Navigating the world of wills and estate planning in North Carolina can be complex. Many wonder, “Can I write my own will and have it notarized without professional legal assistance?”
In this blog, we’ll explore the ins and outs of crafting your own will in North Carolina, the requirements for notarization, and the potential advantages and pitfalls of different approaches.
Whether you’re considering a traditional or holographic will, understanding the legal landscape is crucial to ensure your final wishes are honored and your estate is secure.
Choices for a Legally Valid Will in North Carolina
There are four types of legally valid wills accepted in North Carolina. Let’s look at the requirements for each. According to state law, there are stringent rules about how you may handle the preparation of each type.
Attested Written Will
This traditional type of will must be in writing and signed by you. It must also be witnessed by at least two people who are not beneficiaries of the will. They must sign the will in your presence.
With this type of will, it is common for the probate court to contact the witnesses to confirm the will’s validity. However, if the court can’t find the witnesses, your will may hold up the probate process.
Probate is the process your loved ones go through after you pass away to settle your estate. When things move slowly, your family does not receive their inheritance as quickly.
Holographic Will
A Holographic Will is entirely handwritten by the person creating it and signed. No witnesses are required, but the will must be found among important papers or belongings after death.
Writing this type of will can bring problems such as the following:
- Potential disputes over authenticity
- Difficulty in interpretation due to unclear handwriting or language
- Lack of witnesses needed to confirm the validity
Unlike formal wills, a Holographic Will may lack essential clauses and provisions that an experienced attorney would include, leading to potential legal complications. These challenges can make the probate process longer and more arduous for your loved ones, adding stress during an already difficult time.
Therefore, careful consideration and understanding of these potential issues are vital if you create a Holographic Will in North Carolina.
Nuncupative Will
This oral will is spoken in front of two witnesses. It’s mainly for emergencies, like when someone lies on their deathbed. The witnesses must put the will in writing within a short period after the person’s death.
The problems with a Nuncupative Will arise mainly from its oral nature. There can be misunderstandings or disputes regarding the exact words spoken, especially in an emotionally charged situation like a deathbed scene. The reliance on witnesses to accurately transcribe the will can lead to potential errors or omissions, affecting the true intention of the person making the will.
Additionally, the legal requirements for creating a valid Nuncupative Will are stringent and can easily be overlooked in a rushed situation. Overlooking issues can bring the risk that the court will declare the will invalid. Because of these challenges, a Nuncupative Will is often seen as a last resort for use only when absolutely necessary.
Self-Proving Will
A self-proving will is an attested written will that includes an affidavit signed by the witnesses. This affidavit makes the probate process easier by proving the will without requiring the witnesses to testify in court. You create a self-proving affidavit by having the document notarized with a notary public and at least two witnesses. The legal validity of wills written with notary services make legal challenges to your will less likely.
A self-proving will often makes the most sense in North Carolina due to its practical advantages in streamlining the probate court process. By including the affidavit, the will becomes “self-proved” at the time of creation, eliminating the need to locate witnesses later on and have them testify about the will’s validity. This can save valuable time and reduce potential legal complications, making it a preferred option for many.
It also adds a layer of assurance, as the signed affidavit is a sworn statement by the witnesses, making contesting the will’s validity more challenging. Overall, the self-proving will provides both efficiency and reliability, aligning well with the legal requirements and practical considerations of estate planning in North Carolina.
Each type of will has its own unique requirements to make it legally binding. Failing to meet them can lead to a court declaring a will invalid. Understand the specific guidelines for the will you are considering to ensure that your wishes are carried out according to your intentions.
Taking the time to write legal documents without ensuring their validity doesn’t make sense. If you have questions or need guidance about writing a valid will, seek legal counsel to confidently navigate the complexities of North Carolina’s will laws.
Why Create a Will in the First Place? Won’t My Property Go to My Spouse or Family?
Creating a will in North Carolina is essential to ensure your property distributes according to your wishes. When people die without a will, they die “intestate,” and their property goes to others according to North Carolina’s intestate succession laws, as outlined in Chapter 29 of the North Carolina General Statutes.
Spouse’s Share
If you’re married, the share your spouse receives depends on whether you have living parents or descendants. For example, under § 29-14, if you have no living descendants but have surviving parents, your spouse receives the first $100,000 of personal property and half the remaining assets, with the rest going to your parents.
Children’s Share
If you have children, they would typically inherit your property if you have no surviving spouse. However, the distribution can be more complex if children are from different relationships, as outlined in §§ 29-15 to 29-16.
No Spouse or Descendants
If you have no spouse or descendants, the property would be distributed to other relatives in a specific order as defined in §§ 29-15 to 29-16.
Unmarried Partners
Intestate law doesn’t recognize unmarried partners. Even if you’re in a long-term relationship, your partner wouldn’t inherit under intestate succession.
State Inheritance
If no relatives can be found, your estate would “escheat,” or revert to the state, under § 29-17.
Specific Bequests and Guardianship
Without a will, you have no control over specific bequests or the guardianship of minor children. The courts would make these decisions without input from you.
Potential Family Conflicts
Family conflicts can arise without clear guidance from a will, leading to potential legal disputes and additional stress during an already emotional time.
Intestate succession might not reflect your personal preferences or unique family dynamics. Creating a will allows you to control these critical decisions and help ensure that your assets are distributed according to your specific wishes. By consulting with an experienced estate planning attorney, you can navigate the intricacies of North Carolina’s estate laws, provide for your loved ones, and secure your legacy as you intend.
Source: North Carolina General Statutes, Chapter 29, Intestate Succession Act.
An Experienced Estate Planning Attorney Can Help
At Cape Fear Law Firm, we understand the importance of planning for the future and ensuring your loved ones are cared for.
Our knowledgeable team is well-versed in North Carolina’s estate planning laws, including intestate succession and the various types of wills. We will work with you to create a customized estate plan that aligns with your unique situation and goals.
Don’t leave critical decisions about your property, children, and legacy to chance. Contact us today, and let us help you build a plan that brings peace of mind and confidence in your future.