In my estate planning practice, I often see “homemade” wills typed and signed by deceased persons with no witnesses except a notary. Regretfully, this doesn’t constitute a valid will through which the decedent’s property can be distributed to his/her beneficiaries.
An attorney who prepares estate planning documents can properly address issues that homemade wills don’t, including: waiver of bond requirements, proper executor selection and powers, problems locating witnesses, and legal clarity covering the disposition of property.
North Carolina law recognizes four kinds of wills, with special rules qualifying each for probate. Once probated, the decedent’s property can be distributed as set out in the will, with some exceptions. Generally speaking, the following applies to these four wills:
1) Attested written will – the party making the will (the “testator”) must sign it in the presence of two competent witnesses or the testator acknowledges to the witnesses that he/she previously signed the will. The witnesses must sign in the testator’s presence. If notarized, these wills are self-proving.
2) Holographic will – this must be entirely in the testator’s handwriting, including the testator’s name which must appear somewhere within or at the end of the will. It must be found after the testator’s death among his/her valuable papers in someplace considered “safe,” or in the possession of some person who agreed to hold the will for safekeeping. Witnesses aren’t required.
3) Nuncupative will – the testator is terminally ill or faces imminent peril of death and doesn’t survive the sickness or peril. He/she must declare in the presence of two competent witnesses that an oral statement is to be his/her will. The witnesses must put the testator’s oral statement in writing within ten (10) days. If not put in writing, these wills cannot be probated after six months from the declaration date. A nuncupative will only transfers personal property; all the decedent’s real property would pass by intestate succession rules as if dying without a will.
4) Soldier’s will – special rules accommodate members of the U.S. Armed Forces and Merchant Marines while on active duty. The soldier simply signs his/her name to a paper writing. It doesn’t need a witness or to be entirely in the soldier’s handwriting. However, three credible witnesses must state, under oath, that the signature to the will is in the soldier’s handwriting.
Contact Weaver, Bennett & Bland, P.A.’s experienced estate planning attorneys for assistance in properly preparing and administering your will.
The information contained in this article is general in nature and is not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and the law firm of Weaver, Bennett & Bland, P.A.
Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina since 1982, we proudly provide legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, the Ballantyne area, and other surrounding communities in the Greater Charlotte area. Our clients range from national corporations and major banking institutions to individuals and local companies.