spouse.
31A-2. Acts barring rights of parents.
31A-4. Slayer barred from testate or intestate succession and other rights.

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Prepared by Carol A. Schwab, J.D., LL.M.,
Professor and Extension Specialist, NC State University.

This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.

Date: May 2000