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A will — or last Will and testament — is a legal document stating how you want your assets to be distributed after your death, who they will go to, and who will facilitate the process.
Not only does a Will address your assets, but it can also be used as a tool to accomplish goals such as creating a trust to provide for minor children and designating who you want your children’s legal guardian to be. Think of your Will as a blueprint for your executor to carry out your final demands.
The Benefits of a Will in North Carolina
A Will is a powerful document, and everyone can benefit from having one — no matter the size of your estate. Above all, a Will gives you peace of mind knowing that if tomorrow never comes, everyone you love is taken care of, and your assets will be distributed per your wishes. Below are some of the many benefits of having a will in North Carolina
You Decide Who Receives Your Assets
In your Will, you can name who you’d like to inherit your assets — these individuals are known as your beneficiaries. Furthermore, you can explicitly name who you don’t want to receive your assets. In the event you have minor children, you can also decide who will receive your assets and how those assets are to be managed on behalf of your children.
You Choose Your Executor
Once you set the terms of your Will, you can determine the individual responsible for carrying out those terms after your death — this person is called your executor. In the event, you are undecided as to who you want to serve as your executor, but you are certain about who you do not want to serve as executor, you can exclude certain named individuals.
So long as your Will is valid under North Carolina law, the executor must carry out the directives in your Will, and at all times, the executor has a fiduciary responsibility to act in your and your beneficiary’s best interest.
You Can Explain How You Want Your Assets Distributed
The most obvious benefit to having a Will is that it allows you to control how the assets of your estate are distributed.
While most people commonly think this is a fairly rigid designation, the truth is that a Will allows you to get creative in designating named beneficiaries of your estate, how much beneficiaries will inherit, when said beneficiaries will inherit your assets, and whether the assets are to be held in trust on behalf of any beneficiaries to ensure the assets aren’t blown through frivolously.
For example, by outlining terms for a trust within your Will, you can determine the exact age when your beneficiaries receive your assets, how they are distributed, and who manages them until the beneficiary reaches the selected age.
While a trust is common for individuals with younger children who would otherwise have a court-appointed guardian manage their assets until they’re 18, it can also be useful if you have beneficiaries in your Will who are not fiscally responsible.
You Can Establish Plans in the Event of an Unexpected Death
Another thing to consider is that North Carolina follows the Simultaneous Death Act. In North Carolina, you must prove by clear and convincing evidence of a spouse’s survival by 120 hours.
Depending on how your estate plan is structured, this provision could create havoc on what survivorship provisions are triggered. The solution is to specify which spouse is deemed to have survived the other, in the unfortunate event that both spouses die simultaneously.
Further, the ability to draft a different standard of survivorship allows for flexibility in distinguishing survivorship standards between different beneficiary types, disclaiming property, taking marital deductions, and other tax considerations.
You Can Appoint a Guardian
A Will is essential for individuals with young children — and you should have the final say in who will look after your kids if an untimely death occurs to you and your spouse. Further, in the event you become incapacitated, you may require a legal guardian to handle your estate and make decisions regarding your personal care.
In North Carolina, you may recommend who you would like to serve as your or your children’s guardian. While the Clerk of Court is not bound to the recommendation, it typically serves as a strong guide for the Clerk in appointing a guardian.
Without your recommendation, the court will appoint a legal guardian for you or your children, and that person may not be who you would otherwise prefer.
How Do You Create a Will in North Carolina?
The process of creating a Will is different for everyone. It’s vital that you speak with your Will attorney to determine what to include in your Will and what steps to take to ensure your Will is valid under North Carolina law. Generally, here’s an overview of what to expect:
- Identify Your Assets and Property – First, consider the most valuable assets that you’d like to include in your will. This could be tangible (houses and cars) and intangible (stocks and bonds) property.
- Designate Your Beneficiaries – Explain who you’d like to receive your assets after death. This will most likely be your spouse and children, if applicable.
- Appoint an Executor – Next, you need to assign the individual responsible for carrying out the terms of your Will.
- Provide Additional Guidelines – At this point, you can designate a legal guardian for you and your children and other important considerations depending on your situation.
- Sign & Store in a Safe Place – After the terms of your will have been set; it must be signed and kept in a safe place. This could be different for everyone and might be a safe or file where you keep documents like your birth certificate. Make sure that your executor knows where your Will is.
- Update Your Living Will – Once your document is drafted and signed, you can update your Will as needed with the help of a lawyer who handles wills. It is recommended that you update your Will every three to five years.
What Happens If You Die Without a Will in North Carolina?
If you don’t create a Will detailing how you’d like all the matters of your estate to be handled when you die, the State of North Carolina will determine that you died intestate, and the Intestacy Statutes in North Carolina will control the distribution of your assets.
As a result, the court will make these decisions for you — lengthening the probate process, increasing the chance for family disputes, increasing the chance assets are not distributed equitably, and ultimately resulting in beneficiaries inheriting your assets who you would have otherwise excluded.
The State of North Carolina will appoint an executor to manage your estate and distribute your assets in accordance with the state’s intestate succession laws. These laws set forth the order by which your assets are dispersed to your relatives. Who gets what depends on whether you have children, parents, or a spouse.
Since North Carolina Intestate laws only recognize blood relatives, unmarried couples without a Will could face additional hardship if they relied on the decedent for financial support.
Requirements of a Valid North Carolina Will
North Carolina law states that anyone of a sound mind and 18 years of age or older can execute a Will. Someone with a sound mind understands what they’re doing and the result of their actions. They also understand the extent of their assets and who they’re naming as their beneficiaries. A Will must be signed by you and at least two witnesses to be valid. Both your and your witnesses’ signatures must also be notarized.
Can You Write Your Own Will in North Carolina?
Although legally, you can write your own Will, it is not recommended. North Carolina courts only accept valid wills, and without knowing the legal nuances involved with drafting Wills, you risk making errors that deem them invalid.
This means the court would treat your estate like you died intestate, which means you died without having a valid Will. Further, by drafting your own Will, you open the door to beneficiaries challenging your mental capacity at the time and fighting over the terms of your Will.
You should always retain a Charlotte Will lawyer to ensure your will is drafted correctly under North Carolina law. This will make sure your last wishes are clear, but it also allows for a much more pleasant probate process.
Need Help Drafting Your Will? Call Our Charlotte Wills Lawyer.
When you have acquired valuable assets and have a family, you want to ensure their future. Having a Will benefits your surviving relatives and ensures that your voice is heard even after your death.