What are the Requirements of a Valid Will in North Carolina?
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.
Every state has its own rules about what makes a Will valid. North Carolina is no different.
For a Will to be valid in North Carolina, it must meet North Carolina’s statutory requirements, found in Chapter 31 of the North Carolina General Statutes.
Who May Make a Will in North Carolina?
The North Carolina statutes require those who make a Will to be of sound mind and over 18 years.
To be of sound mind, a person has to have the capacity to understand:
- the natural objects of their bounty
- the kind, nature, and extent of their property
- the manner in which they desire to dispose of their property
- the effect the act of making a Will will have on their estate.
Formalities of Valid Wills
There are three types of Wills in North Carolina: attested Wills, holographic Wills, and nuncupative Wills. To be valid, the Will must comply with specific legal formalities required for each type of Will.
An attested Will is a written Will that is not completely in the handwriting of the testator.
To be valid, the person making the Will (the testator) must, with the intent to sign the Will, sign it personally or direct another person to sign it in the testator’s presence.
The statute also requires that two competent witnesses sign the Will after either witnessing the testator sign the Will; or after the testator signifying to them that he previously signed the Will. The attesting witnesses must sign the Will in the presence of the testator, although it is not necessary for them to sign in each other’s presence.
Competent witnesses are generally disinterested, meaning that they have nothing to gain from the Will. It’s always a good idea to choose witnesses who are not related by blood or marriage and who are not beneficiaries of the Will.
A holographic Will is a Will written wholly in the testator’s handwriting and signed by the testator. Before January 8, 2021, it was necessary that the holographic will also be found:
- among the Testator’s valuable papers or effects;
- in a safe deposit box or another safe place that the Testator controls; or
- in the custody of an individual or entity tasked by the Testator with keeping the Will safe.
The location requirement was eliminated effective July 8, 2021.
It is not necessary for witnesses to sign a holographic will.
Nuncupative Wills are oral Wills. It is permissible to use nuncupative Wills only in limited circumstances and to dispose of only limited personal property.
Specifically, a nuncupative Will is valid is 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. Additionally, at least two competent witnesses must simultaneously hear the statement after being specifically asked to bear witness to the statement.
Is it Necessary to Notarize a Will in North Carolina?
A notary seal is not a necessary requirement of a valid Will in North Carolina.
However, the North Carolina statutes give testators the option of adding a self-proving affidavit to their Will. Testators, witnesses, ad a notary have to all sign a self-proving affidavit.
What is a self-proving affidavit and why would you want to include one? A self-proving affidavit is a document that affirms the testator properly signed the Will. The benefit of a self-proving affidavit is that witnesses would not be required to appear in probate court to prove up the Will. This saves time and expense.