At our office, we have seen Wills ranging from 2 pages to 60-70 pages. Obviously, a 70-page Will is going to go into a little more depth than a 2-pager. However, at a high level, most Wills have just a few main functions:
- Naming guardians for minor children;
- Naming the Beneficiaries: who will receive what from the Probated estate;
- Naming one or more Executors: who has responsibility for carrying out the Probate process;
- Explaining what powers the Executor has at his or her disposal.
Note that if the Decedent had a Living Trust, there may not be much to the Will, as the Trust will determine how assets of the Trust are distributed. The accompanying Will is often a “Pour-Over Will” designed to put any Probated assets into the Trust, so that there is only one set of instructions for how to distribute the assets.
If you have been able to find a Will for the Decedent, it will play a major role in the Probate process.
Unlike how it might be portrayed by Hollywood, there is no formal “reading of the Will” meeting. However, beneficiaries will have access to a copy of the Will once the Estate has been opened.
Let’s go step by step through the process of reviewing a Will for the first time.
Step 1: What Kind of Will is It?
In North Carolina, there are three valid forms of Will that may be accepted by the Court:
- Attested Will: This is the most common form of Will. It is a written document signed by the Testator and at least two witnesses.
- Holographic Will: This is a handwritten Will. The entire document must be in the Testator’s handwriting and it must be signed by the Testator.
- Nuncupative Will: This is an oral “death bed” Will dictated before two witnesses that were specifically requested to bear witness.
The North Carolina General Statutes provide separate very specific procedures for Holographic Wills and Nuncupative Wills. Due to the burdensome additional steps involved and uncertainty of whether the Holographic Will or Nuncupative Will will be accepted and properly interpreted, both Holographic Wills and Nuncupative Wills are rare used. For the remainder of this section, we will focus on the traditional Attested Will and will refer to it simply as the Will.
Step 2: Did the Decedent Sign the Will?
When opening an Estate in North Carolina, one of the very first stages is proving the Will. The Will is submitted to the county of residence of the Decedent, and it is the responsibility of the county Clerk of Court to determine whether the Will is valid. There are several criteria that the Clerk of Court will look at to determine the Will’s validity.
First and foremost, is it signed? The signature page of the Will is usually either the last or next-to-last page. Though there are some special provisions if the maker (also known as the Testator) was unable to write a full signature when the Will was made, a Will in North Carolina is not valid unless it is signed according to the North Carolina’s legal signing requirements.
If the Will is not signed, it will not be accepted by the Court.
Step 3: Were There Two Witnesses?
In addition to checking for the Testator’s signature, the Clerk of Court will look for signatures from two witnesses on the signature page. If either of the witnesses is a Beneficiary of the Will or a spouse of a Beneficiary of the Will, the Probate process will be more complicated. Similarly, the witnesses must be competent. This generally means that they are age 18 years or older and have not been deemed incompetent by a court of law. If you have any concerns about the validity of the witnesses to the Will, please seek legal assistance.
If the Will is not signed by two competent witnesses, then it is not a valid Will.
Step 4: Is the Will notarized?
If the Will has been notarized, it will be far easier to submit it to the Clerk of Court than without. While being notarized is not expressly required, if the Will was not properly notarized, additional steps will be necessary, such as locating the witnesses and having each one sign an affidavit, or otherwise proving that the Testator’s signature is authentic.
Check for the following:
- The Will is signed by the Decedent.
- The Will is signed by two witnesses.
- A notary paragraph like the one in the example is included.
- A notary has signed the document.
- The notary has stamped the document with a stamp that includes the notary’s name and county where he/she is a registered notary.
- The notary has indicated (either in writing or in the stamp) when his/her commission expires.
Step 5: Does the Will Contain a Self-Proving Statement?
