Creating a will is essential in securing your legacy and ensuring that your assets go to your intended beneficiaries. While a will outlines your final wishes, not all items belong in this document. Some inclusions can cause unnecessary complications, legal challenges, or even invalidate your will. So, let’s see what you should never put in your will and ensure your estate plan holds up under North Carolina law.
Who Can Create a Will? What Types of Wills Can I Write?
Any person of sound mind and 18 years of age or over may make a will. You may include personal property and real property in your last will. The person who writes a will is the “testator.” Those who receive gifts or inheritances are the “heirs” or “beneficiaries.”
However, writing your own will falls under specific state laws in Chapter 31 of the NC General Statutes.
Attested Written Will
An attested written will is a written document that outlines how a person wants their assets handled after they die. The person making the will, also known as the testator, must sign the will. If they can’t sign it themselves, they can have someone else sign for them, but it has to happen in front of them and because they ask for it.
After the testator signs, at least two other people who are competent and understand what’s happening must also sign the will. These people are called “witnesses.” The testator has to make it clear to the witnesses that the document they are signing is indeed their will.
The witnesses must sign while the testator is there, but they don’t have to be together when signing.
Self-Proving Wills
If you have an attested will notarized, this gives it an extra layer of credibility in the eyes of a probate court. This “self-proving will” can help to prevent will contestations and family discord.
In North Carolina, a self-proving will comes with a special statement signed by the testator and the witnesses. This statement is usually a notarized affidavit. Making a will “self-proving” aims to speed up the probate process.
In essence, the affidavit acts as a kind of pre-verification, confirming that the will is legitimate and that all parties signed it voluntarily and while of sound mind.
The testator and witnesses must go to a notary public to create a self-proving will in North Carolina. After signing the will, they each also sign this separate affidavit in front of the notary, affirming that they followed all the proper steps for making a will. The notary will then stamp or seal the document, making it self-proving.
Without using an affidavit process, the probate court will ask your witnesses to validate your will as authentic after you pass away. A self-proving will eliminates the need for your witnesses to appear in probate court to validate the will, making the probate process faster and simpler.
Holographic Will
The holographic will is not as valid to a court as an attested will. For this will to be valid, you must write entirely in your handwriting and sign your name in your handwriting. There is no need for attesting witnesses with this type of will. Even if there are other words or printed matter on the page that don’t affect the meaning of your will, your will is valid.
Nuncupative Will
You may make an oral will for your personal property if you are in your last sickness or imminent peril of death and do not survive. You may declare this will before two competent witnesses you specifically request to bear witness and who are simultaneously present at the making of your oral will.
What Not to Include in a North Carolina Last Will
1- Clauses that Violate Spousal Rights
North Carolina law protects the rights of surviving spouses. A will that attempts to completely disinherit a spouse may run afoul of legal protections like the “Elective Share,” which allows a surviving spouse to claim a portion of the deceased spouse’s estate. If your will contradicts these state protections, the courts will likely override those provisions.
2- Jointly Owned Property with Right of Survivorship
The property you own jointly with someone else with a right of survivorship will automatically pass to your co-owner upon your death. It will not go through probate proceedings. Married couples in North Carolina own property together as tenants by the entirety. Joint tenancy is another form of joint ownership where the surviving co-owner automatically inherits the real property.
Including such property in your will creates unnecessary confusion, as these types of joint ownership will trump whatever your will states.
3- Assets or Property Held in Trust Funds
Assets held in living trusts or other types of trusts are not part of your probate estate.
Therefore, mentioning them in your will has no effect; the terms of the trust will govern their distribution. Including them in your will could create confusion and complications during probate.
4- Non-Specific Gifts
Avoid using non-specific terms like “my valuables” or “my belongings” without clearly defining what those terms include. Non-specific or overly broad terms may lead to disputes among beneficiaries, as they can be open to interpretation. Be clear and specific about what you’re leaving and to whom you’re leaving it.
5- Personal Opinions or Offhand Remarks
Your will is a legal document, not a forum for sharing personal opinions or comments that could be misinterpreted or cause emotional distress to your loved ones. Such remarks can create ill will among family members or beneficiaries, leading to legal challenges against the will’s validity.
6- Illegally Acquired Personal Property
North Carolina law doesn’t allow you to bequeath property that you don’t legally own. If your will includes items you’ve obtained illegally, it may lead to legal complications for your beneficiaries. This can result in removing such items from the will or even a full invalidation of the will itself.
7- Instructions for Organ Donation or Funeral Arrangements
Although you may wish to include your desires for organ donation or funeral wishes in your will, North Carolina law generally requires that these instructions be kept separate.
A will often gets read days or even weeks after death, making it an impractical place for time-sensitive matters. Communicating these wishes through a healthcare power of attorney or living will is better.
8- Beneficiary Designations for Pets (You Can Name Them in a Trust)
North Carolina law doesn’t recognize pets as entities capable of owning property. As much as you might consider your pet a family member, leaving money directly to them in your will won’t work. Instead, consider setting up a pet trust or entrusting a reliable friend or family member to care for your pet.
