Rules and Regulations of North Carolina Last Wills and Trusts

By Rob Jennings J.D.

The rules regarding wills and trusts developed over the course of centuries by English judges were later modified when American courts began developing their own common law. Under the American system, the regulation of wills and trusts is a matter left to the authority of the individual states. In North Carolina, Chapter 31 of the General Statutes governs wills and Chapter 36C governs trusts, with some related matters covered by other sections.

Execution and Revocation of Wills

Under Chapter 31 of the North Carolina General Statutes, any adult person of sound mind may make a will. This will may be in attested written form or may be "holographic," which means it appears in the handwriting of the testator. Holographic wills must bear the testator's signature and must be found among his valuable papers or on deposit with some authority for safekeeping. Wills in North Carolina can also be "nuncupative," or oral. A valid nuncupative will must be made on the testator's deathbed and witnessed by at least two individuals whom the testator specifically requests bear witness to his last wishes. A testator may revoke a written will only in writing or by destroying it with the intent of revocation.

Witnesses to a Will

While there is no requirement that a holographic will be witnessed, written wills in anything other than the testator's own handwriting must bear the signatures of two witnesses who actually watch the testator sign the will. Any person competent under state law to testify at a trial may witness the execution of a will. A beneficiary may serve as a witness, but there must be at least two other disinterested witnesses or the will shall be void as to his interest.

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Creation of Trusts

Under Chapter 36C of the North Carolina General Statutes, trusts can be created by a court, by a written trust document, in a will or by a declaration by the owner of property that he holds property in trust for another. In order for a trust to be created, a settlor must be competent to convey property in trust and indicate an intention to create a trust. The trust must have an identifiable beneficiary and duties for the trustee to perform. While a trustee can also be a beneficiary, a sole trustee cannot be a sole beneficiary.

Termination of Trusts

A trust that would otherwise be irrevocable may be terminated if it becomes impossible to administer the trust as intended or the trust can no longer be operated in compliance with North Carolina law. A court can modify a charitable trust to further the original charitable intent or bring the trust into compliance with the law to enable it to continue. A revocable trust can be revoked by any method specified in the trust document, by written revocation or by executing a later will or codicil that specifically references the trust or specifically gives away property that otherwise would have passed under the trust.

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Amending an Irrevocable Trust Agreement & Uniform Trust Code

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