Are Handwritten and Oral Wills Valid in North Carolina?

When it comes to estate planning, most people are familiar with the conventional typed will, typically executed with the assistance of legal professionals. However, the legal landscape of wills in North Carolina also includes handwritten and oral wills, which can be valid under certain conditions.

Understanding the nuances of these types of wills is essential for anyone looking to ensure their final wishes are honored.

What is a Handwritten Will?

A handwritten will, or holographic will, is a will entirely written and signed by the testator (the person making the will) without the involvement of witnesses. This type of will is often created in times of emergency or when the testator does not have immediate access to legal counsel.

Are Handwritten Wills Valid in North Carolina?

Yes, handwritten (holographic) wills are valid in North Carolina under specific conditions. According to North Carolina General Statutes § 31-3.4, a holographic will can be recognized as legally binding if it meets the following criteria:

1. The will must be entirely in the testator’s handwriting. Typed or partially handwritten wills may not meet the statutory requirements for a holographic will.
2. The will must be signed by the testator, showing clear intent that the document serves as their will.
3. Unlike other types of Wills, the testator can create a holographic will without attesting witnesses.

Potential Risks of Handwritten Wills

While holographic wills are valid, they can be more susceptible to challenges in court than formally drafted and witnessed wills. For example, disputes can arise regarding the authenticity of the handwriting or the presence of undue influence.

Additionally, since these wills are often created hastily, they may lack precise legal language, leading to confusion or misinterpretation of the testator’s wishes.

What is an Oral Will?

An oral will, or nuncupative will, is a will made verbally rather than in writing. These wills are often made in extreme circumstances, such as when a person is on their deathbed and does not have time to draft a formal will.

Are Oral Wills Valid in North Carolina?

Yes, oral (nuncupative) wills are recognized in North Carolina, but only under very specific circumstances. North Carolina General Statutes § 31‑3.5 outlines the requirements for a nuncupative will to be valid:

1. The person making the oral will must be in imminent peril of death, and the person must die as a result of that peril.
2. The will must be declared in the presence of at least two competent witnesses, and the witnesses must understand that the person is making a will.
3. The witnesses must submit the oral will to probate within six months of the testator’s death unless it was reduced to writing within ten (10) days after it was made.
4. Nuncupative wills can only be used to dispose of personal property, not real estate.

Additionally, there are specific rules surrounding the probate process of a nuncupative will, which do not apply to other types of wills.

Should You Make an Oral or Handwritten Will in North Carolina?

While handwritten (holographic) and oral (nuncupative) wills are recognized in limited circumstances under North Carolina law, relying on these types of wills can pose significant risks. Consider the following:

• Legal Challenges Are Common: Handwritten and oral wills are susceptible to challenges over their validity and interpretation. This can result in costly and stressful legal battles for your loved ones.
• Limited Legal Protections: These wills often fail to meet legal standards, potentially leaving your wishes unfulfilled.
• Risk of Misplacement or Miscommunication: Handwritten wills can be lost or destroyed, and oral wills depend on the memory and testimony of witnesses, which may not hold up in court.

The Safer Alternative: Work with a Charlotte Estate Planning Lawyer

If you are considering a handwritten or oral will, consult with an experienced estate planning attorney first. They can explain the drawbacks of these options and guide you toward a more secure and legally sound solution, such as a properly executed formal will. Protect your legacy by planning ahead with professional guidance.

Can a Handwritten or Oral Will Be Contested?

Family members or other interested parties may contest the authenticity of a will, often leading to lengthy and emotionally charged legal battles. In the case of oral wills, “witnesses” may emerge with conflicting claims about what the testator actually said. The authenticity of handwritten wills may also be brought into question. These uncertainties highlight the need for clear documentation and legal support.

If you find yourself in a situation where you need to navigate the complexities of a handwritten or oral will, seeking assistance from a qualified estate law attorney is crucial. An attorney experienced in estate matters can provide the necessary guidance to help you understand your rights, the validity of the will in question, and the probate process.

Advantages of an Attested Written Will vs. A Handwritten/Oral Will

While handwritten and oral wills are recognized in North Carolina, they come with risks that can make the probate process more complicated.

Both types of wills are often created under pressure and may lack the detailed planning necessary for a smooth estate settlement. For these reasons, most estate planning professionals strongly recommend drafting a formal will or trust with the assistance of an attorney.

Questions about Your Will? Call Charlotte Estate Planning

A properly drafted will ensures your wishes are carried out as intended, minimizes the potential for disputes, and provides peace of mind to your loved ones during a challenging time.

At Charlotte Estate Planning, our experienced attorneys are here to help you create a comprehensive estate plan that safeguards your assets and ensures your legacy is preserved according to your wishes. Reach out today or call 704-766-8836 for personalized legal guidance tailored to your needs.