Importance of a Will

The North Carolina General Statutes allow any person of sound mind, who is eighteen years of age or older, to make a will. A will may be used to pass on any personal property or real property to another person following the death of the maker of the will. Every will is created, about the real and personal estate described within, to speak and take effect as if it had been acted upon immediately before the person making the will passed unless the person intended to act otherwise. The person making the will is known as the testator. For a written will to be considered attested, the will must be signed by the testator and must be witnessed by at least two competent witnesses. The testator must, with intent to sign the will, actually sign the will or have another person, in their presence or at their direction, sign their name. Persons that are intended to act as witnesses must either witness the testator signing the will or the testator must acknowledge to them any signature that they had previously written. The witnesses must then sign the will in the presence of the testator. A witness need not sign in the presence of another witness.

Once the testator dies, the clerk of the superior court of each county obtains jurisdiction over any administration, settlement, and distribution of estates outlined within the testator’s will. If a will is uncontested, the estate proceedings may be decided without a hearing according to the practices and procedures provided by the law. To commence these proceedings, a petition must state that the individuals doing the petitioning, the petitioners, are entitled to relief and the nature of the relief demanded. The clerk of the superior court will then hear and decide on the petition. However, if a will is contested, meaning the validity of the will is in question, there are disputes over the interpretation or creation of the will, or there are allegations of undue influence, fraud, or lack of capacity of the testator, then the estate proceedings can become a much more complicated and expensive process. In situations involving contested estates and wills, the interested party typically files a formal challenge or objection to the will. This begins the legal process and informs other interested parties of the proceedings. There are generally many legal steps involved in resolving a contested estate, such as discovery, which allows all parties to gather and exchange information and evidence that may be relevant to the case. Before the case proceeds to trial, and to encourage settlement negotiations, mediation is often required. However, if a settlement is unable to be reached, then the case will head to the superior court.

To avoid the much more involved and expensive process of handling a contested will and any other potential personal disputes, a person must make sure that they have a will. It is also important that a person have an attorney involved in the process of creating their will so that the attorney can ensure that it complies with the legal requirements of the individual’s home state. In fact, given the complicated procedures involved in the probate process, the specific procedural rules and deadlines associated with court proceedings, and the possibility of estate laws and procedures changing, it is important, regardless of whether a will is contested or uncontested, to consult a qualified attorney.

King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. If you are an executor or administrator in a probate process or would like to prepare a will or trust to make matters easier on your loved ones after your passing, contact King Law at 888-748-KING (5464) for a consultation. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.

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