A relative recently passed away leaving a significant number of personal assets and property. Since his passing, my family has been fighting over who should get what. We found a document in which he listed everything he owned along with who should receive it. Would this document count as his Will? – Where There’s No Will, There’s A Fray
When most people think of a Will, they think of what’s called a Last Will and Testament. This document will be in writing, signed by the testator (the one who makes the Will), and signed by two witnesses. An alternative to the testator’s signature is for someone to sign on his or her behalf, in the presence and at the request of the testator, and witnessed as discussed above.
The document you are describing will need to meet at least the above requirements to be considered an attested Will. Most attorneys take an extra step to make the Will “self-proving.” This is done by using an affidavit, signed by the witnesses, and then having the affidavit properly notarized. The advantage of the self-proving Will is it allows the beneficiaries to skip the part of probate which requires verification of the Will’s authenticity.
If the document you found doesn’t meet the above requirements, it may still be considered an unattested Will depending on the circumstances. North Carolina also recognizes two types of unattested Wills: holographic Wills and nuncupative Wills.
A Holographic Will must be written entirely in the testator’s handwriting in order to be valid. The testator must also sign the Will or include his or her name, in his or her handwriting, within the Will. Finally, the holographic Will must be found in a safe place following the testator’s death. That can include:
• A safe deposit box
• Among the testator’s valuable papers and effects
• In the possession of an individual or company where it was placed for safekeeping
The last type, a nuncupative Will, won’t apply in your case because it’s an oral Will. It’s still worth knowing about though. The nuncupative Will is made by someone experiencing their last sickness or who is about to die. To be valid, the testator must not survive the sickness or imminent death. There must also be two competent witnesses who have been specifically requested by the testator to bear witness to the utterance of the testator’s final wishes. However, nuncupative Wills can only dispose of personal property. These Wills do not dispose of real property.
If the document you located qualifies as a Will, it likely falls into either of the first two categories. The circumstances surrounding this document will be relevant to determining its status. You should speak with an experienced probate or estate planning attorney who can properly advise you.
Your relative’s case also illustrates the importance of having a well-drafted, properly signed and executed, comprehensive Last Will and Testament. Work with an attorney to prepare your Will so it accurately reflects your final wishes. By executing a Will, you can reduce the likelihood that upon your death your family will experience the same disputes you’re going through now.
Disclaimer: The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and F. Lee Weaver or Weaver | Budd, Attorneys at Law. Submit your questions for The Fine Print to: firstname.lastname@example.org