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 article, I’ll answer some common questions about what makes a Will binding and provide insights about:

• 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, a written Will must meet the following requirements:

1. Testator must be 18 Years old and of Sound Mind

The person making the Will (known as a”testator”) must be over 18 years old 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.

Those who lack mental capacity cannot make a Will.

2. Testator Must have Testamentary Intent

Testators must also intend that the writing outline how they want to distribute their property after they die.

3. Legal Formalities Must be Followed

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 handwritten wills. To be valid, the must be completely 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 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.

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 8, 2025.