9- Provisions That Encourage Illegal or Immoral Acts
Any clause in your will that encourages someone to commit an illegal or immoral act will not be enforceable in North Carolina. For example, you can’t condition a beneficiary’s inheritance on them committing a crime. Courts will either remove the specific provision or, in extreme cases, could invalidate the entire will.
10- Vague or Ambiguous Language
Vague or ambiguous wording can lead to misunderstandings and potential disputes among your beneficiaries. North Carolina courts may have difficulty interpreting your intentions, which could lead to delays in probate or unwanted distribution of your assets. Clear, concise language helps ensure that your wishes get carried out as you intend.
11- A Witness Who is Also a Designated Beneficiary
In North Carolina, allowing a witness who is also a beneficiary to a will can jeopardize its validity. North Carolina law specifically states that a beneficiary should not act as a witness. If a witness is also a beneficiary, this dual role can create a conflict of interest that may cast doubt on the impartiality of the witness.
Courts may question whether undue influence or coercion took place. In such cases, the will could face challenges, potentially leading to legal disputes that can delay the distribution of assets and cause emotional stress for the family. Therefore, to ensure that a will stands up to legal scrutiny, it is advisable to have witnesses who are not beneficiaries.
12- Assets that Automatically Transfer on Death
Many types of assets in North Carolina transfer immediately upon death and avoid the probate process. Examples of these types of property that avoid probate and pass directly to beneficiaries include:
- Life insurance policies
- Retirement accounts
- Trust property
- Joint Bank accounts with the right of survivorship
- Certain types of assets that have a named beneficiary designation
Property included in a will that already has a beneficiary designation can create confusion or even frustration between family members.
For example, let’s say you list your 15-year-old first daughter as the sole named beneficiary of your life insurance policy. You then marry at age 55 and name your stepdaughter as the sole heir of the life insurance policy in your last will. However, you forgot to change the beneficiary designation on the policy itself!
When the will is read a month after your death at age 75, your stepdaughter thinks she has inherited your life insurance policy. She is thrilled you provided for her since she is only 20. However, your first daughter, now 45, has already received the check. Now, the older daughter must decide whether to share the money with her step-sister. If she doesn’t share, their relationship could be ruined.
Blended family issues often create a need to review your will and beneficiary designations!
Because your beneficiary designations on these types of assets transfer on death, naming them in your will can bring confusion and hurt feelings.
13- Government Benefits
As in many other states, incorporating government benefits into your will can lead to unintended consequences in North Carolina. Here’s why you should steer clear of doing so.
Many government benefits are non-transferable, meaning they are meant specifically for you and cannot be passed on to someone else. Including such benefits in your will can be futile and may even put your other legitimate bequests under scrutiny.
If you incorrectly list government benefits in your will, the probate court may have to spend additional time sorting out the legality, which can delay the distribution of your assets. Your heirs may need legal help to navigate these complexities, resulting in unnecessary costs.
Listing government benefits in your will might give the wrong impression that these can be transferred or inherited. This could unintentionally encourage unlawful attempts to claim these non-transferable benefits, putting your loved ones at risk of legal trouble.
14- A Lump-Sum Inheritance for Needs-Based Benefits for Heirs
It’s crucial to consider the impact of a lump-sum inheritance on heirs receiving needs-based government benefits like Medicaid or Supplemental Security Income (SSI).
Providing a large lump sum can disqualify them from these programs, at least temporarily. Many of these programs have asset limits, and a sudden increase in wealth could mean your heir exceeds those limits.
Consequently, they might have to spend down the inheritance to regain eligibility, negating the financial benefit you intended to provide.
Instead of a lump-sum inheritance, consider alternatives like a Special Needs Trust. This legal arrangement allows you to leave assets to a loved one with special needs without jeopardizing their eligibility for government benefits.
An attorney well-versed in North Carolina estate law can guide you through setting up such a trust, ensuring you meet your family’s needs without unintended financial pitfalls. This approach ensures that your loved ones can continue to receive their much-needed benefits while also enjoying the extra financial support you provide.
Professional Guidance is Key
Consulting with an experienced attorney familiar with North Carolina law can help you avoid these pitfalls. They can guide you in crafting a will that respects both your wishes and the legal constraints around government benefits.
By understanding these factors, you can make informed decisions about what to include—and what not to include—in your last will and testament.
Talk With Your Estate Planning Attorney to Create a Valid North Carolina Will
Drafting a will is a complex process. Consult with our knowledgeable estate planning attorneys at Plekan Law to ensure you’re on solid ground when outlining your wishes for asset distribution, choosing executors, and setting up any trusts or special provisions.
Navigating the intricacies of North Carolina state law without professional guidance can lead to costly mistakes and legal challenges, potentially putting your estate plan and your family’s well-being at risk. Our team can help you avoid common pitfalls, like inadvertently disqualifying heirs from needs-based benefits, and can provide tailored solutions that respect both your wishes and the law.
Ensure your last will and testament stands up to scrutiny and reflects your intentions by getting the expert advice you need. Contact us at Plekan Law today and know that you’ve planned the best future for your loved ones!