What is a Last Will and Testament


A North Carolina Last Will and Testament, when prepared and executed properly by a person who is an adult of sound mind with legal responsibility for his- or herself, is a formal document that specifies how their assets or estate will be managed and distributed after their death. The person who dies is formally referred to as the decedent. If the decedent has minor children, the Last Will and Testament may also be used to designate who they want to care for their children and who they wish to handle their children’s inheritance/finances until each child comes of age (usually 18, but you can designate a different age) to handle their finances on their own.

In a Last Will and Testament, the decedent usually also names a personal representative—or co-personal representatives (two or more persons acting together in this capacity)—to manage the matters of the estate. The personal representative is the person who gathers all of the information about the decedent’s debts and assets, pays outstanding debts using the assets on behalf of the estate, and ensures that the decedent’s property is distributed as specified in the Will, so this is a job with a lot of responsibility, and the personal representative selected is usually someone the decedent really trusts to follow through on the details and with his or her wishes.

If a person dies without having a valid Last Will and Testament (which usually—in most states—means it must be properly witnessed, as well—not just signed), someone will usually be appointed by the court to be the personal representative and will pay the decedent’s debts, liquidizing assets as necessary to do so. Then the remaining assets will be distributed among the decedent’s heirs according to the laws of the state the decedent lived in.

In some states, if one spouse dies leaving behind a husband or wife, that living spouse will inherit all of the decedent’s property in the absence of a Last Will and Testament stating to the contrary. In other cases, the decedent may have specified a particular beneficiary to inherit a life insurance policy, retirement account, or other asset, and that beneficiary designation will dictate who receives those assets in the absence of a North Carolina Last Will and Testament.

The important thing to note is that anyone who wishes to designate how their assets will be distributed after their death should prepare and properly execute a Last Will and Testament to ensure their wishes are known and honored. If they don’t, they may be leaving it up to chance, the laws of the state in which they reside at the time of their death, or a court of law as to how their final affairs will be settled.  North Carolina free information on last will and testament forms.

Legal Requirements for Last Wills in North Carolina

When it comes to leaving a testament (or will) in North Carolina, legators (people creating the will) need to follow some specific requirements. It is the testament where one can express their vision on how their property must be divided (and between whom) after their death. Do not confuse this will with a living will, as it is another type of legal paper. A living will is for those wanting to leave the instructions in case of becoming incapable of making decisions and incapacitated.

According to North Carolina law, it is not necessary to leave a testament (and express your will on the future of your property, both personal and real), but when people do not have such a testament (they are called "intestate"), the North Carolina courts complete the procedure of dividing the property on their own. Quite often, their decisions do not highlight the will of testators (the one they would theoretically have), so it is recommended to create a will on your own.

Usually, when there is no testament, the courts divide the property by the next principle: the first candidates on the property receiving are spouses, children, and parents of a legator. The shares of the property (both personal and real) for spouses depend on the number of children a testator had.

If there are no spouses, parents, or children, the next candidates are grandparents, siblings, uncles, and aunts. The closer relation of relatives to a testator, the higher possibility they inherit the property.

Last WIll Properties

Note there are properties that testators cannot include in their will. This property can be:

  • The property gained in the joint tenancy with the right of ownership as a surviving spouse also has the right to manage it. Even if a testator does not include their spouse in the will, a surviving spouse still can claim for some part of the property.

  • The beneficiary of a life insurance policy.

Additionally to distributing the property to the family members (this is called testamentary trusts), testators have additional options of using their assets (these assets include vehicles, homes, bank accounts, business holdings, etc.). These options are:

  • "Pet trusts" — when testators make a trust for their pets. In other words, there will be care for the pets of a testator until the last of them dies. Testators creating such a trust can be sure nothing bad happens to their pets even after their death (the death of testators).

  • Name a legal guardian for minor children.

  • Make gifts to charity organizations.

Testators have the right to make amendments to the existing will any time they want. They can do it by following the same procedure as they did while creating the testament.

How to complete the Last Will

Also, there is a possibility to revoke the testament. Testators (or people acting under a testator's guidance and in their presence) can do this in the ways:

  • They can tear, cancel, destroy, obliterate, or burn the testament.

  • They can create a revocatory will where they express their intention to cancel the existing statement.

According to the North Carolina laws, the wills must be submitted to the probate court to become legal. Without this, the property cannot be distributed. If testators have the property of a small value, they do not need to go to the probate court and complete any forms. If the remaining property is of a big value, legislators need to apply for "Letters Testamentary" (along with the written will).

The will can be completed in the below-mentioned ways:

  • In oral form — such wills are named nuncupative, and there are some restrictions relating to this.

  • In written form — these wills are named holographic, and they need to meet the law's criteria.

The testament must meet the next requirements:

  • Legators have to be of a healthy mind.

  • Legators must be over 18 years old.

  • There have to be at least two witnesses who sign the paper after a legator does.

  • Legators need to sign the will (or someone under a testator's guidance has to do this).



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