Every capable adult in North Carolina should have a will. North Carolina has specific laws that apply whenever you create a will, but you can create, or modify, your will at any time. Wills are also sometimes referred to as last wills and testaments.

1. Presented by the Law Offices of Cherly David | April 2013
Making a Will in North Carolina
Common Issues, Legal Requirements
And Options
Presented by the Law Offices of Cherly David | April 2013

2. Presented by the Law Offices of Cherly David | April 2013
Cheryl K. David
Estate Planning & Elder Law Attorney
www.cheryldavid.com
davidlawnc
cherylkdavid
lawofficesofcheryldavid
davidlawnc
cheryl@cheryldavid.com

3. 1
Your Will

4. Presented by the Law Offices of Cherly David | April 2013
WILLS ARE ALSO SOMETIMES REFERRED TO AS LAST WILLS AND
TESTAMENTS
Every capable
adult in North
Carolina should
have a will.

5. Presented by the Law Offices of Cherly David | April 2013
North Carolina has
specific laws that
apply whenever you
create a will, but you
can create, or
modify, your will at
any time.

6. Presented by the Law Offices of Cherly David | April 2013
1
Why Bother
Creating A
Will?

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A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE
OF SPECIFIC PURPOSES
 Distribute property after you die

8. Presented by the Law Offices of Cherly David | April 2013
A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE
OF SPECIFIC PURPOSES
 Nominate
someone to care for
your young children

9. Presented by the Law Offices of Cherly David | April 2013
A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE
OF SPECIFIC PURPOSES
 Create a trust that
will own property for
young children until
they are old enough

10. Presented by the Law Offices of Cherly David | April 2013
A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGE
OF SPECIFIC PURPOSES
 Appoint someone to manage your
estate during the probate process

11. 1
North
Carolina Will
Legal
Requirements

12. ATTESTED WILLS
North Carolina law allows for three types of
wills, but by far the most commonly used and
easy to create is what is called an attested will.
Presented by the Law Offices of Cherly David | April 2013

13. Legal Requirements
- Printed
Attested wills must be made in writing.
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14. Legal Requirements
- Signed
You must sign your own will or, if not capable of
signing physically, have someone else sign for you at
your direction.
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15. Legal Requirements
- Witnesses
You have to sign your will in the presence of two
competent witnesses. The witnesses should be
people who do not stand to inherit from you.
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16. 1
Other Types
of Wills

17. 2 OTHER TYPES OF WILLS
People in North Carolina can also create two other
types of wills, though you should never do so unless
it is impossible to create an attested will.
Presented by the Law Offices of Cherly David | April 2013

18. Presented by the Law Offices of Cherly David | April 2013
Handwritten Wills
Known as a holographic
will, these wills are created
entirely in your own
handwriting.

19. Oral Wills
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Also called a nuncapative will,
these are wills you create
entirely by speaking.
They are only allowed in
some very limited
circumstances.

20. 1
Qualifications

21. Presented by the Law Offices of Cherly David | April 2013
CAPACITY
You can only make a will in North Carolina if you have the legal capacity to do so.
- Adult
You must be at least 18
years old to make a will in
North Carolina.

22. CAPACITY
You can only make a will in North Carolina if you have the legal capacity to do so.
- Mentally sound
Only a person who is capable of reasoning and
making decisions can create a will.
Presented by the Law Offices of Cherly David | April 2013

23. Most people are mentally sound, but those who have
been adjudicated incompetent by a court,
those with intellectual or cognitive impairments,
as well as those with illnesses that impact their ability to
make choices,
such as Alzheimer’s disease,
are not mentally sound.
Mentally sound
Presented by the Law Offices of Cherly David | April 2013

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TESTATOR
The law refers to a
person who makes
a will as a
“testator.”

25. Presented by the Law Offices of Cherly David | April 2013
Sometimes, “testator” is used to refer to men who make
wills, while “testatrix” is used to refer to women who
make wills. In many cases the term testator is used
regardless of the person’s sex.
TESTATOR

26. 1
Will Clauses

27. Wills can include any number of clauses. While state law
imposes specific requirements, there are a range of
optional clauses that, though not necessary to create a
legally valid will, are very important.
Presented by the Law Offices of Cherly David | April 2013
WILL CLAUSES

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Will Clauses - Executor Appointment
Once you die someone will have to manage your
property and ensure that your wishes are met.

29. Presented by the Law Offices of Cherly David | April 2013
- a personal representative
- Executor
- can only be appointed through your will
Will Clauses - Executor Appointment

30. Will Clauses - Guardian
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- Guardian
- Someone who will take over your parenting
responsibilities should you die.

