What are the Requirements of a Valid Will in North Carolina?
North Carolina has specific legal requirements for what makes a Will valid. A will that does not meet all the requirements will not pass to the beneficiaries listed in your Will. Instead, statutory rules, known as the intestacy statutes, which apply when someone dies without a Will in North Carolina, will control who receives your property.
In this post I’ll answer some common questions:
- What makes a Will 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?
What Makes a Will Valid in North Carolina?
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.
First, the North Carolina statutes require those who make a Will (known as “testators”) to be over 18 years and of sound mind.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.
The second requirement of a valid Will in North Carolina is testamentary intent. This means that the testator must intend that the writing outlines how he wants his property distributed after he dies.
The third requirement is that a Will be in writing. The formalities required for a valid Will in North Carolina depend on the type of Will you have made. North Carolina recognizes two types of written Wills:
- Holographic Wills are wills in the testator’s own handwriting and signed by the testator. It is not necessary for witnesses to sign a holographic will.
- Attested Wills are written Wills that are not completely in the handwriting of the testator. To be valid, the person making the Will must sign the Will personally or direct another person to sign it in the testator’s presence. The statute also requires 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.
Are Oral Wills Valid In North Carolina?
Oral Wills are also known as nuncupative Wills. North Carolina allows nuncupative Wills only in limited 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. A notary seal is not a necessary requirement of a valid Will in North Carolina. A Will that meets all the requirements listed in the previous sections will be valid, even if it is not notarized.
However, the North Carolina statutes 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. Lawyers who prepare Wills routinely make a will self-proved.
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?
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.
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 in a manner you would not have prepared.
An estate planning attorney licensed in North Carolina can help you navigate these requirements to ensure your Will carries out your wishes after you die.
This article was originally published on January 22, 2022 and updated on July 29, 2023.