When it comes to securing your future and ensuring that your hard-earned assets distribute according to your wishes, a well-crafted last will and testament in NC is crucial. In this comprehensive guide, we provide essential insights and expert advice to help you create a lasting legacy for your loved ones. Join us for our blog, “Last Will and Testament: NC Laws for Creating Your Legacy,” as we explore the importance of wills, the key components they should encompass, and how to navigate the legal complexities of estate planning with confidence and peace of mind.
How to Create Your Will as a Legal Document According to North Carolina Law
Creating a legally valid last will and testament in North Carolina is essential to ensure respect for your final wishes and proper distribution of your assets. To craft a will that stands up to legal scrutiny, follow these key steps:
1. Eligibility and Testamentary Capacity:
To create a valid will in North Carolina, you must be at least 18 years old and of sound mind. Testamentary capacity means that you understand the nature of your assets, the act of making a will, and its implications on the distribution of your estate.
2. Choose an Executor:
Selecting an executor is a crucial decision in your estate planning process. The executor, also called a personal representative, will carry out the instructions in your will and handle your estate’s administration. Ensure the person you choose is willing and capable of fulfilling this role efficiently. They must manage the probate estate before the probate court unless you make an estate plan to avoid probate for your family.
3. Identify Your Assets and Beneficiaries:
List all your assets, such as real estate, bank accounts, investments, personal belongings, and any other valuables. Next, identify your beneficiaries—the individuals or organizations you want to inherit your assets after your passing.
4. Drafting the Will:
While you can create a new will on your own, seeking legal counsel is highly recommended to ensure the document complies with North Carolina law and addresses any specific concerns unique to your situation. A valid will should clearly state that it is your last will, revoke any prior wills, and appoint the chosen executor.
5. Signing and Witnessing:
According to North Carolina law, your will must be signed by you, the testator, in the presence of two competent witnesses. These witnesses must also sign the will to validate its authenticity. Ideally, the witnesses should be disinterested parties, meaning they are not beneficiaries of the will.
You can also write a handwritten will or speak out loud a will upon your deathbed (holographic will), but these types of wills have different requirements. As legal documents, they invite will contestations and disagreements between other family members. As a North Carolina resident, the signed will with two disinterested witnesses makes the most sense.
And getting a notary public record is crucial to make things easier on your family, as we will see next.
6. Self-Proving Affidavit:
While not mandatory, attaching a self-proving affidavit to your will can streamline the probate process. This document is a sworn statement signed by you and your witnesses before a notary public, affirming that the will’s execution complies with legal requirements.
7. Safekeeping and Accessibility:
Once your will is properly executed, store it in a secure location, such as a fireproof safe or a bank’s safe deposit box. These days, you can also keep digital copies. Inform your executor and trusted family members or friends about the will’s whereabouts to ensure it can be easily located when needed.
8. Periodic Review and Updates:
Life circumstances can change, so it’s essential to review and update your will regularly, especially after significant life events like marriages, births, deaths, or changes in financial status.
Remember that consulting with an experienced estate planning attorney can provide invaluable guidance throughout the process, ensuring that your last will and testament adheres to all legal requirements in North Carolina and effectively reflects your wishes for the distribution of your legacy.
How to Handle Real and Personal Property
In legal language, a devise is a bequest or something you plan to give to someone else upon your death. Handling real and personal property devises in North Carolina requires careful consideration and adherence to state laws to ensure a smooth and legally valid distribution of your assets.
Here’s a step-by-step guide on how to handle these devises in your last will:
1. Distinguish Between Real and Personal Property:
The first step is to identify and categorize your assets correctly. Real property refers to land and any permanent structures on it, such as houses or buildings. Personal property includes movable items like furniture, vehicles, jewelry, and bank accounts.
2. Clearly Describe the Real Property:
When leaving real property, provide a detailed description that includes the property’s address, legal description, and any relevant identifying information. However, understand that if you own property jointly with the right of survivorship, the co-owner will automatically inherit the property. What you write in a will is not going to apply if another person inherits it automatically upon your death.
For personal property, clearly identify the items and, if possible, provide serial numbers or specific details to avoid confusion.
