So you did it—you put together a last will and testament to ease the burden on your loved ones and ensure they are taken care of after you are gone. Although the requirements for a valid typewritten will in North Carolina are not vast—you must be 18, of sound mind, and sign the document in the presence of two disinterested witnesses—there are much more specific legal requirements that must be met in order for a “valid” will to actually take effect in the event of your death. It is standard practice that these requirements be completed while you, the testator, are still alive when possible. These requirements are embodied in the procedures for proving, changing, and revoking a will.
Self-proving a will for probateIn order to admit a will to probate, which is the legal process of carrying out the wishes in the will, a typewritten will must be “proven” valid. This is accomplished via the testimony of two (2) witnesses who attest to the testator’s sound mind and signature who witnessed the testator sign the will. While the testator is still alive, a self-proving affidavit may be executed by the testator and the two witnesses under oath before a notary public. If the self-proving affidavit is properly executed, the witnesses do not need to testify in order for the will to be admitted to probate. If a self-proving affidavit was not executed and one of the original witnesses to the will is now dead, incompetent or cannot be found, proof of the missing witness’s signature may suffice. However, if neither of the original witnesses is available, then two (2) new witnesses may testify as to the authenticity of the testator’s signature to satisfy the clerk of court that the will is genuine.
Changing or revoking a last will and testamentCircumstances can change, and so can your wishes. A “last” will and testament doesn’t necessarily have to be the permanent version of the will. If you have executed a will, keeping it updated to accurately reflect your current wishes is just as important as making one was in the first place.
Codicil: A North Carolina will can be changed at any time before your death through either a codicil, which is an amendment or addition to an existing will, or by creating an entirely new will that properly revokes any previous wills. Codicils must be executed with the same formalities as a written will (i.e. you must be competent, have proper witnesses, et cetera).
If a codicil makes no reference to the previous will but contains provisions that are slightly inconsistent with the prior will, the will and codicil will be read together to the extent possible. However, the codicil will effectively revoke the inconsistent portions of the will.
Handwritten changes to a handwritten will are permitted, but there are certain requirements that must be completed in order for a handwritten change to a typewritten will to be effective.
Subsequent will: A typewritten will can be revoked in its entirety by a subsequent written will that is properly executed. In addition, a typewritten will can serve to revoke a previous handwritten will, as a handwritten will can serve to revoke a previous typewritten will. However, an oral will cannot revoke a typewritten or handwritten will.
The same rule above for inconsistent codicils applies to subsequent wills that do not explicitly revoke the previous will: the two documents will be read together to the extent possible, with the second will controlling and revoking the previous will as to any inconsistent portions.
Physical destruction: You, as testator, may also revoke a written will by burning, tearing or otherwise destroying the document with the intent and purpose of revoking it (or by directing another person to do so in your presence). Physically destroying one (1) executed copy of a will serves to revoke all executed copies in existence. Simply intending to physically destroy a will is not sufficient to meet this standard in North Carolina. For example, if you call your attorney, who is holding your will for you, and tell him or her to destroy it but they fail to, this will not revoke it.
Presumption: If a will was last seen within the testator’s possession and control but cannot be found after his or her death, there is a presumption under North Carolina law that the testator physically destroyed the will with the intent to revoke it. However, this presumption can be overcome with evidence that someone else had access to the will and must have destroyed it.
Divorce: If a testator divorces after executing their will, the divorce will invalidate the provisions in their will that were in favor of the former spouse. However, a divorce will not serve to alter a life insurance policy that names a divorced spouse as beneficiary.
As described within this article, there are very specific procedures that must be carried out in order for a will to be self-proven, changed or revoked. This is why it is so important that you consult with an experienced estate law attorney when facing any of these situations. If you have gone to the trouble of executing a will in the first place in order to protect your loved ones after your death, it is worth ensuring that it is done properly. Arnold & Smith, PLLC is a civil and criminal defense litigation firm in the heart of Charlotte, North Carolina that takes pride in serving clients throughout the Queen City and surrounding counties. Please contact our office to schedule an appointment with one of our skilled estate law attorneys.