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

North Carolina has specific legal requirements that must be met for a Will to be valid. A North Carolina Will is valid when the person signing is at least 18 and of sound mind, intends the document to serve as their will, and signs it with the proper formalities for the type of will they are using. If a Will doesn’t meet all these requirements, it may not be enforceable, and your estate may pass under the North Carolina Intestacy laws instead of your personal wishes. 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.

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

What makes a Will Valid in North Carolina?

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

• The person making the will (the “testator”) has legal and testamentary capacity
• The testator intends the document to operate as a will.
• The will is in writing and properly executed based on the type of will.

Wills that don’t meet all these requirements will not be admitted to probate. Below is a more detailed explanation of what each requirement means, including the two types of written wills that North Carolina recognizes and the required signing formalities.

1) Legal and Testamentary Capacity

In North Carolina, a testator has legal capacity to sign a Will if they are at least 18 years old and of sound mind at the moment they sign their Will.

Being of sound mind doesn’t mean they have to have a perfect memory. Many people who experience some cognitive decline have good days and bad days and may still be legally able to sign a Will. All that matters is that they understand the nature and extent of the property they own, who the important people in their life are, such as close family members, friends, or organizations, and that the document they are signing will control where their property goes after they die at the moment they signed their Will

If they can’t understand those things, the Will will not be valid. That’s why it’s important to create a Will before you experience

2) Testamentary Intent

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

3) The Will Must Be in Writing

The formalities required for a written Will in North Carolina depend on the type of Will you make. North Carolina recognizes two types of written Wills:

1. Handwritten (Holographic) Wills are handwritten Wills. In North Carolina, a holographic Will must be written entirely in the testator’s own handwriting and signed by the testator. Witnesses don’t need to sign a holographic will. Even though they are legal, they are easier to challenge in probate than a Will prepared by an attorney.
2. Witnessed Attested Wills  are the most common type of Will. They 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 them only in rare circumstances and only to pass limited personal property.

The only time an oral Will is valid is when:

1. the person making the Will has a terminal illness or is in imminent peril of death and does not survive that illness or imminent peril; and
2. 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 Will doesn’t have to be notarized to be valid in North Carolina.

That being said, 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 the testator and witnesses sign in front of a notary that affirms the testator properly signed the Will.

The benefit of a self-proving affidavit is that it eliminates the need for witnesses to appear in probate court to prove up the Will, which saves time and expense after someone dies. It is also 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. When that happens, your property will pass according to the North Carolina intestate succession laws, a formula created by the state legislature that does not take your family dynamics or special circumstances into account.

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.

Do I need a Lawyer to Make a Will in North Carolina?

There is no legal requirement that a lawyer prepare your Will in North Carolina. But DIY estate planning is risky. Small execution mistakes, unclear language, or missing contingencies can cause problems after you die

I have seen DIY Wills that were signed but not witnessed, and others where people assumed a notary could replace the witness requirement. I have also seen plans where the testator did not coordinate the Will and beneficiary designations, so retirement accounts and life insurance passed in a way the person did not expect. Even properly signed DIY Wills can have inconsistent provisions and a missing backup plan that can cause conflict after death.

Working with an attorney can help you avoid pitfalls like these so that your property passes the way you intend.

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.