Is Your Will Valid? The Importance of Execution
So you have written a simple will that clearly demonstrate your wishes regarding the disposition of your assets. Your job is done, right? Think again. A will must also be properly executed in order for it to become legally binding. Execution of a will is a technical term for the signing process. The will must be signed and witnessed according to the requirements of the law in order for it to become valid. Complications can happen in the case of an improperly executed will. Here are two of the most common issues that arise if a will is not signed or witnessed properly:
Self-Proving Certificates – In the case of a self-proving will the document speaks for itself and the probate court will not need to make a separate inquiry into the validity of the testator’s and witness’ signatures. The North Carolina General Statues (§ 31-11.6) gives an example of a self-proving certificate that should be included in a will. You and your witnesses must sign this certificate in the presence of a notary.
If your will does not contain a proper self-proving certificate, after your death your executor or heirs must track down your witnesses and have them sign and notarize an affidavit (AOC-E-300). If they cannot locate all of the witnesses, then the will cannot be admitted into probate. If there was an older will in place that has a self-proving certificate, then the estate will be distributed according to the valid prior will. If there is no valid self-proving will in place, then the estate will be distributed according to the NC Intestate Succession Act.
Interested Witnesses – In North Carolina, a valid will must be signed in the presence of two competent witnesses. Unless you take steps to avoid it, a complication will arise if an heir to your estate serves as witness to the signing of your will. A witness is considered “interested” if they are eligible to receive a gift under the will.
The states widely vary on the treatment of interested witness. In North Carolina, if one of two witnesses is an interested party then the portion of the will that gives the interested witness a gift is invalid. In this case, the rest of the will would still be valid. However, if there are more than two disinterested witnesses in addition to the interested witness, the entire will is considered valid. Consult a local attorney if you have any questions about the validity of your will.
Clement Law Firm, Asheville, NC -- www.eclementlaw.com -- 828-281-8160