No one wants to dwell on an unknown future, particularly the last chapter of one’s life. No one desires to think about medical care and finances for when they are elderly, or to wonder what will happen to their family and friends. But as people get married, have kids, and move up in their careers it becomes even more important for them to contemplate next steps, have tough conversations with their loved ones, and sit down with a lawyer to draft a valid will.
Why You Need a Will
Many people think they do not really need a will. They figure they do not have much to pass on or that their family will take care of it. However, creating a valid will is not difficult, and it offers many more benefits than inconveniences.
Five reasons you need a will are:
- Deciding who gets what. One of the most basic benefits of a will is that you decide who receives specific items or money when you pass. If you die without a will, your real and personal property is distributed according to North Carolina law. This does not ensure your cousin’s favorite records get to him, that money goes to your sister to help her pay for college, or that a large donation is made to the local animal shelter in your name. When you really contemplate the topic, you probably have specific wishes you would like to see carried out.
- Decide who does not get anything. In some situations, a person wants to disinherit a family member. The only way to do this is to make it clear in your will that this person is not to receive any portion of your estate or person items.
- Making arrangements for your children. If you are an only parent or not married, there may be a question of who would get custody of your children if you died while they were still minors. In your will, you can appoint a guardian for your children in case this worst case scenario occurred.
- Preventing family arguments. If you leave no directions for your family and friends to follow, they may all have different ideas as to how to do things. While much of the distribution of the estate is controlled by state law, there may be arguments about smaller, personal items. By deciding your wishes before you pass, you can prevent many squabbles.
- Financial and tax ramifications. By avoiding probate court, your estate and heirs can save on court and legal fees. Additionally, if you discuss the potential tax consequences with your attorney or accountant before devising your will, you can plan distributions to minimize the taxes your heirs pay.
All of these considerations are doubly important if you have a partner to whom you are not legally married. Many LGBT couples have not been formally married for a variety of reasons, but this means that each partner will not inherit from the other under state law. Non-married LGBT couples need to ensure that a will provides for their partners and minor children.
Elements of a Valid Written Will
Making a will is not as complicated as many people believe it to be. There are certain basic elements that need to be met, and these are easily achieved by working with a knowledgeable attorney.
Anyone over the age of 18 and of sound mind can make a will. Therefore you need to be an adult and never ruled incompetent by a court of law.
Your will should be typed, signed by yourself, and witnessed by at least two competent witnesses. You must sign the will with the intent that the document be your last will and testament. If you are physically unable to sign the document, you can direct another person to do so for you in your presence. You can sign in the presence of your witnesses or confirm your signature with them at a later time.
Your witnesses must each sign the will in your presence, but they do not have to sign each other’s presence.
The law does not require the witnesses to be disinterested, which means they do not receive anything in your will, but this is always the safest route to ensure no one can argue they influenced your decisions.
The will does not need to be notarized or receive any other stamp or seal. However, if you want your will to be self-proving, which means the court does not need to contact your witnesses, you and your witnesses must have an affidavit of your intentions notarized.
Most valid wills are neatly typed. However, there is a way in which North Carolina courts will accept a handwritten will. A holographic will is one that is entirely handwritten by the decedent and signed. It cannot be in someone else’s handwriting. It does not need witnesses.
While these types of wills can be accepted by the courts, there is always the risk that family will contest the will. If there were no witnesses to the creation or signing of the will, someone might allege it is a forgery. It can also be difficult to prove it is the decedent’s handwriting.
A nuncupative will is an oral declaration made in the presence of at least two witnesses. North Carolina courts accept this will if the decedent made this will when they were in imminent peril and actually died of that peril. For instance, if someone was badly injured in a car accident and gave an oral will in the hospital to two witnesses and soon after died of their injuries from the crash, this would be a valid will.
However, there is another restriction to this type of will. It can only be used to distribute personal property, not real estate. Homes and land can only be distributed by a written or holographic will.
Work With the LGBT Lawyers of Winston-Salem
Whether you are young or greater in years, married or single, a parent or not, you need a compassionate and experienced LGBT family attorney to help you draft your last will and testament. The offices of LGBT Law of Winston-Salem understand the specific issues LGBT individuals face in getting married and raising families, and will help you make plans that take care of your family and friends when you are gone.
Call the office today or contact us online to schedule an appointment.