North Carolina Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property and who administers your estate (your personal representative) after you die. It can also name a guardian for your minor children.

2. 2

   North Carolina requires two witnesses. An attested written will must be signed by the testator and witnessed by at least two competent witnesses under N.C. Gen. Stat. Section 31-3.3. Naming a beneficiary as a witness is legal, but if fewer than two other disinterested witnesses also sign, that interested witness and their spouse take nothing under the will (Section 31-10).

3. 3

   A self-proving affidavit is available and needs a notary. North Carolina lets you attach a sworn affidavit, signed by the testator and witnesses before an officer authorized to administer oaths (a notary public), under Section 31-11.6. This lets the will be admitted to probate without locating the witnesses later; it is the only step in the process that requires a notary.

4. 4

   A handwritten (holographic) will is valid here. Under Section 31-3.4, a will written entirely in the testator's own handwriting and subscribed by the testator is valid with no attesting witness required.

5. 5

   The will itself needs witnesses, not a notary. North Carolina does not require the will to be notarized to be valid; two competent witnesses satisfy the execution requirement under Section 31-3.3. A notary is used only if you choose to add the optional self-proving affidavit.

6. 6

   You must be 18 and of sound mind. Any person of sound mind who is 18 years of age or older may make a will in North Carolina under Section 31-1.

7. 7

   You can revoke a will by a later will or by physical act. North Carolina lets you revoke a will with a subsequent written will, codicil, or other revocatory writing executed the same way as a will, or by burning, tearing, canceling, obliterating, or destroying it with intent to revoke (Section 31-5.1). Divorce or annulment after the will is signed also revokes provisions for the former spouse unless the will says otherwise (Section 31-5.4).

North Carolina Requirements for Last Will and Testament

• Sign Before Two Competent Witnesses

  An attested written will in North Carolina must be signed by the testator and attested by at least two competent witnesses under N.C. Gen. Stat. Section 31-3.3. The witnesses must sign in the testator's presence, though they need not sign in each other's presence.

• Avoid Naming a Beneficiary as Witness

  A beneficiary can legally witness a North Carolina will, but under N.C. Gen. Stat. Section 31-10, if there are not at least two other disinterested witnesses, the interested witness (and that witness's spouse) takes nothing under the will. Choosing disinterested witnesses avoids this risk entirely.

• Consider an Optional Self-Proving Affidavit

  North Carolina lets you attach a self-proving affidavit under N.C. Gen. Stat. Section 31-11.6, sworn by the testator and witnesses before a notary public, so the will can be admitted to probate without locating the witnesses later. This is optional and is the only step that requires a notary.

• No Notary Required for the Will Itself

  North Carolina does not require the will itself to be notarized. Two competent witnesses satisfy the execution requirement under Section 31-3.3. A notary is needed only if you add the optional self-proving affidavit under Section 31-11.6.

• Handwritten (Holographic) Wills Are Recognized

  North Carolina recognizes a holographic will, written entirely in the testator's own handwriting and subscribed by the testator, with no attesting witness required, under N.C. Gen. Stat. Section 31-3.4.

• Meet the Minimum Age and Capacity Standard

  You must be at least 18 years of age and of sound mind to make a will in North Carolina, under N.C. Gen. Stat. Section 31-1. The statutory self-proving affidavit form describes this capacity as being of sound and disposing mind and memory, and under no constraint or undue influence.

• Follow the Statutory Revocation Methods

  North Carolina lets you revoke a will only by a later written will, codicil, or other revocatory writing executed the same way as a will, or by burning, tearing, canceling, obliterating, or destroying it with intent to revoke, under N.C. Gen. Stat. Section 31-5.1. A subsequent divorce or annulment also revokes provisions for a former spouse unless the will states otherwise (Section 31-5.4).

• Name a Personal Representative

  Name a personal representative (North Carolina's term for executor) to administer your estate, and consider a successor in case the first choice is unable or unwilling to serve. A seal is not required for the will to be valid, under N.C. Gen. Stat. Section 31-3.6.