Dive into the world of estate planning with our list of 6 common mistakes individuals make when creating last wills in North Carolina. Crafting a will is crucial for your legacy, yet it’s fraught with legal complexities.

A last will is not just about drafting a document; it’s about ensuring your final wishes are respected and your legacy is secure. Empower yourself with the knowledge to protect your loved ones and your assets.

So let’s explore the often confusing terrain of will preparation. Learn about the 6 most common pitfalls and avoid them easily with effective estate planning! But first, we will start with an overview of the types of NC’s last will and testament.

Understanding the Basics: North Carolina Law for a Valid Will

Creating a will in North Carolina involves understanding and complying with specific legal requirements. This ensures your last will is valid and enforceable.

Let’s explore these essentials for a solid foundation for your will preparation.

Who Can Make a Will

To start, you need to be eligible to make a will. In North Carolina, this means you must be at least 18 years old and of sound mind.

Being of sound mind implies that you understand the following:

• The nature of making a will. Basically, this means you understand what a last will and testament is and why you want to write one.
• You recognize your property and its extent. Simply put, you know what you own and where you hold it all.
• You know the natural beneficiaries of your estate. In other words, you understand who your family is. You also need to understand who you want your heirs to be.

Types of Wills North Carolina Recognizes

North Carolina recognizes several types of wills.

• Attested Written Will: The most common is the attested written will, which must be written, signed by the testator (person making the will), and witnessed by at least two competent individuals who don’t benefit from the will.
• Attested Written Will as a Self-Proving Affidavit: Notarizing an attested written will is not strictly legally necessary. However, notarizing your will creates a self-proving affidavit. Getting the notarization validates your attested written will and can make the probate process easier later.
• Holographic Will: Another type, less common, is the holographic will, wholly written in the testator’s handwriting but subject to specific legal criteria for validity. This type of will may seem easy, but it can cause more stress for your family when trying to prove it is your will for probate court.
• Nuncupative Will: Additionally, there’s the nuncupative will, which is an oral will made under certain circumstances, like during the testator’s last illness or in imminent peril of death.

Key Elements for a Valid Written Will

For an attested written will to be valid, several elements must be in place:

• Writing and Signature: The will must be in writing and signed by the testator or by someone else in the testator’s presence and at their direction.
• Specific Legal Phrases: According to state laws, a legally valid Will that is a self-proving affidavit should have language similar to what is found in statute § 31-11.6.
• Witnesses: At least two competent witnesses must observe the testator’s signing or acknowledgment of the will. These witnesses must also sign the will themselves.
• Understanding: The testator must clearly understand the will’s nature and its implications.

Avoiding Common Errors

Errors in drafting can lead to a will being contested or deemed invalid by the probate court.

To avoid these problems, ensure the will clearly states your intentions, is signed and witnessed as per legal requirements, and does not contradict any existing legal obligations or laws.

Understanding these basics is crucial for creating a valid will in North Carolina. This process requires careful consideration, clear documentation, and adherence to state laws. For more detailed information and legal nuances, you can refer to the North Carolina General Statutes Chapter 31 on Wills.

Working with an estate planning attorney can help ensure your will accomplishes exactly what you wish for your loved ones’ future. (1) (2)

Common Pitfalls in Drafting Wills

When drafting a will in North Carolina, it’s easy to stumble into pitfalls that can undermine the will’s validity or your intentions. Knowing these common mistakes can help you craft a more effective and legally sound document.

1- Ignoring Legal Formalities

One of the biggest mistakes is not adhering to North Carolina’s legal requirements for wills. This includes issues with the testator’s signature, inadequate witnessing, and failure to comply with requirements specific to types of wills, such as holographic or attested wills.

The North Carolina General Statutes provide clear guidelines on these formalities, and it’s crucial to follow them precisely.