Notarization of the Will in and of itself may not be sufficient. To constitute a valid “Self-Proved” Will—meaning a Will that stands on its own without any further affidavits from witnesses or proof of Testator’s signature—the Will must contain a formal Self-Proving Attestation. A Self-Proving Attestation generally recites that the Will was signed and acknowledged by the Testator before the witnesses and notary. See the “Signature Page Example” on the next page.
Step 6: Are There Signs of Tampering?
Check to make sure the Will includes all its pages.
While it is not required in North Carolina to initial the pages of a Will, if any page is initialed, check to see if they all are initialed. If there is any inconsistency, such as evidence that a page is missing or has been added, or if the paper type is different in different parts of the document, the Clerk of Court may use their discretion to question the validity of the Will.
If the signature pages are properly executed and there are no signs of tampering, the Will will be accepted by the Court unless a formal objection is filed. If an objection has been filed—or if you think an objection may be filed—please seek professional legal assistance.
Once you have determined that the Will appears to be valid, review the content of the Will to determine who will play the key roles: the Executor; guardians, if the Decedent had minor children; and the Beneficiaries.
Step 7: Who is the Named Executor?
The Will should identify an Executor—the person the Decedent identified to manage the Estate. There may be multiple Executors named in the Will. The Will should identify whether the named Executors are to serve as co-executors, or if they are to serve consecutively. If the Will specifically identifies the Executors as Co-executors, then all serving individuals must sign off on each action during the Probate process, unless specific waivers are obtained from each Co-executor.
If the Will does not specifically state that the Executors are Co-executors, the individuals are considered to be successor Executors. The second Executor would not serve unless the first Executor could not or declined to serve; the third would not serve unless the first and second could not; and so on.
Even though the Will may specify named Executors, they are not permitted to serve in this role until the Court has accepted the Will and issued a document called Letters Testamentary. The Letters Testamentary officially appoint the Nominated Executor as the actual Executor of the Estate.
The Executor, once appointed, will have the responsibility and authority to make decisions and act on behalf of the Estate. Once identified, confirm that the named Executor is willing and able to serve. Otherwise, a successor must be identified and the justification for appointing the successor Executor must be approved by the court.
Step 8: Who are the Beneficiaries?
The Beneficiaries are the people the Decedent designated to receive property in the Will. List the Beneficiaries and what each person is supposed to receive from the Estate according to the Will.
Keep in mind that just as the Executor must be approved by the Court, the distributions to Beneficiaries will also need to be approved. Creditors must be repaid first. And there are legal obligations determined by the state of North Carolina (such as the disposition of marital property) that may also apply.
Step 7: How Complex Will the Process Be?
Once we have determined that the Will is valid, that the Executor is willing and able, and that the Beneficiary distributions are feasible, there are several additional factors to consider when evaluating the complexity of the Probate process:
- What are the Executor’s responsibilities? Unless the Will waives certain requirements, the Executor may be required to fulfill certain requirements, such as acquiring a bond—insurance that they will follow through with their commitments—or filing inventory and annual returns for the Estate.
- What are the Executor’s powers? Often, a Will will list or otherwise document the actions an Executor may take on behalf of the Estate. If the Will does not explicitly provide the Executor with “expanded powers,” it may be necessary to get Court approval before proceeding with many actions commonly required when settling an Estate, such as selling property of the Estate.
- Are any named Beneficiaries or Executors likely to contest the provisions of the Will? The Court is required to consider the provisions of the Will. Probate proceedings are publicly available, and Beneficiaries are to be notified of certain actions taken by the Executor. If all parties do not agree to abide by the provisions of the Will, the Probate process is considerably more complicated.
Losing a loved one is hard. The days and weeks after a loss are often fraught with grief, questions, and unfortunately, family complications. It’s a terrible time to try to think through a legal process clearly. It’s often a challenge just to know where to start. Maybe you’re not even sure what questions to ask and whom to ask. How do you know you’re getting good advice and doing it right? You could probably use some help. Our Understanding Estate Administration guide can help. This guide will give you an overview of the probate and estate administration process in plain English. Request your free copy here.