Making a Will in North Carolina

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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.

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Making a Will in North Carolina

  1. 1. Presented by the Law Offices of Cherly David | April 2013Making a Will in North CarolinaCommon Issues, Legal RequirementsAnd OptionsPresented by the Law Offices of Cherly David | April 2013
  2. 2. Presented by the Law Offices of Cherly David | April 2013Cheryl K. DavidEstate Planning & Elder Law Attorneywww.cheryldavid.comdavidlawnccherylkdavidlawofficesofcheryldaviddavidlawnccheryl@cheryldavid.com
  3. 3. 1Your Will
  4. 4. Presented by the Law Offices of Cherly David | April 2013WILLS ARE ALSO SOMETIMES REFERRED TO AS LAST WILLS ANDTESTAMENTSEvery capableadult in NorthCarolina shouldhave a will.
  5. 5. Presented by the Law Offices of Cherly David | April 2013North Carolina hasspecific laws thatapply whenever youcreate a will, but youcan create, ormodify, your will atany time.
  6. 6. Presented by the Law Offices of Cherly David | April 20131Why BotherCreating AWill?
  7. 7. Presented by the Law Offices of Cherly David | April 2013A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGEOF SPECIFIC PURPOSES Distribute property after you die
  8. 8. Presented by the Law Offices of Cherly David | April 2013A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGEOF SPECIFIC PURPOSES Nominatesomeone to care foryour young children
  9. 9. Presented by the Law Offices of Cherly David | April 2013A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGEOF SPECIFIC PURPOSES Create a trust thatwill own property foryoung children untilthey are old enough
  10. 10. Presented by the Law Offices of Cherly David | April 2013A WILL IS A LEGAL DOCUMENT THAT ACCOMPLISHES A RANGEOF SPECIFIC PURPOSES Appoint someone to manage yourestate during the probate process
  11. 11. 1NorthCarolina WillLegalRequirements
  12. 12. ATTESTED WILLSNorth Carolina law allows for three types ofwills, but by far the most commonly used andeasy to create is what is called an attested will.Presented by the Law Offices of Cherly David | April 2013
  13. 13. Legal Requirements- PrintedAttested wills must be made in writing.Presented by the Law Offices of Cherly David | April 2013
  14. 14. Legal Requirements- SignedYou must sign your own will or, if not capable ofsigning physically, have someone else sign for you atyour direction.Presented by the Law Offices of Cherly David | April 2013
  15. 15. Legal Requirements- WitnessesYou have to sign your will in the presence of twocompetent witnesses. The witnesses should bepeople who do not stand to inherit from you.Presented by the Law Offices of Cherly David | April 2013
  16. 16. 1Other Typesof Wills
  17. 17. 2 OTHER TYPES OF WILLSPeople in North Carolina can also create two othertypes of wills, though you should never do so unlessit is impossible to create an attested will.Presented by the Law Offices of Cherly David | April 2013
  18. 18. Presented by the Law Offices of Cherly David | April 2013Handwritten WillsKnown as a holographicwill, these wills are createdentirely in your ownhandwriting.
  19. 19. Oral WillsPresented by the Law Offices of Cherly David | April 2013Also called a nuncapative will,these are wills you createentirely by speaking.They are only allowed insome very limitedcircumstances.
  20. 20. 1Qualifications
  21. 21. Presented by the Law Offices of Cherly David | April 2013CAPACITYYou can only make a will in North Carolina if you have the legal capacity to do so.- AdultYou must be at least 18years old to make a will inNorth Carolina.
  22. 22. CAPACITYYou can only make a will in North Carolina if you have the legal capacity to do so.- Mentally soundOnly a person who is capable of reasoning andmaking decisions can create a will.Presented by the Law Offices of Cherly David | April 2013
  23. 23. Most people are mentally sound, but those who havebeen adjudicated incompetent by a court,those with intellectual or cognitive impairments,as well as those with illnesses that impact their ability tomake choices,such as Alzheimer’s disease,are not mentally sound.Mentally soundPresented by the Law Offices of Cherly David | April 2013
  24. 24. Presented by the Law Offices of Cherly David | April 2013TESTATORThe law refers to aperson who makesa will as a“testator.”
  25. 25. Presented by the Law Offices of Cherly David | April 2013Sometimes, “testator” is used to refer to men who makewills, while “testatrix” is used to refer to women whomake wills. In many cases the term testator is usedregardless of the person’s sex.TESTATOR
  26. 26. 1Will Clauses
  27. 27. Wills can include any number of clauses. While state lawimposes specific requirements, there are a range ofoptional clauses that, though not necessary to create alegally valid will, are very important.Presented by the Law Offices of Cherly David | April 2013WILL CLAUSES
  28. 28. Presented by the Law Offices of Cherly David | April 2013Will Clauses - Executor AppointmentOnce you die someone will have to manage yourproperty and ensure that your wishes are met.
  29. 29. Presented by the Law Offices of Cherly David | April 2013- a personal representative- Executor- can only be appointed through your willWill Clauses - Executor Appointment
  30. 30. Will Clauses - GuardianPresented by the Law Offices of Cherly David | April 2013- Guardian- Someone who will take over your parentingresponsibilities should you die.
