North Carolina Wills, Trust, and Probate

A properly drafted estate plan is essential to protecting yourself and your family, even though constructing the plan can be emotionally difficult. Estate plans often consist of several different documents, such as an advanced care directive, will, trust, power of attorney, and a healthcare surrogate designation, among others. You should try to revise the documents in your estate plan whenever events that change the structure of your family, or your life in general, occur. Be sure to construct your estate plan after consulting a North Carolina estate planning lawyer, and to update your lawyer whenever you revise your estate plan.

North Carolina Will

Your assets may not be allocated in accordance with your wishes if the phrasing of your will does not accurately reflect North Carolina’s legal requirements. The following is required for a proper North Carolina will:

1. Witnesses: In North Carolina, two disinterested witnesses over the age of 18 must sign the will after watching the testator sign the will, or after the testator acknowledges that the signature on the will is his. In addition, the witnesses must each sign the will while the testator is watching, but the witnesses do not have to sign the will in each other’s presence.
2. Notarization: You need not have your will notarized for your will to be a legal document in North Carolina. However, if you want your will to be self-proving, you must have an affidavit signed by the testator, two witnesses, and notarized in addition to a signed will.

A North Carolina probate lawyer can help you draft a will that meets North Carolina legal prerequisites.

Changing a Will in North Carolina

You may change your will in North Carolina:

1. By codicil (an amendment to the will)
2. By physically revoking the will (burning, tearing, obliterating), or by writing a new, contradictory will

Any alterations to your will must comply with North Carolina wills and trusts law. You must use the proper phrasing and number of witnesses to ensure that your desires are fulfilled. Remember to talk to a North Carolina wills and trusts lawyer about any alterations you intend to make, or have made to your will.

North Carolina Trust

North Carolina trusts are confidential, flexible vehicles for disposing of your property, saving on estate taxes and avoiding probate. There are several different kinds of trusts, such as a charitable trust, special needs trust, life insurance trust, and educational trust. Trusts can also be either irrevocable or revocable.

A North Carolina lawyer can help you navigate the complicated procedures involved in constructing a trust that is suitable to your specific circumstances.

North Carolina Probate

When a North Carolina citizen dies, his property passes through probate if he leaves his assets to beneficiaries in his will. If a deceased does not leave a will, his assets will be distributed to people according to their relationship with the deceased. This procedure is called “intestate succession” in North Carolina.

If a deceased individual in North Carolina leaves a will that is unclear which party should receive part or all of his or her property, or, alternatively, if a North Carolina deceased’s property passes by intestate succession and it is ambiguous which relatives should receive what share of the deceased’s property, any person who may benefit from the will may petition the court to determine who may receive what property and in what shares.

If an estate is worth less than $20,000, a person interested in the estate may, within 30 days after the death of the deceased, complete a Small Estate Affidavit to gather any debts owed to the deceased. Filing a Small Estate Affidavit helps beneficiaries of small estates avoid the burdensome probate process.

Assets that pass by intestate succession pass to certain people based on the degree of their blood relationship to the deceased. For example, the following groups of people may be beneficiaries of the deceased’s estate:

1. Spouses
2. Children (including half bloods, adopted persons, and children born out of wedlock)
3. Grandchildren
4. Parents
5. Brothers and Sisters
6. After-born heirs

The following kinds of assets may not pass through probate:

• jointly held property- property owned by the deceased and by other individuals – that property is automatically transferred to the other individuals upon the deceased’s death. For example, joint bank accounts, houses, or cars.
• contract assets - life insurance policies, living trusts, or IRAs that indicate a specific beneficiary.
• non-probate assets – property that goes straight to a person because the trust or will clearly indicates that person should benefit.

It is possible to challenge a will after its creation; so, it is imperative that you talk to counsel in North Carolina if you have any unease about your will.

North Carolina Statutes

North Carolina General Statutes – Estates and Trusts

1. Probate Code: Wills
   • North Carolina General Statutes, Chp. 31.
2. Probate Code: Intestate Succession
   • North Carolina General Statutes, Chp. 29.
3. Probate Code: Administration of Estates
   • North Carolina General Statutes, Tit. 42, Chps. 28-28A.
4. North Carolina Trusts
   • North Carolina General Statutes, Chp. 36.