Writing Your Own Will: How It Works in North Carolina

What is a will?

First, it’s important to understand what a will is. There are numerous estate planning documents that are used for various reasons, so knowing what the purpose of a will is can help point you in the right direction to get started creating one.

In North Carolina, a last will and testament is a legal document that allows you to decide what will happen to your property after you pass away. It’s not intended for healthcare or financial decisions while you are still alive, although there are separate estate planning documents for those purposes. A will is used to do the following:

• Designate an executor (this is the person who will manage your final affairs and wrap up any existing debts to be paid.

• List your assets (assets can include personal belongings, real estate, and financial accounts)

• Name your beneficiaries (the people who will inherit your property)

• Allocate which assets will pass to which beneficiaries (including friends, family, schools, and charitable organizations)

• Choose a guardian for your minor children (in case the other parent also passes away or is otherwise unable to have custody. You will still have to pursue an official custody order in court.

What is an example of a valid will?

There isn’t a scripted version of a will that you are required to use, but it’s always a good idea to incorporate clear language to avoid confusing language in any legal document. If there is any unclear or subjective language, your will may be declared invalid and family members may contest the will, or your wishes may not be followed. Plus, if any crucial elements are missing, the will may be deemed invalid, and it won’t serve the intended purpose.

Anyone who is of sound mind and at least 18 years old may make a will in North Carolina.

It is strongly suggested that you consult with an estate planning attorney when wanting a will prepared. However, legal services aren’t an option for everyone, so consider the following steps as a guideline for getting started with your will:

• Take inventory of your assets (list them and their locations)

• Determine if any of your assets are non-probate assets. Non-probate assets are things like insurance, stock, annuities or other policies where you have pre-designated a beneficiary or beneficiaries.

• Choose beneficiaries for all of your property that requires you to provide a name and/or address.

• Name an executor. You should also name an alternate in case your first choice is unavailable for any reason.

• Designate a guardian for minor children . You should also designate an alternate for this.

If you plan on using a will template or typing your will, make sure to follow the legal requirements of attested written wills by signing the document in front of two competent witnesses and having them sign, as well. You aren’t required to type your will, however, because North Carolina accepts three basic types of wills – attested written wills, holographic wills, and nuncupative wills.

An attested written will is a type-written, signed will that is also signed by two competent witnesses and notarized. A holographic will is handwritten and signed by the person to whom the will belongs, known as the testator. No witness signatures are required for a holographic will.

In some situations a person in North Carolina can have an oral or spoken will that is legally binding, also known as a nuncupative will. There are a few restrictions on this type of will, and it really should only be used in situations where the testator is unable to create a written or holographic will — these are valid when the testator is facing an imminent risk of death. The testator must state that it is their will and have two people bear witness to the oral will, and they must write down the testator’s instructions as soon as possible after they are given. Please also note that this type of will is never valid will exists, no matter what the intentions of the testator.

What are non-probate assets?

Not all assets need to be included in your will. Non-probate assets don’t need to be included because they aren’t required to pass through estate administration or probate.

Probate is the legal process of settling an estate and includes submitting the original will to the clerk of court for certification, having the named executor appointed and take control of managing the assets of the estate. This will include collecting and distributing assets.

Many assets are considered probate assets, meaning they must go through the estate administration process in order to be passed to the appropriate beneficiary. However, North Carolina may classify the following property as non-probate assets in certain scenarios:

• Life insurance policies

• Bank accounts

• Retirement benefits

• Investment funds

• Trusts

Some accounts allow you to name a beneficiary with the financial institution or establish transfer-on-death terms, in which case you will likely not need to include those assets in your will.

What is the difference between a will and a simple will?

The complexity of the estate planning process is often cited as a reason people procrastinate in creating a will. If this has been stopping you from starting this process, you have the option to create what’s known as a simple will. This legal document is a pared-down version of a complex will and is often best suited for testators with no dependents and few assets.

Simple wills are sufficient for many people, but knowing which one is right for you can be difficult without a thorough understanding of estate and probate law. If you’d like to discuss which type of will is the best option for you, contact North Carolina Legal Services.

FAQs About Wills in North Carolina

When is the best time to make a will?

Aside from the legal requirement that you must be 18 years old or older to make a will, there are no age restrictions. Many people wait until they’re older to start thinking about estate planning, but this is a mistake. There is no way to predict when you will need to have an estate plan in place, so starting earlier is usually recommended. If you don’t already have a will, the best time to make one is now.

Is a living will the same thing as a will?

No, a will and a living will are two very different things. In North Carolina, an Advance Directive for a Natural Death is more commonly referred to as a living will. A living will is used to designate how you want certain healthcare decisions to be made if you are unable to make them yourself. For example, if you are unconscious and doctors are uncertain when you will awaken, a living will can be used to inform the medical staff of your life support choices.

Can I have a trust and a will in North Carolina?

Yes, you can create both a trust and a will. While these estate planning instruments serve some similar purposes, there are distinct differences. Most trusts do not pass through probate, while wills must go through probate to be determined valid. Trusts are complex but offer various benefits that wills do not. If you think your estate would benefit from establishing a trust, you may wish to speak with an attorney about the advantages and disadvantages of this option.

Is a handwritten will good enough?

Handwritten wills might be considered valid if they are written completely by the testator. Additionally, the testator must either sign or write their name on the will. One concern with handwritten wills is the increased risk of disputes, but North Carolina does accept this type of will if it meets the statutory requirements.

Are online wills legitimate?

When you use an online template for your will, you run the risk that required provisions or important terms will be missing. With that being said, online wills may be valid in some situations. It’s important to note that North Carolina requires wills to be signed by the testator and two competent witnesses in order to be legitimate. So, if you use an online will, you cannot simply fill out the template and save a digital version; it must be printed, signed, and witnessed according to state law.

Do you need an estate lawyer when creating a will?

North Carolina does not require you to work with an attorney to create your will. However, having a lawyer to help you navigate the complex estate planning and probate laws is beneficial. North Carolina Legal Services is client-focused and dedicated to lowering the barrier to quality legal services. Contact us today to schedule a consultation.