In North Carolina, there are three types of wills, each with specific requirements outlined in Chapter 31 of the North Carolina General Statutes. While all three types are recognized, only a specific subset of one type should be used when planning your estate. In this blog, I will summarize the different types of wills and explain why a self-proved attested will is the only type of will that should be used for estate planning.
Attested Written Wills and the Crucial Subset: Self-Proving Wills
An attested written will is a written document signed by the testator (i.e., the will maker) and witnessed by at least two competent individuals. To be valid, the testator must sign the will with the intent to do so and either sign it personally or direct someone else to sign it on their behalf. The testator must then confirm to the witnesses that the document is indeed their will, either by signing it in their presence or acknowledging their signature in front of them. The witnesses are required to sign the will in the testator’s presence, but they do not need to sign in each other’s presence.
An attested written will can be either typed or handwritten. However, probating such a will when the testator dies can be problematic. To probate an attested will, at least two of the witnesses must provide testimony by affidavit that the testator signed or acknowledged the will in their presence and declared it to be their will. The witnesses must also affirm that the testator was of sound mind and not under undue influence at the time of signing, and that they are not beneficiaries of the will.
If one or both of the two required witnesses are deceased or unavailable, additional affidavits concerning the handwriting of the testator and the witnesses are required. In short, the probate process for an attested will can be cumbersome and, in some cases, may even be impossible.
Enter the self-proved will, which is a critical subset of the attested written will. A self-proved will is essentially an attested written will that includes a self-proving affidavit from the testator and the witnesses, signed in front of a notary public. This affidavit, when notarized, eliminates the need for further testimony from the witnesses to probate the will after the testator’s death. Essentially, if the testator and witnesses sign a self-proving affidavit in the presence of a notary public, the probate process is streamlined and much easier.
A self-proved attested will is the only type of will to use for estate planning.
Holographic Wills
Holographic wills are recognized in a little over half of U.S. states. These are wills that are entirely written in the testator’s handwriting and signed by the testator. No witnesses are required for a holographic will, but for a holographic will to be probated, at least three competent witnesses must testify that they believe the will is entirely in the testator’s handwriting, and that the signature is authentic.
While a holographic will is simple to create, it can be difficult to probate and administer upon probate. The lack of witnesses or formal attestations makes the probate process more challenging. Furthermore, holographic wills often do not include critical information like the appointment of an executor, waiver of bond, or a residuary clause, and their terms can be vague and open to interpretation. Holographic wills are also easier for disinherited or disgruntled heirs to challenge via a caveat proceeding.
I have never recommended a holographic will unless it is the only option available before death. If a holographic will is the only option before death, I advise making it clear and concise, and with only a residuary clause if possible. A residuary clause ensures all property is disposed of and does not pass via intestate succession. It typically contains language such as “all my remaining property” or “all the residue of my estate.” For example: “I leave all my remaining property, real and personal, to John Doe. I appoint Jill Smith as my Executor, and if she is unavailable, then I appoint Tom Jones. My Executor shall serve without bond.” The simpler, the better.
Nuncupative Wills (Personal Property Only)
Nuncupative wills are extremely rare and are only valid for passing personal property. A nuncupative will is an oral declaration made by a person who is either terminally ill or in imminent danger of death. The person must declare their intent for the will before two competent witnesses who are simultaneously present and specifically requested to witness the statement.
For example, if someone on their deathbed declares to two witnesses that they are leaving their 1968 Mustang to their nephew, Jimmy, this could qualify as a nuncupative will for the 1968 Mustang, provided the person dies shortly thereafter.
However, nuncupative wills face significant challenges. They can only be probated within six months of being made, unless they are reduced to writing within 10 days of the declaration. Additionally, there are other requirements, including notices to relevant parties and affidavits from the witnesses, that complicate the probate process.
From an estate planning perspective, nuncupative wills are not used. However, if a nuncupative will needs to be probated posthumously, an experienced probate attorney can help navigate the process, if appropriate and feasible.
Conclusion
In summary, North Carolina recognizes three types of wills: attested written wills, holographic wills, and nuncupative wills. From a formal estate planning perspective, the only appropriate will to use is a self-proved attested written will. While the other types of wills are valid, they are far more difficult to probate and administer. If you are planning your estate, contact Law Firm Carolinas in Greensboro, NC and we will ensure that your will is properly executed in a manner that will minimize complications.