31. Will Clauses - Guardian
Presented by the Law Offices of Cherly David | April 2013
If you are a parent with a young child you can use
your will to nominate a guardian.

32. Will Clauses – Testamentary Trust
Young children cannot
legally own property, so if
you have young children
it’s also important to
create a testamentary
trust so that any property
they inherit is transferred
to the trust until they are
old enough to own it.
- Testamentary Trust
Presented by the Law Offices of Cherly David | April 2013

33. Will Clauses – Testamentary Trust
The trust, through a trustee you
appoint through your will, will
manage the property for the child’s
benefit.
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34. No two wills are identical, and
only an attorney can tell you
what clauses you should or
shouldn’t include.
WILL CLAUSES
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35. 1
What
Happens If
You Don’t
Make a Will

36. Presented by the Law Offices of Cherly David | April 2013

37. The State of North Carolina Has Already
Chosen For You
Every state, including North Carolina, has enacted
laws that determine who will inherit your property
after you die.
Presented by the Law Offices of Cherly David | April 2013
These laws apply automatically unless you create a
will or other estate planning device that disposes of
your property in a manner you choose.

38. Essentially, by choosing not to make a will you
choose to allow state intestacy laws to make
your choices for you.
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39. Court Battles
Dying without a will when you have minor children is
especially problematic. If this happens, the court will
have to go through the process of selecting an
appropriate guardian.
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40. If your family cannot
agree on who this is it can
lead to a difficult, and
sometimes lengthy, court
battle. Regardless, you will
have no say over who this
person is because you
failed to make a will that
nominated your choice of
guardian.

41. 1
Common
Questions

42. Do I have to leave my family an
inheritance?
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Yes and no.
North Carolina guarantees spouses a portion of
your estate and there is nothing you can do to
disinherit your spouse completely.

43. However, it is possible to disinherit children, even if
they are minors.
Presented by the Law Offices of Cherly David | April 2013
Do I have to leave my family an
inheritance?

44. Doing so is somewhat tricky, and you will need to
ensure your will specifically addresses each child
and states that you choose not to leave an
inheritance.
Presented by the Law Offices of Cherly David | April 2013
Do I have to leave my family an
inheritance?

45. Can I change my will after I make it?
Some people, after
making a will, believe
that by choosing to leave
people an inheritance
they are legally obligated
to leave that person the
inheritance specified in
the will.
Presented by the Law Offices of Cherly David | April 2013

46. …This is NOT TRUE.
Wills are not contracts, and you can revoke
your will or change its terms at any time.
Presented by the Law Offices of Cherly David | April 2013
Can I change my will after I make it?

47. 3 Primary Ways to Change Your Will
Revocation
You can destroy your will, effectively cancelling your inheritance
choices. You can do this at any time as long as you are mentally
competent.
New will
You can create a new will with completely new terms and direct
that the old will is no longer valid.
Codicil
A codicil is a written document that amends your current will
without revoking it or rewriting it. It too must be made in
writing and meet the same requirements a will must meet.
Presented by the Law Offices of Cherly David | April 2013

48. 1
Final
Thoughts

49. Presented by the Law Offices of Cherly David | April 2013
Do Not Delay

50. Choosing to make an estate plan is one of the most
important things you can do to help your family
should the worst happen. While procrastination is
common, act quickly because you never know what
will happen tomorrow.
Presented by the Law Offices of Cherly David | April 2013
Do Not Delay

51. A Beginning, Not an End
Getting started with estate planning is always a good
choice to make, and creating a will is a good place to
start. But a will is not enough to meet all of your
estate planning needs. Other documents accomplish
different purposes that wills are not suited for.
Presented by the Law Offices of Cherly David | April 2013

52. Medical choices. If you want to receive, or refuse, different types
of medical care should you lose your ability to communicate you
will need to create a living will or other type of advance directive.
A will is not a suitable device to communicate your medical
choices.
Financial management. If you are incapacitated you will also need
someone to manage your property for you, but you cannot
choose who this is through your will. You’ll have to create a power
of attorney to appoint someone.
Other options. Complete estate plans often include many
additional pieces, such as trusts, Medicaid plans, or other
elements.
A Beginning, Not an End
Presented by the Law Offices of Cherly David | April 2013

53. Thank You!
Cheryl K. David
Estate Planning & Elder Law Attorney
davidlawnc
cherylkdavid
lawofficesofcheryldavid
davidlawnc
cheryl@cheryldavid.com