Making a Will in North Carolina

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Making a Will in North Carolina
Common Issues, Legal Requirements And Options
Presented by the Law Offices of Cherly David
April 2013
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Cheryl K. David Estate Planning Elder Law
Attorney www.cheryldavid.com
davidlawnc cherylkdavid lawofficesofcheryldavid
davidlawnc cheryl_at_cheryldavid.com
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Your Will
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WILLS ARE ALSO SOMETIMES REFERRED TO AS LAST
WILLS AND TESTAMENTS
Every capable adult in North Carolina should have
a will.
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• North Carolina has specific laws that apply
  whenever you create a will, but you can create,
  or modify, your will at any time.

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Why Bother Creating A Will?
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A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A
RANGE OF SPECIFIC PURPOSES
? Distribute property after you die
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A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A
RANGE OF SPECIFIC PURPOSES
? Nominate someone to care for your young children
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A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A
RANGE OF SPECIFIC PURPOSES
? Create a trust that will own property for young
children until they are old enough
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A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A
RANGE OF SPECIFIC PURPOSES
? Appoint someone to manage your estate during
the probate process
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North Carolina Will Legal Requirements
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ATTESTED WILLS
North Carolina law allows for three types of
wills, but by far the most commonly used and easy
to create is what is called an attested will.
Presented by the Law Offices of Cherly David
April 2013
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Legal Requirements
- Printed
Attested wills must be made in writing.
Presented by the Law Offices of Cherly David
April 2013
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Legal Requirements
- Signed
You must sign your own will or, if not capable of
signing physically, have someone else sign for
you at your direction.
Presented by the Law Offices of Cherly David
April 2013
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Legal Requirements
- Witnesses
You have to sign your will in the presence of two
competent witnesses. The witnesses should be
people who do not stand to inherit from you.
Presented by the Law Offices of Cherly David
April 2013
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Other Types of Wills
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2 OTHER TYPES OF WILLS
People in North Carolina can also create two
other types of wills, though you should never do
so unless it is impossible to create an attested
will.
Presented by the Law Offices of Cherly David
April 2013
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Handwritten Wills
Known as a holographic will, these wills are
created entirely in your own handwriting.
Presented by the Law Offices of Cherly David
April 2013
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Oral Wills
Also called a nuncapative will, these are wills
you create entirely by speaking.
They are only allowed in some very limited
circumstances.
Presented by the Law Offices of Cherly David
April 2013
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Qualifications
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CAPACITY
You can only make a will in North Carolina if
you have the legal capacity to do so.
- Adult
You must be at least 18 years old to make a will
in North Carolina.
Presented by the Law Offices of Cherly David
April 2013
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CAPACITY
You can only make a will in North Carolina if
you have the legal capacity to do so.
- Mentally sound
Only a person who is capable of reasoning and
making decisions can create a will.
Presented by the Law Offices of Cherly David
April 2013
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Mentally sound
Most people are mentally sound, but those who
have been adjudicated incompetent by a court,
those with intellectual or cognitive
impairments, as well as those with illnesses
that impact their ability to make choices, such
as Alzheimers disease, are not mentally sound.
Presented by the Law Offices of Cherly David
April 2013
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TESTATOR
The law refers to a person who makes a will as a
testator.
Presented by the Law Offices of Cherly David
April 2013
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TESTATOR
Sometimes, testator is used to refer to men who
make wills, while testatrix is used to refer to
women who make wills. In many cases the term
testator is used regardless of the persons sex.
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses
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WILL CLAUSES

• Wills can include any number of clauses. While
  state law imposes specific requirements, there
  are a range of optional clauses that, though not
  necessary to create a legally valid will, are
  very important.

