Do I Need a Last Will and Testament?… Yes!
We tend not to think about creating our last Will and Testament until some event arises to make us aware of our mortality. In truth, preparing for the unlikely or unexpected should be a safeguard against unneeded trouble for our loved ones in times of grief.
What does dying intestate mean? Very simply, intestate means that that the individual (testator) did not have a Last Will and Testament. If this occurs then the court will determine the allocation of the deceased’s assets, in line with the state statute. This is not always where we would want our belongings to go and can become a lengthy and/or costly process.
How the court divides assets by intestate succession (See N.C. G.S. 29, for more detail):
With spouse and children living:
1 child: spouse inherits 1⁄2 of the intestate real estate and a portion of the intestate personal property (if the personal property is worth $60,000 or less, the spouse inherits all of it; if there is more than $60,000 worth of personal property, the spouse inherits $60,000 plus 1⁄2 of the balance) then the child inherits 1⁄2 of the intestate real estate and any intestate personal property remaining
2 or more children: Similar to one child except for the portion of the division is 1⁄3. With living children but no spouse: Children inherit everything With living spouse (no children) and no surviving parents: Spouse inherits everything With living parent(s) and no spouse or children: parents inherit everything With living spouse and parents (no children): spouse will inherit 1⁄2 of the intestate real estate and a portion of the intestate personal property (if personal property is worth $100,000 or less, the spouse inherits all of it; if the value is more than $100,000 worth of personal property, the spouse inherits $100,000 plus 1⁄2 of the balance) parents then inherit 1⁄2 of the remaining intestate real estate and any intestate personal property.
So can’t I just write a Will by hand or tell someone where I’d like my belongings to go? Although there are types of Wills that are either spoken (nuncupative) or handwritten (holographic) they are still bound by certain requirements to legally to make them valid.
Specifically, Nuncupative wills must be spoked before two witnesses, simultaneously, to be considered valid. Then those witnesses must both be able to corroborate the wishes of the deceased. This could meet many challenges.
For instance: what if one or both witnesses’ are either unable or choose not, to verify the account. Or what if during the moment the testator wishes to speak the terms of the will two witnesses are not available at the same time.
Holographic wills, on the other hand, do not need witnesses but must be in the testator’s own handwriting. Again, these might be easier to contest if the handwriting is unclear or does not appear to be the same as an earlier sample of the deceased’s.
So what is the best route? It is generally suggested that you obtain an Attested Written Will. This type of Will has two witnesses (which can sign at different times, if needed, in the presence of the testator). These can be put together by your lawyer to provide for specific provisions. Not only for the allocation of your tangible property but also intangible items such as investments. Creating a Will is not meant to be a stressful process but more a stepping stone towards a sounder peace of mind. Contact a professional at Blood Law today for their help to create the perfect Will for you.
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