North Carolina Laws Regarding Wills

By Jeffry Olson, J.D.

North Carolina Laws Regarding Wills

By Jeffry Olson, J.D.

State statutes determine the validity and requirements for a last will and testament, including those in the State of North Carolina. One that fails to meet the state's requirements is not valid. In those cases, the court proceeds as if the creator passed away intestate. When creating yours in the State of North Carolina, follow the laws of the state to ensure that it is valid and enforceable in court. Here are a few of the most important legal requirements for a will.

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Basic Requirements

The creator, called the testator, must be 18 years old for it to be valid. One exception is if the testator is under 18 years old but is married. In this situation, they may make a will.

The testator must be of sound mind, meaning they understand the purpose of creating it, the nature of the property held, and their relationship with typical heirs, and include a clause in the document indicating as such.

With the exception of nuncupative and holographic wills, described below, testators must sign it and have two disinterest individuals witness the signature and sign it themselves.

North Carolina law does not require notarization of the signatures. However, the document may be "self-proving" if the testator and witnesses sign a notarized affidavit stating that it was signed by the testator in the presence of the witnesses. Though not required, this avoids any requirement that the probate court consider the validity of the signatures and having witnesses testify to the validity of the will under oath.

Nuncupative and Holographic Wills

A nuncupative will is one made orally in the presence of two or more witnesses. Most states do not recognize these; however, the State of North Carolina does in certain circumstances. In order to be valid, the testator must be dying from a "last sickness or in imminent peril."

If the individual does in fact die as a result of the sickness or peril, their personal property passes according to the terms within. But it will be invalid for disposition of real property, such as a house. A holographic will is one that is handwritten and signed by the testator. Witnesses are not required nor is a notarization of it.

Disinheritance in North Carolina

North Carolina provides a proportion of an estate that a surviving spouse may claim instead of what they were left in their spouse's will, called an elective share. The elective share depends on the length of the marriage. For example, if the marriage has been for 15 years or longer, the elective share is 50 percent. For a marriage of at least 10 years but less than 15, the share is 33 percent. For a marriage of at least five years but less than 10, the share is 25 percent. A marriage less than five years results in a 15 percent elective share. A surviving spouse must act to claim an elective share, or he or she inherits according to the terms stated within.

Avoiding the elective share and disinheriting a spouse in the State of North Carolina can be difficult. The simplest method includes the use of a prenuptial or postnuptial agreement and a waiver of the elective share. Long-term separation creates a difficult situation. A separated spouse is entitled to an elective share without further action, such as a properly executed postnuptial agreement. Disinheriting children in a will is possible, however, it requires specific mention of the party to be disinherited and your intent to do so.

If you want to create a will in your home state of North Carolina, understand the most important rules, outlined above. With some research, and depending on the complexities of your assets, you can have it written in a matter of minutes.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.