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Wills in North Carolina (Part 1: Attested Written Wills)

Ferguson Hayes Hawkins, PLLC Jan. 25, 2017

Under North Carolina law, NCGS § 31-1, anyone over the age of 18 and of sound mind is entitled to make a Will. North Carolina recognizes three types of Wills: Written Attested, Holographic, and Nuncupative. (NCGS § 31-3.2) In this segment will will describe the Attested Written Will.

The most common type of Will is a Attested Written Will. This is the type of Will which most people have in mind when talking about Wills, and the type of Will which most people seek the assistance of an attorney in drafting. An Attested Written Will is a type-written document which is subscribed by the Testator, and witnesses by third-parties. The number of witnesses required vary by state, but most require two or three witnesses. North Carolina General Statute § 31-3.3 sets forth the criteria which must be met for an Attested Written Will to be valid.

These are, in short form, that:

  1. The Will be signed by the Testator;

  2. Attested by at least two competent witnesses;

  3. The Testator sign the Will with the intent of executing it;

  4. The Testator must signify his desire to have the witnesses attest (witness) the Will; (e) The attesting witnesses each sign in the presence of the Testator.

With an Attested Written Will it is possible to have attached to the end of the Will a Self-Proving Affidavit. The advantage to the inclusion of a self-proving affidavit is that affidavits of the subscribing witnesses will not later be required at the time of Probate. Between the time that the Will is executed and the time of Probate (following the death of the Testator) t is likely that witnesses will have moved, passed-away themselves, or prove to be difficult to locate for a multitude of other reasons. Similarly, if the Testator has moved since the time of the execution of the Will, then it may be even more difficult to locate the witnesses from a distant county or another state. While the requirements for self-proving affidavits vary from state to state, the requirements for most states who accept such affidavits are very similar. Hence, a Attested Written Will executed with a self-proving affidavit in one state may well be able to survive the relocation of the Testator to a new state. (It is always prudent to have existing Wills reviewed upon moving to a new state. However, the self-proving affidavit at least permits a ‘better than nothing’ chance of Probate in the new state if such a Will update has not occurred.)

The manner of executing the Will is a critical step. While Courts will attempt to interpret a confusing Will to infer and carry-out the intent of the Testator, the Will must first be able to be probated for this to occur. The Probate of the Will first requires that the Will be valid at its execution. To be valid the Testator must be competent and the requirements of a proper execution must have been strictly performed.