FAQ’s: Last Will and Testaments

  1. What is a Last Will and Testament?
    1. A Last Will and Testament is the legal document that states where, how, and to whom you want your property to go at your death.
  2. What are the requirements of a valid Last Will and Testament? Testamentary Capacity;
    1. Testamentary Capacity and Testamentary Intent;
    2. In writing;
    3. Signed by the Testator;
    4. Witnessed by two (2) disinterested witnesses; and
    5. Notarized (if self-proving).
  3. Why should I have a Last Will and Testament?
    1. If you do not write your Will, your property will pass according to the Intestate Succession Act, and may not pass: (i) to the parties, (ii) in the amounts, and (iii) at the time you intend.
  4. Doesn’t North Carolina law simply give all of my property to my spouse if I die without a Last Will and Testament?
    1. Only if you die with no children or parents.
    2. If you have children, the State would divide your estate among your children and spouse, regardless of your children’s ages.
    3. If you have no children but a parent is still alive, the State would divide your estate between your spouse and parents.
  5. But if my property goes to my spouse and children anyway, why do I need a Last Will and Testament?
    1. The property is not divided evenly between your spouse and children, and your spouse may receive far less than your children, regardless of your children’s ages.
    2. If your children are under age 18 and the property going to them is worth over $1,500, the property will be controlled by a court-appointed Guardian until age 18 is reached. At age 18, the property will be distributed to the child.
  6. Who can make a valid Last Will and Testament?
    1. ANYONE of sound mind – this is a far lower standard than the ability to make a binding contract – who is 18 years of age or older can make a Last Will and Testament. You simply have to know:
      1. The natural objects of your bounty (usually next of kin),
      2. The nature and extent of your property, and
      3. The manner and effect of giving property at death.
  7. What property does my Last Will and Testament control?
    1. Typically, your Last Will and Testament controls your “probate property” which includes:
      1. Any property of any type held or owned solely in your individual name, such as real estate, interests in partnerships, corporations, limited liability companies, and investments in public companies; and
      2. Tangible personal property such as jewelry, furniture, cars, some collections, and similar assets.
  8. What property does my Last Will and Testament NOT control?
    1. Typically your Last Will and Testament does NOT control “non-probate” assets, unless paid to your estate.
    2. “Non-probate assets” typically are assets which transfer ownership by reason of the language in the contracts or deeds which create them, and often include Life insurance, Annuities, 401(k)’s and IRA’s, and Joint or right of survivorship property (often, your home and bank accounts).
  9. When does my Last Will and Testament become effective?
    1. Your Last Will and Testament becomes effective ONLY at the time of you death.
  10. Can I name the Guardian for my children in my Last Will and Testament?
    1. Yes you can name a guardian for your minor children in your Will, and the court, while not bound by your choice, will pay close attention to whom you name.
  11. Once I make a Will, can I make another Will or revise my current Will?
    1. Of course you can. As long as you are of sound mind, you can revise your Last Will and Testament any time you want.
      b. If you have only a small change, you may want to make an amendment, called a Codicil, instead of creating an entire new Will.
  12. Are there limits on how many Wills I can make?
    1. No. You can make as many Wills as you like, but only one (usually the last one) will be valid.
  13. What is the role of your Executor?
    1. Your executor collects assets, pays debts and claims and distributes what remains of your estate to your named beneficiaries.
  14. Who should be the executor of my Last Will and Testament?
    1. Someone you trust with your assets, who understands your wishes;
    2. Someone able and knowledgeable about your affairs;
    3. Someone willing to serve as Executor; and
    4. Someone who can work well with ALL of your beneficiaries.
  15. What if the Executor I name is either unwilling or unable to serve?
    1. You can name multiple alternatives and, if none are named or none can qualify, the Court can appoint an Executor to manage your estate.