What is a will?
A will is a legal document that allows you to dictate who will inherit your property when you die. You can keep your will general and leave the entirety of your estate to your children, grandchildren, or whomever you wish to inherit from you. You can also choose to be more specific about who will inherit certain parts of your estate. You can choose different individuals to whom to leave your house, car, and personal property. You can leave important personal possessions to a specific individual, like leaving your engagement ring to your son or leaving your antique furniture to your daughter. You can often even leave your private club memberships or frequent flyer miles to a specific person in your will!
Another function of a will is to provide for minor children in the unlikely worst-case scenario of your death before your children reach the age of majority. A will allows you to name who you want to be the guardian(s) for your minor children in the event of your death. A will can also create and define a testamentary trust to provide financially for your children. You appoint a person to serve as the trustee to manage the trust funds on behalf of your children. The trustee can be the same person as the guardian, but does not have to be.
Finally, your will names an executor to administer your estate. It is wise to name a back-up executor if the first level executor is unavailable to serve in that role.
Each state has specific rules that must be followed for a will to be considered valid. Many people will execute all four major estate planning documents (Will, Durable Power of Attorney, Healthcare Power of Attorney, and Advance Directive) at once as an overall estate planning strategy.
What types of wills are there?
There are two types of written wills in North Carolina: an “attested written will” and a “holographic will.” There is also a third type of will acceptable in North Carolina called a noncupative will, which is an oral or spoken will.
In South Carolina, a will must be in writing and signed by two competent (uninterested) witnesses to be valid. Handwritten or oral wills are not permitted in South Carolina.
Attested Written Will
To be valid in North or South Carolina, an attested written will must be signed by you and signed by at least two competent and disinterested witnesses who watched you sign your will. This is the type of will our office can prepare for you. A suitable witness is typically someone who does not stand to inherit from you if you died without a will and will not inherit from you within the written will. If you execute a will in our office, we will provide two competent witnesses.
A holographic will is a will that is written entirely in your handwriting and signed by you. No witnesses are required for a holographic will. A holographic will is valid if it was found in a place intended for safekeeping after your death. A holographic will is subject to strict legal requirements and may not be accepted by probate. This type of will is only valid in North Carolina if it is written exactly as North Carolina law requires. The safest option for distributing your assets pursuant to a will is an attested written will prepared by an attorney to ensure compliance with state laws.
A handwritten will that does not contain two witnesses’ signatures is not valid in South Carolina.
A noncupative will is an oral will spoken by you while you are essentially on your death bed, with two competent witnesses who are there solely to witness your dying verbal testament. A noncupative will cannot dispose of real estate or real property but can only dispose of personal property (like a car, jewelry, household furnishings, etc.).
A noncupative will is not valid in South Carolina.
What should I include in my will?
You should name your beneficiaries who you want to receive your real property, personal property, and any other property that you own upon your death. Your beneficiaries can be your spouse, children, parents, other relatives, friends, charitable organizations, or some combination of the recipients mentioned.
You should name your executor who will make sure the terms of your will are followed.
You should appoint guardians for your minor children, who would take custody of your minor children if you died.
If you are establishing a trust for your minor children, you should appoint a person to serve as trustee to manage the assets on behalf of your children.
Why do I need a will?
To protect your spouse. If you do not execute a will that disposes of your assets, laws in South and North Carolina divide your property amongst your descendants. If you think all of your property automatically goes only to your spouse when you pass away so you don’t need a will, think again! In South and North Carolina, if you die without a will, your spouse will have to share your assets with your other descendants. If you have a child, your child will take a share of your assets. If you don’t have a child, but you have surviving parents, your parents will take a share of your assets. Don’t leave your spouse vulnerable– execute a will to protect your spouse financially.
To protect your minor child(ren). If you have a minor child, you need to have a will that appoints a guardian for your child if both parents pass away before the child reaches the age of majority. In a worst-case scenario, you want to make sure that you have appointed a guardian who will raise your child. You do not want your child to be raised with a relative not of your choosing. You protect your child by appointing a guardian through a valid will. Additionally, you protect your minor child from spending through an inheritance at a young age by establishing a trust in your will and appointing a trustee to manage your assets for the benefit of your child until they have attained a certain age and maturity level, as defined by your will.
Where should I store my will once it is executed?
Store your will in a safe, dry location. Inform your chosen executor, back-up executor, chosen guardian(s), trustee(s), and close family members where the original will is located. In both North and South Carolina, your original will is needed for probate. A copy will not suffice.
If you are interested in preparing a will, please click the button below to schedule a consultation or reach out to our office by phone. We can help you draft a will, which allows your loved ones to carry out your wishes even after you are gone.
Lindsey Dasher is the Managing Partner at Dasher Law PLLC