Presented by the Law Offices of Cherly David
April 2013
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Will Clauses - Executor Appointment
Once you die someone will have to manage your
property and ensure that your wishes are met.
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses - Executor Appointment
- Executor
- a personal representative
- can only be appointed through your will
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses - Guardian
- Guardian
- Someone who will take over your parenting
responsibilities should you die.
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses - Guardian
If you are a parent with a young child you can
use your will to nominate a guardian.
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses Testamentary Trust
Young children cannot legally own property, so if
you have young children its also important to
create a testamentary trust so that any property
they inherit is transferred to the trust until
they are old enough to own it.
- Testamentary Trust
Presented by the Law Offices of Cherly David
April 2013
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Will Clauses Testamentary Trust
The trust, through a trustee you appoint through
your will, will manage the property for the
childs benefit.
Presented by the Law Offices of Cherly David
April 2013
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WILL CLAUSES
No two wills are identical, and only an attorney
can tell you what clauses you should or shouldnt
include.
Presented by the Law Offices of Cherly David
April 2013
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What Happens If You Dont Make a Will
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Presented by the Law Offices of Cherly David
April 2013
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The State of North Carolina Has Already Chosen
For You
Every state, including North Carolina, has
enacted laws that determine who will inherit your
property after you die.
These laws apply automatically unless you create
a will or other estate planning device that
disposes of your property in a manner you choose.
Presented by the Law Offices of Cherly David
April 2013
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Essentially, by choosing not to make a will you
choose to allow state intestacy laws to make your
choices for you.
Presented by the Law Offices of Cherly David
April 2013
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Court Battles
Dying without a will when you have minor children
is especially problematic. If this happens, the
court will have to go through the process of
selecting an appropriate guardian.
Presented by the Law Offices of Cherly David
April 2013
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If your family cannot agree on who this is it can
lead to a difficult, and sometimes lengthy, court
battle. Regardless, you will have no say over who
this person is because you failed to make a will
that nominated your choice of guardian.
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Common Questions
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Do I have to leave my family an inheritance?
Yes and no. North Carolina guarantees spouses a
portion of your estate and there is nothing you
can do to disinherit your spouse completely.
Presented by the Law Offices of Cherly David
April 2013
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Do I have to leave my family an inheritance?
However, it is possible to disinherit children,
even if they are minors.
Presented by the Law Offices of Cherly David
April 2013
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Do I have to leave my family an inheritance?
Doing so is somewhat tricky, and you will need to
ensure your will specifically addresses each
child and states that you choose not to leave an
inheritance.
Presented by the Law Offices of Cherly David
April 2013
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Can I change my will after I make it?
Some people, after making a will, believe that by
choosing to leave people an inheritance they are
legally obligated to leave that person the
inheritance specified in the will.
Presented by the Law Offices of Cherly David
April 2013
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Can I change my will after I make it?
This is NOT TRUE. Wills are not contracts, and
you can revoke your will or change its terms at
any time.
Presented by the Law Offices of Cherly David
April 2013
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3 Primary Ways to Change Your Will
Revocation You can destroy your will, effectively
cancelling your inheritance choices. You can do
this at any time as long as you are mentally
competent. New will You can create a new will
with completely new terms and direct that the old
will is no longer valid. Codicil A codicil is a
written document that amends your current will
without revoking it or rewriting it. It too must
be made in writing and meet the same requirements
a will must meet.
Presented by the Law Offices of Cherly David
April 2013
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Final Thoughts
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Do Not Delay
Presented by the Law Offices of Cherly David
April 2013
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Do Not Delay
Choosing to make an estate plan is one of the
most important things you can do to help your
family should the worst happen. While
procrastination is common, act quickly because
you never know what will happen tomorrow.
Presented by the Law Offices of Cherly David
April 2013
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A Beginning, Not an End
Getting started with estate planning is always a
good choice to make, and creating a will is a
good place to start. But a will is not enough to
meet all of your estate planning needs. Other
documents accomplish different purposes that
wills are not suited for.
Presented by the Law Offices of Cherly David
April 2013
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A Beginning, Not an End
Medical choices. If you want to receive, or
refuse, different types of medical care should
you lose your ability to communicate you will
need to create a living will or other type of
advance directive. A will is not a suitable
device to communicate your medical
choices. Financial management. If you are
incapacitated you will also need someone to
manage your property for you, but you cannot
choose who this is through your will. Youll have
to create a power of attorney to appoint
someone. Other options. Complete estate plans
often include many additional pieces, such as
trusts, Medicaid plans, or other elements.
Presented by the Law Offices of Cherly David
April 2013
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Thank You!
Cheryl K. David Estate Planning Elder Law
Attorney
davidlawnc cherylkdavid lawofficesofcheryldavid
davidlawnc cheryl_at_cheryldavid.com