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Making a Will in North Carolina

Every capable adult in North Carolina should have a will. North Carolina has specific laws that apply whenever you create a will, but you can create, or modify, your will at any time. Wills are also sometimes referred to as last wills and testaments.

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Making a Will in North Carolina

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  1. Making a Will in North Carolina Common Issues, Legal Requirements And Options Presented by the Law Offices of Cherly David | April 2013

  2. Cheryl K. David Estate Planning & Elder Law Attorney www.cheryldavid.com davidlawnc cherylkdavid lawofficesofcheryldavid davidlawnc cheryl@cheryldavid.com

  3. Your Will 1

  4. WILLS ARE ALSO SOMETIMES REFERRED TO AS LAST WILLS AND TESTAMENTS Every capable adult in North Carolina should have a will.

  5. North Carolina has specific laws that apply whenever you create a will, but you can create, or modify, your will at any time.

  6. 2 Why Bother Creating A Will?

  7. A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE OF SPECIFIC PURPOSES  Distribute property after you die

  8. A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE OF SPECIFIC PURPOSES  Nominate someone to care for your young children

  9. 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

  10. A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE OF SPECIFIC PURPOSES  Appoint someone to manage your estate during the probate process

  11. North Carolina Will Legal Requirements 3

  12. 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

  13. Legal Requirements - Printed Attested wills must be made in writing. Presented by the Law Offices of Cherly David | April 2013

  14. 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

  15. 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

  16. 4 Other Types of Wills

  17. 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

  18. 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

  19. 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

  20. 5 Qualifications

  21. 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

  22. 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

  23. 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 Alzheimer’s disease, are not mentally sound. Presented by the Law Offices of Cherly David | April 2013

  24. TESTATOR The law refers to a person who makes a will as a “testator.” Presented by the Law Offices of Cherly David | April 2013

  25. 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 person’s sex. Presented by the Law Offices of Cherly David | April 2013

  26. 6 Will Clauses

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. Will Clauses – Testamentary Trust - Testamentary Trust Young children cannot legally own property, so if you have young children it’s 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. Presented by the Law Offices of Cherly David | April 2013

  33. Will Clauses – Testamentary Trust The trust, through a trustee you appoint through your will, will manage the property for the child’s benefit. Presented by the Law Offices of Cherly David | April 2013

  34. WILL CLAUSES No two wills are identical, and only an attorney can tell you what clauses you should or shouldn’t include. Presented by the Law Offices of Cherly David | April 2013

  35. 7 What Happens If You Don’t Make a Will

  36. Presented by the Law Offices of Cherly David | April 2013

  37. 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

  38. 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

  39. 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

  40. 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.

  41. 8 Common Questions

  42. 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

  43. 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

  44. 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

  45. 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

  46. 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

  47. 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

  48. Final Thoughts

  49. Do Not Delay Presented by the Law Offices of Cherly David | April 2013

  50. 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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