For example, Mrs. Smith, a resident of North Carolina, decided to write her own will. She carefully listed her assets and beneficiaries but forgot to have witnesses sign the document. After her passing, the probate court declared her will invalid because it didn’t meet North Carolina’s legal requirement of having at least two disinterested witnesses​.

2- Vague or Conflicting Statements

Ambiguity in a will can lead to disputes and legal challenges. It’s important to use clear and specific language to describe your wishes.

Avoid vague terms and ensure that your instructions do not conflict with each other or with existing laws.

Emily wrote a will stating her assets should be divided “fairly” among her children. Without clear definitions of what “fairly” meant, her children disputed the interpretation, resulting in prolonged legal battles and strained relationships​

3- Overlooking Tax Implications

Not considering the impact of taxes and debts on your estate can lead to unintended consequences. Your will should consider potential tax liabilities and debts to ensure your beneficiaries receive what you intend for them.

For example, Mr. Green included his home in his will to be given to his daughter. However, he didn’t account for the substantial property tax due on the estate. As a result, his daughter faced financial difficulties in settling the tax liabilities to inherit the home​.

4- Not Updating Regularly

Life changes, such as marriages, divorces, births, deaths, and significant changes in assets, necessitate updates to your will. A will not updated to reflect changes may not accurately convey your current wishes.

For example, John drafted a will in his 30s but never updated it. Over the years, he acquired more assets and had grandchildren. When he passed away, his outdated will did not reflect his current financial situation or include his grandchildren, leading to family disputes and legal challenges

5- Failing to Consider All Assets

A common oversight is failing to include all assets in the will. This includes not only physical property and financial assets but also digital assets and any interests in businesses or partnerships.

Mr. and Mrs. Lee included their real estate and savings in their will but forgot to mention their valuable art collection. This oversight led to confusion and disagreements among the heirs about who should inherit these important and valuable pieces.

6- Failing to Consider Assets Not Included in Your Probate Estate

A person’s assets are not all part of the probate process. Such property and assets pass to beneficiaries outside of the will. These non-probate assets include:

• Life insurance policies
• Retirement accounts like IRAs and 401(k)s
• Jointly owned property with rights of survivorship (including real estate and bank accounts)

It’s crucial to understand that these assets will transfer to the named beneficiaries or co-owners directly, regardless of the provisions in your will.

Neglecting to consider these can lead to unintended discrepancies between your will and the actual distribution of your estate.

For example, let’s look at the Johnson family in North Carolina. Mr. Johnson, a widower, meticulously drafted his will, dividing his estate equally between his two children, Lissa and Ryan. However, he overlooked his substantial IRA account, for which he had named his brother, Tom, the beneficiary years ago.

After Mr. Johnson passed away, Lissa and Ryan received equal estate shares. But disputes arose when they discovered the IRA account went entirely to their Uncle Tom.

Lissa and Ryan felt that their father intended to divide everything equally between them. However, the IRA, a significant part of Mr. Johnson’s assets, was not included in the estate as it was a non-probate asset. This oversight led to a rift between the siblings and their uncle.

When drafting your will, reviewing all your probate and non-probate assets is important to ensure your estate plan reflects your true intentions.

By avoiding the common pitfalls listed above, you can create a will that accurately reflects your wishes and stands up to legal scrutiny. For more detailed legal information on will drafting and requirements in North Carolina, you can refer to the North Carolina General Statutes Chapter 31.

Avoiding Mistakes: Best Practices

Creating a will is a significant step in safeguarding your legacy and ensuring your wishes are respected. Here are some best practices to help you avoid mistakes and make the process as smooth as possible.

Clarity and Specificity

Using clear, specific language in your will is vital. Be explicit about your wishes and who should receive what. This reduces the risk of misinterpretation and legal challenges.

It’s important to identify beneficiaries and assets precisely, leaving no room for ambiguity.

Choosing Witnesses and a Knowledgeable Estate Planning Attorney

In North Carolina, your will must be witnessed by at least two competent individuals. Choosing the right witnesses who are not beneficiaries can prevent conflicts of interest.

