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Last Will & Testaments Attorney in Cary, North Carolina

What Is a Last Will and Testament ("Will" or "Last Will")?

A Will is a document created according to State law that expresses how you want your possessions and property handled and distributed after you die. Your possessions and property are your “estate”. The people in the Will are the testator, executor or personal representative, and the beneficiaries (sometimes called devisees). The Testator is the person making the Will who is expressing last wishes and directions regarding his or her estate. The executor is the person the testator nominates to administer the estate. And the beneficiaries are those who will receive the net assets of the estate after creditors and expenses are paid.

What Are the Types of Wills?

The most common is an attested Will, which most often is drafted by a licensed attorney in the state where you reside, which means it is written, witnessed, and notarized in accordance with the method required by state law. It is best to have professional legal advice and assistance. The other two, far less common types of Wills are holographic and nuncupative. A Holographic is a signed handwritten Will by the person. And a nuncupative Will is an oral death-bed Will. Both holographic and nuncupative Wills must meet specific criteria and timing in order to be valid. They also pose many problems in probate court.

What Happens if You Die Without A Will?

Technically, in North Carolina, you can't die without a Will. No, the law doesn't require you to get your own Will. You are certainly free to do nothing. If you die without having made your own Will, our state provides one for you. No, this is not welfare or charity. It is the Intestate Succession Act. This is a law that directs the court probate system and your family on how to divide your net estate. Our elected officials wrote this law in a way they believed the average person would want their estate divided. However, I have yet to meet someone who wanted it divided according to this law. If you are married and are survived by child(ren) or parent(s), your legal spouse does not get it all! He or she has to split it with your child(ren) or parent(s).

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How Can I Execute a Will?

Executing a Will means properly signing and authenticating it. Authentication is important because it is the manner in which the probate court can rely in order to confirm it is legal. A will only become effective upon death. After death, the testator cannot tell us, or the Probate Court, what he or she wanted to happen. Therefore, it is best to work with a licensed attorney who is an estate planner to make sure the many required specific formalities are followed. Generally speaking, the person signing the Will must do so with two disinterested witnesses and a notary.

How Should I Pick an Executor?

An executor is a very important person who will have a lot of responsibility, duties, and work to do. You must trust this person. Often it is your spouse or one of your children. You won't be around to ensure your executor carries out those duties the way you want, so again, you must trust this person. Also, an executor must be sworn in by an official at the county courthouse where you resided, and where any out-of-state real estate is located. So geographical considerations must be part of your decision. It would get really expensive to have your oldest child from California fly to North Carolina several times after the funeral to fulfill the duties of the executor. The cost could be borne by your executor or your estate. Either way, it is expensive. Often it is best to have a local person, if possible. If it is not possible, then you want to begin to think about avoiding probate and the court system so the executor duties are not required to be supervised by the local court system.

What Does an Executor Do?

An executor is the person in charge of handling your estate after you pass away. It is a person who goes through your home and inventories your possessions, collects your mail, inventories all your assets, finds your important documents, do a lot of court paperwork, files paperwork with the court, takes an oath to uphold the law and administer your estate, is accountable to the clerk of court, takes control over all your estate assets, pays creditors and expenses, keeps a detailed accounting everything he/she did, fills out more paperwork for the courts, makes filings with the court on multiple occasions, and distributes your estate to your beneficiaries. The beneficiaries often look to the executor to complain or express dissatisfaction if things don't go the way they want or thought they should. Executors often take the brunt of impatience by beneficiaries because they expected their inheritance to come quicker than the Probate Court takes.

Do I Need a Will if I Have a Trust?

Some may think a Will is not necessary if you have a Trust, but it is! Even if you have a fully funded Trust, there are many common situations that can arise where a Will is needed. When you have a Trust you need a different kind of Will, you need a “Pour-Over” Will. A Pour-Over Will is a proper Will that serves the primary purpose of directing any asset, not in your Trust to your Trust For example, sometimes an estate tax return ends with the government issuing a refund to the deceased person. Since the person cannot cash or deposit the check, the Pour-Over Will directs it to the Trust.