What are the Requirements of a Valid Will in North Carolina?

In North Carolina, creating a valid Will is essential to ensuring your property is distributed according to your wishes after you pass away. If you die without a valid Will in North Carolina, statutory rules, known as the North Carolina intestacy statutes, will control who receives your property.

This article answers common questions about North Carolina’s legal requirements for Wills, including what makes a Will valid, whether notarization is necessary, and the role of self-proving affidavits.

• What makes a Will Legally valid in North Carolina?
• Are oral wills valid in North Carolina?
• Is it necessary to notarize a Will in North Carolina?
• What is a self-proving affidavit?
• What happens if the Will is not valid?

Requirements of a Valid in North Carolina?

For a written Will to be legally valid in North Carolina, it must meet the following requirements:

1. The testator must be at least 18 years old and of sound mind.
2. the testator must intend that the writing outline how they want to distribute their property after they die.
3. Legal formalities must be followed and vary depending on the type of Will:
   • Holographic Wills are handwritten wills. To be valid, it must be completely in the testator’s own handwriting and signed by the testator. Witnesses don’t need to sign a holographic will.
   • Attested Wills are written Wills that are not completely in the handwriting of the testator. To be valid, the testator must sign the Will personally or direct another person to sign it in the testator’s presence. There is also a requirement that two competent witnesses sign the Will in the testator’s presence after either witnessing the testator sign the Will or after the testator expresses to them that he previously signed the Will.

What is Sound Mind for a Will in North Carolina?

To create a valid Will in North Carolina, the testator must be of “sound mind” at the time the Will is made. Being of sound mind doesn’t require the testator to have perfect mental clarity. Instead, they must simply possess enough understanding to make coherent and informed decisions about their estate at the moment the Will is signed

To be of sound mind the testator must have the mental capacity to understand and appreciate the following:

• The Nature and Extent of Their Property: The testator must be aware of what they own, including real estate, personal belongings, bank accounts, investments, and other assets.
• The Natural Objects of Their Bounty: This legal term refers to understanding who their beneficiaries are—typically family members, friends, or organizations the testator wishes to leave their property to.
• The Disposition They Are Making: The testator must comprehend how they want their property distributed and the consequences of these decisions.
• The Legal Effect of Signing the Will: The testator must recognize that by signing the Will, they are formalizing their intentions regarding the distribution of their estate upon death.

Those who lack mental capacity cannot make a Will.

Are Oral Wills Valid In North Carolina?

Oral Wills are also known as nuncupative Wills. North Carolina allows nuncupative Wills only in rare circumstances and only to pass limited personal property.

Specifically, an oral Will is valid only if:

• the person making the Will has a terminal illness or is in imminent peril of death and does not survive the illness or imminent peril; and
• at least two competent witnesses simultaneously hear the statement after the testator specifically asks them to bear witness to the statement.

Is it Necessary to Notarize a Will in North Carolina?

No, notarization is not required for a Will to be valid in North Carolina. A Will that meets all statutory requirements is valid, even without a notary seal.

However, the North Carolina laws give testators the option of adding a self-proving affidavit to their Will. Testators, witnesses, and a notary have to all sign a self-proving affidavit.

What is a Self-Proving Affidavit?

A self-proving affidavit is a document that affirms the testator properly signed the Will. The benefit of a self-proving affidavit is that it would not be necessary for witnesses to appear in probate court to prove up the Will. This saves time and expense and is especially useful if a long time has passed and the witnesses have died or cannot be located.

What Happens if a Will is Not Valid?

If your Will does not meet all the requirements of a valid will in North Carolina, it will not be enforceable. This may result in your property passing according to the North Carolina intestate succession laws, a formula created by the state legislature that disregards your personal preferences and unique circumstances.

Wills are legal documents that allow you to specify how and to whom your property will be distributed when you die. They also allow you to nominate a guardian for your children and an executor who will administer your estate according to your wishes.

Why Work with an Estate Planning Attorney?

Drafting a Will involves more than just documenting your wishes. An experienced North Carolina estate planning lawyer can help you navigate these legal requirements to ensure your Will carries out your wishes after you die.

This article was originally published on January 22, 2022 and updated on January 25, 2025.