Making a Will in North Carolina

Common Issues, Legal Requirements And Options

Presented by the Law Offices of Cherly David

| April 2013

Cheryl K. David Estate Planning & Elder Law Attorney www.cheryldavid.com davidlawnc cherylkdavid

lawofficesofcheryldavid
davidlawnc cheryl@cheryldavid.com

Presented by the Law Offices of Cherly David

| April 2013

Your Will

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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| April 2013

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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| April 2013

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

Presented by the Law Offices of Cherly David

| April 2013

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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| April 2013

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

Presented by the Law Offices of Cherly David

| April 2013

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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| April 2013

North Carolina Will Legal Requirements

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.

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| April 2013

Legal Requirements
- Printed

Attested wills must be made in writing.

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| April 2013

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.
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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

Other Types of Wills

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.

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| April 2013

Handwritten Wills

Known as a holographic will, these wills are created entirely in your own handwriting.

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| April 2013

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

Qualifications

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

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.

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| April 2013

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.

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| April 2013

TESTATOR

The law refers to a person who makes a will as a testator.

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| April 2013

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.

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| April 2013

Will Clauses

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.

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| April 2013

Will Clauses - Executor Appointment

Once you die someone will have to manage your property and ensure that your wishes are met.

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| April 2013

Will Clauses - Executor Appointment

- Executor

- a personal representative - can only be appointed through your will

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| April 2013

Will Clauses - Guardian

- Guardian

- Someone who will take over your parenting responsibilities should you die.
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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.
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Will Clauses Testamentary Trust

- 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.

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| April 2013

Will Clauses Testamentary Trust

The trust, through a trustee you appoint through your will, will manage the property for the childs benefit.

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| April 2013

WILL CLAUSES

No two wills are identical, and only an attorney can tell you what clauses you should or shouldnt include.

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| April 2013

What Happens If You Dont Make a Will

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| April 2013

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.

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| April 2013

Essentially, by choosing not to make a will you choose to allow state intestacy laws to make your choices for you.

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| April 2013

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.

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| April 2013

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.

Common Questions

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

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

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

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

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.

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| April 2013

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

Final Thoughts

Do Not Delay

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| April 2013

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

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

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

Thank You!
Cheryl K. David Estate Planning & Elder Law Attorney
davidlawnc cherylkdavid lawofficesofcheryldavid davidlawnc cheryl@cheryldavid.com