Abraham Lincoln, the nation’s 16th president, died without a Will. Despite being a lawyer himself, he died intestate (without a Will) after being the first president to be assassinated in 1865. Despite death threats, Martin Luther King Jr. also died without a Will, and today his family is still fighting over control of his estate. Jimi Hendrix, Bob Marley, Kurt Cobain, Amy Winehouse, and Prince also all died without Wills, leaving their estates tied up for years and reduced by thousands of dollars’ worth of fees.
The Will is the one of the most important legal documents a person can create during his or her lifetime. Creating a Will may help your family avoid many potential issues they may face in the absence of a Will. If you do create a Will, however, how do you know if what you created is considered valid? Rules vary among states regarding the requirements needed to create a valid Will. Seek the help of the professional to determine the rules in your state.
Who can create a Will?
In North Carolina, the minimum age to make a Will is 18. In South Carolina, a person who is of “sound mind” and who is not a minor may make a will. In North Carolina, a minor lawfully married and of “sound mind” may make a Will. “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding. North Carolina states that a will shall be deemed invalid unless the will complies with statutory requirements.
What is required?
In North Carolina, a written document is required. The document must have been signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction. The will must be signed by at least two different witness who witnessed either the signing or the testator’s acknowledgement of the signature or of the will. In North Carolina, the attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.
Who may witness?
In North Carolina, any person competent to be a witness may act as a witness to a will. In South Carolina, a witness may be the notary as well. If one of the witnesses to the Will is a beneficiary of the Will in North Carolina, then an additional witness is necessary. In North Carolina, a gift to a witness, or their spouse, is void if there are not at least two disinterested witnesses to the Will. The signing of a Will by an interested witness does not invalidate the Will in South Carolina, but the gift to the witness is void unless there are at least two disinterested witnesses to the Will. An exception is if an interested witness would be a beneficiary if the testator died intestate, the witness will be entitled to receive the gift up to the value they would have received had the Will not been established. It is generally suggested that the witnesses to the Will be “disinterested,” which means they are not a beneficiary of the Will.
If a person dies without a Will, the beneficiaries cannot dispute the court’s distribution of that person’s estate under the intestacy laws. With a valid Will, a person can ensure that their property will be distributed according to their wishes and to whom. Creating a Will also helps your family in the future as they go through the process of distributing your estate.
To discuss creating your own Last Will and Testament, contact our estate planning lawyers today at (704) 608-3429.