Additionally, consulting with an estate planning attorney familiar with North Carolina laws can provide valuable insights and help you navigate complex legal waters.

Regular Reviews and Updates

Life changes, and so should your will. Regularly reviewing and updating your will ensures it reflects your current situation and wishes.

This is especially important after significant life events like marriage, divorce, the birth of children, or acquiring new assets.

Consideration of All Assets

Ensure that all your assets, including digital assets and personal belongings, are considered in your will. Also, remember that not all assets pass through the will. Assets that pass outside of the will go directly to the beneficiaries named on the policy or account.

Taking a comprehensive approach prevents potential disputes over unaddressed assets.

Adhering to Legal Requirements

It’s crucial to adhere to North Carolina’s legal requirements for wills. This includes aspects like the age and mental capacity of the testator, the presence and signature of witnesses, and the proper execution of the will. Familiarizing yourself with these requirements can help you avoid common legal pitfalls.

By following these best practices, you can create a will that effectively communicates your wishes and stands up to legal scrutiny. Talk with your estate planning attorney about your specific situation for more detailed legal information.

Legal Challenges and Disputes in Probate Court

Legal challenges to wills can be distressing for families, often leading to prolonged disputes. Understanding the common reasons for these challenges in North Carolina can help you create a more robust will.

Questioning the Testator’s Mental Capacity

One frequent ground for challenging a will is questioning the testator’s mental capacity at the time the will was made. The law requires that the testator understands the nature of the will and its effects, the extent of the property involved, and the identity of the people who are the natural beneficiaries.

Undue Influence or Coercion

Challenges often arise when it’s believed that the testator was under undue influence or coercion when making the will. This happens when an individual exerts excessive pressure on the testator, resulting in a will that reflects the influencer’s wishes rather than the testator’s.

Breach of Fiduciary Duties by the Executor

An executor who fails to adhere to their fiduciary duties, such as mismanaging estate assets or showing favoritism, can also lead to legal disputes. The executor must act in the estate’s best interest and follow the testator’s wishes as laid out in the will.

Managing property, both real and personal property, is a significant aspect of any decedent’s estate settlement process. They must handle everything from the distribution of the testator’s property upon their death to working with intestacy laws if a will is deemed invalid or doesn’t exist.

Improper Execution of the Will

Challenges may arise if the will is improperly executed according to North Carolina law. This includes issues like lack of proper witnesses or not meeting the requirements for a valid written, holographic, or nuncupative will.

Ambiguities in the Will

A will with ambiguous or conflicting instructions can lead to legal disputes among beneficiaries. It’s essential to ensure clarity and specificity in the will to minimize the risk of such challenges.

To minimize the risk of legal challenges to your will, it’s advisable to comply with the legal requirements and seek professional legal advice when drafting your will. For detailed legal guidelines, refer to the North Carolina General Statutes Chapter 31, which provides comprehensive information on the execution and validity of wills in North Carolina.

An Estate Planning Attorney Can Help

At Capital City Estate Planning, we understand that estate planning is more than just creating legal documents; it’s about securing your legacy and ensuring your loved ones are taken care of.

We see the challenges when a loved one passes away without clear instructions. Our role is to help you avoid such scenarios, whether you are drafting a will or deciding on an executor.

Updating your estate plan is crucial for those with major life events, such as the birth of minor children or acquiring a significant life insurance policy. An old will or one that doesn’t account for a significant change in a person’s life, like the addition of family members, can lead to complications.

Our team at Capital City Estate Planning ensures your estate planning documents, including attested wills and any electronic versions, are up to date, reflecting your current life situation and adhering to the legal requirements of North Carolina. We also assist in drafting new wills or adding codicils to an existing will.

For more detailed legal advice tailored to your unique situation, reach out to us for a FREE estate planning consultation. We are here to help you navigate the complexities of estate planning with ease and confidence.