Wills, Questions and Answers

Questions Answers
What is a Will? A Will is the legal document that states where, how, and to whom you want your property to go at your death.
Why should I have a Will? If you do not write your Will, your property will pass according to the Intestate Succession Act, and may not pass (i) to the parties (ii) in the amounts and (iii) at the time you intend.
Does North Carolina simply give my property to my surviving spouse?
  • Only if you die with no children or parents.
  • If you have children, the law would divide your estate among your children and spouse, regardless of your children’s ages.
  • If you have no children but a parent is still alive, the law would divide your estate among your spouse and parents.
If my property goes to my spouse and children anyway, why do I need a Will?
  • The property is not divided evenly between your spouse and children, and your spouse may receive far less than your children, regardless of your children’s ages.
  • If your children are under age 18 and the property going to them is worth over $1,500, the property will be controlled by a court appointed guardian until age 18 is reached. At age 18, the property will be distributed to the child.
Who can make a Will? Anyone of sound mind and 18 years of age can make a Will. You simply have to know:
  • The natural objects of your bounty (usually next of kin),
  • The nature and extent of your property, and
  • The manner and effect of giving property at death.
What property does my Will control?
  • Any property solely in your individual name and in some cases jointly held property.
  • Your tangible personal property (jewelry, furniture, some collections, cars).
What does my Will NOT control? Among other things, your Will does not control the following (unless paid to your estate):
  • Life insurance
  • Annuities
  • 401(k)’s and IRA’s, and
  • Joint property with right of survivorship (often, your home and bank accounts).
When does my Will become effective? Your Will becomes effective only at your death.
Can I name a guardian for my children in my Will? Yes, you can name a guardian for your minor children in your Will, and the court, while not bound by your choice, will pay close attention to whom you name.
Once I make a Will, can I make another Will or revise my current Will? Are there limits on how many Wills I can make?
  • You can revoke your Will and make another at any time when you are of sound mind.
  • If you have only a small change, you may want to make an amendment, called a Codicil, instead of creating an entire new Will.
  • You can make as many Wills as you like, but only one will be valid.
What is the executor’s role? Your executor collects assets, pays debts and claims, and distributes what remains to your named beneficiaries.
Who should be my executor?
  • Someone you trust with your assets, who understands your wishes.
  • Someone able and knowledgeable about your affairs.
  • Someone willing.
  • Someone who can work well with your beneficiaries.
What if the executor I name is unwilling or unable to serve? You can name multiple alternates.
Will my executor get paid?
  • An individual acting as your executor could either not get paid, could get paid as you designate, or could petition the clerk of court for compensation from your assets.
  • A corporate executor will be paid.
Does my executor become liable for my debts?
Could my estate become liable for his debts?
  • Your debts are separate from your executor.
  • Though your executor has control over your estate, his creditors cannot get to your assets.
Should I just leave all my property to my spouse immediately at my death? Many people do leave their entire estate to their spouse immediately at death. However, good reasons exist not to leave your spouse everything at once, such as:
  • Tax planning,
  • Specific gifts of cash or property,
  • Charitable gifts,
  • Incapacitated spouse or a spouse not interested in finances or a business, or
  • A second marriage (if you have children by the first).
What if I do not want my assets to go straight to my family (or friends)? You may want to create a Trust. Trusts under Wills are valid at death, and can be funded with assets from your estate.
What happens to my Will if my spouse dies, or I am divorced? Wills provide for a spouse’s death by directing assets to other people. If you are divorced, however, all provisions in favor of your former spouse are revoked, including if you named your spouse as executor.
Can I write my own Will? Will a handwritten Will be valid? You can write your own Will, and so long as it is entirely in your own handwriting, it will be valid. (Due to the complexity of the laws governing Wills and estates, writing your own Will is not recommended.)
Can I just label my personal belongings with names of beneficiaries? Simply labeling property to go to individuals is not a legal way to transfer property, and could be ignored.
Do I leave funeral instructions in my Will? What about instructions regarding organ donation or donation of my body to research? NO. Your Will typically will be read after disposition of your remains, when such instructions are no longer useful.
When should I make a new Will?
  • When you have lost your original Will,
  • When you marry or remarry, or have children,
  • When a beneficiary or spouse dies,
  • Whenever your desires concerning your property change, and
  • As laws (especially tax laws) change.
What if the persons who witnessed my Will are dead, missing, or unavailable? It is not necessary to find witnesses at your death if a notary public properly certifies the signing of the Will by you and the witnesses. If a notary was not present at the signing of your Will, your Will should be re-executed to save from any future problems in locating witnesses.