As the sage Ben Franklin once penned, “two things in life are certain, death and taxes.” No one likes to think about it, but we all will die one day. And one thing most of us do care about is who benefits from our hard work and will receive our worldly possessions when we pass away.
That is why anyone over the age of 18 should have a last will and testament.
Writing a will and a medical directive is the last chance to direct the show; to have things your way. One may think that “everybody knows I want my money to go to the orphanage.” But if it is not in writing, and notarized with reliable witnesses, a person’s wishes might not be fulfilled.
Young adults especially tend to think they have a lot of time to get a will written, but death is often untimely. If you own a car, a little Alaska Air stock purchased by Grandma, or even sentimental family items like Great Grandpa’s sword and scabbard, and if it matters who should receive any of those things, a will should be written stating who or what organization should inherit them.
In North Carolina, several types of wills can be considered legal, including oral, handwritten, and typed. But although it may have appeared on an episode of Matlock, video wills are not valid in North Carolina nor in most U.S. states. There are rare exceptions to deathbed oral and video wills but there are stringent requirements to validate them.
Typically, testators (those with a will) select someone who can be trusted such as a family member, close friend, or business associate to act as executor (one who distributes your goods). For those who die intestate (without a will) in North Carolina, the state acts as executor or administrator.
“North Carolina’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews,” states NOLO.com, a do-it-yourself legal document guide published since 1971.
If a decedent did not make a will and has no living relatives, the state escheats or reverts property into the state’s coffers. That’s right, the state can decide what to do with your assets.
A signed hand-written will, called a holographic will, is valid in North Carolina if the entire document is in the handwriting of the testator. It does not require witnesses or notarization to be valid, but it is also not a very secure way to have your wishes honored.
An oral (or nuncupative) will might be valid, but it must be uttered in the presence of at least two witnesses and fit very specific circumstances: if the testator is dying from a “last sickness” or is in imminent peril, and in fact dies as a result of that sickness or peril. North Carolina only permits nuncupative wills for the disposition of personal property. Real estate can only be bestowed by a written or holographic will.
Other than dispersing assets, a testator can use a will to name a legal guardian for children, divide bank accounts and other assets, and provide for pets.
Wilmington attorney Geannine Boyette stresses the importance of granting Powers of Attorney as well as having a will.
“People don’t think about it, but Powers of Attorney are especially important for married people,” Boyette says. “Lots of times spouses are under the impression that because they’re married, they can make any decision needed for a spouse if they are incapacitated, but that is not the case.”
Medical directives and what are called living wills are increasingly popular. They list a person’s preferences for medical treatment that may be required when the person is unable to express those desires due to an illness, coma, or other emergency.
These measures are legally put in place, typically at the time a will is drawn up. The wishes stated in a living will are usually carried out by another individual through a durable power of attorney.
Items can be selected from a standard list of medical treatments in a living will. For example, a person might say yes to having CPR performed, but no to dialysis, a feeding tube, or other extraordinary treatments. The living will may also list a person’s desire to be an organ donor. If someone wants to donate their body to scientific research, contact with a medical university should be done before an end-of-life situation.
Determining the type of will, whether simple or complex, and the use of a living will can be different for every person. The more assets involved, the more complicated a will can become, but it doesn’t have to be difficult.
“For some, a simple will suffices. Others may want to make provision for minor children or create protection in the event of incapacity. Most will need a will at the minimum, and possibly a revocable trust to avoid the exposure of their personal assets to the public through the probate process,” states Wilmington attorney Shane T. Johnson’s website.
A trust is an interesting tool. It can be utilized to avoid probate of a will. Probate is done in a courtroom and is the legal administration of a person’s estate that is overseen by the Clerk of Superior Court. With courts being backlogged, it could mean many months of waiting until a will can be validated or fulfilled.
Salines-Mondello Law Firm is one of the area firms specializing in elder law and estate planning. They explain the use of trusts to avoid the probate process on their website, listing both pros and cons.
Numerous sources are available to explain what is legal in North Carolina in the way of wills and trusts. Among the best are the N.C. Bar Association and Judicial Branch websites, which help simplify the difficult law jargon.
Many local attorneys offer free first-time consultations and some conduct seminars on estate planning throughout the year.
A will should be updated as life circumstances change, such as via a marriage, divorce, moving to another state, or birth of children. Boyette points out that changes in tax and retirement laws are also good reasons to update or review a will, especially if it was written more than a few years ago.
A will may be the most important document anyone writes in their lifetime. Common sense suggests not waiting until it is too late.