  31. 31. Will Clauses - GuardianPresented by the Law Offices of Cherly David | April 2013If you are a parent with a young child you can useyour will to nominate a guardian.
  32. 32. Will Clauses – Testamentary TrustYoung children cannotlegally own property, so ifyou have young childrenit’s also important tocreate a testamentarytrust so that any propertythey inherit is transferredto the trust until they areold enough to own it.- Testamentary TrustPresented by the Law Offices of Cherly David | April 2013
  33. 33. Will Clauses – Testamentary TrustThe trust, through a trustee youappoint through your will, willmanage the property for the child’sbenefit.Presented by the Law Offices of Cherly David | April 2013
  34. 34. No two wills are identical, andonly an attorney can tell youwhat clauses you should orshouldn’t include.WILL CLAUSESPresented by the Law Offices of Cherly David | April 2013
  35. 35. 1WhatHappens IfYou Don’tMake a Will
  36. 36. Presented by the Law Offices of Cherly David | April 2013
  37. 37. The State of North Carolina Has AlreadyChosen For YouEvery state, including North Carolina, has enactedlaws that determine who will inherit your propertyafter you die.Presented by the Law Offices of Cherly David | April 2013These laws apply automatically unless you create awill or other estate planning device that disposes ofyour property in a manner you choose.
  38. 38. Essentially, by choosing not to make a will youchoose to allow state intestacy laws to makeyour choices for you.Presented by the Law Offices of Cherly David | April 2013
  39. 39. Court BattlesDying without a will when you have minor children isespecially problematic. If this happens, the court willhave to go through the process of selecting anappropriate guardian.Presented by the Law Offices of Cherly David | April 2013
  40. 40. If your family cannotagree on who this is it canlead to a difficult, andsometimes lengthy, courtbattle. Regardless, you willhave no say over who thisperson is because youfailed to make a will thatnominated your choice ofguardian.
  41. 41. 1CommonQuestions
  42. 42. Do I have to leave my family aninheritance?Presented by the Law Offices of Cherly David | April 2013Yes and no.North Carolina guarantees spouses a portion ofyour estate and there is nothing you can do todisinherit your spouse completely.
  43. 43. However, it is possible to disinherit children, even ifthey are minors.Presented by the Law Offices of Cherly David | April 2013Do I have to leave my family aninheritance?
  44. 44. Doing so is somewhat tricky, and you will need toensure your will specifically addresses each childand states that you choose not to leave aninheritance.Presented by the Law Offices of Cherly David | April 2013Do I have to leave my family aninheritance?
  45. 45. Can I change my will after I make it?Some people, aftermaking a will, believethat by choosing to leavepeople an inheritancethey are legally obligatedto leave that person theinheritance specified inthe will.Presented by the Law Offices of Cherly David | April 2013
  46. 46. …This is NOT TRUE.Wills are not contracts, and you can revokeyour will or change its terms at any time.Presented by the Law Offices of Cherly David | April 2013Can I change my will after I make it?
  47. 47. 3 Primary Ways to Change Your WillRevocationYou can destroy your will, effectively cancelling your inheritancechoices. You can do this at any time as long as you are mentallycompetent.New willYou can create a new will with completely new terms and directthat the old will is no longer valid.CodicilA codicil is a written document that amends your current willwithout revoking it or rewriting it. It too must be made inwriting and meet the same requirements a will must meet.Presented by the Law Offices of Cherly David | April 2013
  48. 48. 1FinalThoughts
  49. 49. Presented by the Law Offices of Cherly David | April 2013Do Not Delay
  50. 50. Choosing to make an estate plan is one of the mostimportant things you can do to help your familyshould the worst happen. While procrastination iscommon, act quickly because you never know whatwill happen tomorrow.Presented by the Law Offices of Cherly David | April 2013Do Not Delay
  51. 51. A Beginning, Not an EndGetting started with estate planning is always a goodchoice to make, and creating a will is a good place tostart. But a will is not enough to meet all of yourestate planning needs. Other documents accomplishdifferent purposes that wills are not suited for.Presented by the Law Offices of Cherly David | April 2013
  52. 52. Medical choices. If you want to receive, or refuse, different typesof medical care should you lose your ability to communicate youwill need to create a living will or other type of advance directive.A will is not a suitable device to communicate your medicalchoices.Financial management. If you are incapacitated you will also needsomeone to manage your property for you, but you cannotchoose who this is through your will. You’ll have to create a powerof attorney to appoint someone.Other options. Complete estate plans often include manyadditional pieces, such as trusts, Medicaid plans, or otherelements.A Beginning, Not an EndPresented by the Law Offices of Cherly David | April 2013
  53. 53. Thank You!Cheryl K. DavidEstate Planning & Elder Law Attorneydavidlawnccherylkdavidlawofficesofcheryldaviddavidlawnccheryl@cheryldavid.com

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