3. Specify the Beneficiaries:
Clearly state the names of the beneficiaries who will inherit each specific property. Be specific and include full names and relationships to avoid ambiguity.
4. Include Contingencies:
To cover potential situations, consider including contingencies in your will. For example, if a beneficiary person dies, or refuses the devise, specify an alternative beneficiary or how the property should distribute in such cases.
5. Address Jointly-Owned Property:
If you co-own real property with someone else, you’ll need to specify how your share of the property should be distributed. Keep in mind that, depending on the type of ownership (e.g., joint tenancy or tenancy in common), your ability to devise the property may be limited.
6. Seek Professional Appraisal:
It’s a good idea to have your real and valuable personal property appraised by professionals. This will help ensure that you accurately determine their current market value, preventing potential disputes among beneficiaries in the future.
7. Be Mindful of Debts and Taxes:
Consider any outstanding debts or taxes related to your real and personal property when devising them. If your estate has insufficient liquid assets to cover your obligations, it could affect the distribution of property to beneficiaries.
8. Consult an Attorney:
To avoid any pitfalls and ensure compliance with North Carolina laws, consult an experienced estate planning attorney. They can guide you through the process, explain the legal implications, and ensure your will effectively reflects your wishes for property.
9. Update Your Will as Needed:
As life changes and circumstances evolve, review and update your will periodically to account for any new property acquisitions or changes in beneficiaries’ circumstances.
10: Remaining Tangible Personal Property
Once you’ve listed all the assets you care to mention, consider naming your executor to distribute the remaining assets as they see fit. Or, name someone to inherit the remaining assets.
Properly handling real and personal property in your last will is crucial for ensuring that your assets distribute to your heirs as you intend and that your loved ones receive their rightful inheritances without unnecessary legal challenges.
Some Inheritances Pass On Without the Last Will and Testament
Be careful that your will and the beneficiaries named on your accounts agree. While creating a comprehensive last will is essential for ensuring your assets are distributed according to your wishes, it’s crucial to recognize that certain inheritances may pass outside of the will.
These non-probate assets include the following:
- Life insurance policies
- Retirement accounts
- Payable-on-death (POD) bank accounts
- Real property assets held in joint tenancy with the right of survivorship
When you designate beneficiaries for these accounts or hold property jointly with surviving spouse, the assets are transferred directly to the named beneficiaries or joint owners upon your passing, bypassing the probate process.
This means that even if your will specifies different beneficiaries for certain assets, the non-probate assets will be distributed according to the beneficiary designations on file with the account custodian.
Therefore, it’s crucial to regularly review and update your beneficiary designations to align with your current intentions, especially after significant life events such as marriage, divorce, or the birth of a child. Failure to keep these designations current may result in unintended consequences, leading to assets passing to individuals you no longer wish to benefit from your estate.
Additionally, when designating beneficiaries, consider the potential tax implications. Inherited assets can be subject to estate and income taxes, and the rules can vary depending on the type of asset and the relationship between the beneficiary and the deceased. Consulting with an estate planning attorney can help you understand the tax implications and devise a strategy to minimize tax burdens on your beneficiaries.
Remember that beneficiary designations supersede the instructions in your will.
So it’s essential to maintain consistency between the two to avoid conflicts and ensure your assets distribute in line with your true intentions. Reviewing both your will and beneficiary designations every few years is crucial to create proper estate plan workings. Regular updates ensure the preservation of your legacy and that loved ones receive their rightful inheritances.
Our Experienced Estate Planning Attorneys Can Help
Navigating the complexities of estate planning, last wills, and asset distribution can be daunting. However, you don’t have to face it alone. Our team of experienced estate planning attorneys at Plekan Law provides expert guidance, personalized advice, and peace of mind through the entire process.
Whether you’re starting your estate plan or need to update an existing one, we work closely with you to understand your unique circumstances, goals, and concerns. With our deep understanding of North Carolina’s laws, we properly document your wishes to ensure legally sound plans. We strive to create comprehensive estate plans that protect your assets, provide for loved ones, and leave a lasting legacy.
Contact us today to schedule a consultation. Take the first step toward securing your own future and the future of those you care about.