Mutual Wills Package for Married Couple with Minor Children
Note: This summary is not intended to be an
all-inclusive discussion of the law of wills in North Carolina, but does
contain basic and other provisions. A discussion of handwritten
wills is not included.
Who may make will: Any person of
sound mind, and 18 years of age or over, may make a will. 31-1.
Will invalid unless statutory requirements complied with:
No will is valid unless it complies with the requirements prescribed
by North Carolina Law. 31-3.1.
Attested written will: An attested written
will is a written will signed by the testator and attested by at least
two competent witnesses as provided by this section. The testator
must, with intent to sign the will, do so by signing the will himself.
The testator must signify to the attesting witnesses that the instrument
is his instrument by signing it in their presence which may be done before
the attesting witnesses separately. The attesting witnesses must sign the
will in the presence of the testator but need not sign in the presence
of each other. 31-3.3.
Who may witness: Any person competent
to be a witness generally in this State may act as a witness to a will.
31-8.1.
Self-Proved: An attested will may be made
self-proved by affidavit of the testator and witnesses on an appropriate
form. The form you have found contains the North Carolina self proving
affidavit form. 31-11.6.
Executor competent witness: No person,
on account of being an executor of a will, shall be incompetent to be admitted
a witness to prove the execution of such will, or to prove the validity
or invalidity thereof. 31-9.
Beneficiary competent witness; when interest rendered void: (a)
A witness to an attested written will, to whom or to whose spouse a beneficial
interest in property, or a power of appointment with respect thereto, is
given by the will, is nevertheless a competent witness to the will and
is competent to prove the execution or validity thereof. However, if there
are not at least two other witnesses to the will who are disinterested,
the interested witness and his spouse and anyone claiming under him shall
take nothing under the will, and so far only as their interests are concerned
the will is void. 31-10.
Manner of probate of attested written will:
(a) An attested written will may be probated in the following manner:
(1) Upon the testimony of at least two of the attesting witnesses;
or
(2) If the testimony of only one attesting witness is available,
then
a. Upon the testimony of such witness, and
b. Upon proof of the handwriting of at least one of the attesting
witnesses who is dead or whose testimony is otherwise unavailable, and
c. Upon proof of the handwriting of the testator, unless he signed
by his mark, and
d. Upon proof of such other circumstances as will satisfy the clerk
of the superior court as to the genuineness and due execution of the will;
or
(3) If the testimony of none of the attesting witnesses is available,
then
a. Upon proof of the handwriting of at least two of the attesting
witnesses whose testimony is unavailable, and b. Upon compliance with paragraphs
c and d of subsection
(a)(2) of this section; or
(4) Upon a showing that the will has been made self-proved in accordance
with the provisions of law.
(b) Due execution of a will may be established, where the evidence
required by subsection (a) is unavoidably lacking or inadequate, by testimony
of other competent witnesses as to the requisite facts.
(c) The testimony of a witness is unavailable within the meaning
of this section when the witness is dead, out of the State, not to be found
within the State, insane or otherwise incompetent, physically unable to
testify or refuses to testify. 31-18.1.
