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Without A Will

            Under North Carolina law, if you die without a will, your property will be distributed according to the North Carolina Intestate Succession Act (the “ISA”). The ISA basically provides that if you are single and  have any children, they will inherit everything.  (Caution: Do not consider your partner’s children as your own children for this purpose.  Unless you are the biological or adoptive parent of the child, he/she will not inherit from you under current North Carolina law.) If you have no children, but one or both of your parents are still living, they will inherit everything.  If you have no children and both your parents are no longer living, then your brothers and sisters will inherit everything.  Your partner gets nothing and registering as domestic partners or having a commitment ceremony doesn’t change anything.

             After Jackie and I talked about changing the deed for her house, we spent some time looking at her other assets: her truck, the antiques she and Sue had collected and her retirement benefits.  We also talked about her family: Sue’s kids, Jackie’s favorite niece, LeAnn, and her parents.  I asked her who might need financial help in the future and  who was likely to be upset if she left most of her estate to Sue.  Slowly she began to realize that having a will could do a lot of things for her and it could be a big help for Sue in a difficult time.

  What A Will Does

            Under North Carolina law, a valid will ensures that the property you own at the time of your death goes to the beneficiaries you choose.  It also serves to define what property belongs to your estate.  This can be very important if you live with a partner.  All the furniture, tools, toys, and other personal belongings that you collect in your home have no title, and disgruntled relatives can make the argument that any or all of those things should be distributed as part of your estate when you die. A valid will also allows you to designate your executor, the person who will be in charge of handling your estate upon your death and allows you to waive bond requirements which otherwise reduce the assets available for your beneficiaries.  A will can also provide instructions for your funeral arrangements and disposition of your body.  To some this may seem an unimportant detail, but even if you don’t care much about what happens to your remains after your death, stating your wishes, or the wishes of your partner, in your will can prevent family members from disagreeing at a time when feelings are easily hurt and tempers are likely to run high.

              Jackie had questions about Sue’s kids too.

            “If she dies first, how do we make sure they get to keep living with me? And what do we do with the stuff she leaves  them or leaves me to take care of them. ”

            “Well there is no guarantee that if she dies first the kids will continue to live with you.”

            This time her face just went white.

            “But,” I said “there are some things you can do to protect the kids.”

  Protecting the Children

            Parents can designate anyone as guardian of their minor children in their wills and if the children have no other biological or adoptive parent who could assert custodial rights as guardian and the clerk has no reason to believe the designated person is unfit, the designation is likely to be honored and physical custody of the children awarded to the named guardian.  However, if there is a surviving biological or adoptive parent, and he or she seeks physical custody of the children, his or her request is likely to be granted.

            Totally separate from the question of physical custody, however, is the issue of support.  If a parent is concerned that the guardian named is his or her will might not be given physical custody of his or her children, then, that parent can chose to establish a trust (either by a separate trust document or as part of the will) naming a separate trustee to hold and manage property and money for the children’s benefit and the trustee does not have to be the guardian.  So in Jackie’s case, if Sue’s ex-husband ever showed back up, he might be able to get physical custody of Sue’s kids, but Sue could ensure that Jackie  had control of the money she left her children.  Sue could even set up the trust so that Jackie had control of the assets after the children turned eighteen, until they had the maturity to manage money better. 

            Jackie’s estate was too small for estate taxes to be a significant issue since it was valued  under the million dollar exemption amount for 2002.  So after we finished talking about a possible trust for Sue’s kids, I reached for my briefcase and started to say goodbye, but Jackie was looking at me again with determined eyes.

            “So if I  do this will,  how do I know one of my crazy relatives won’t come out of the woodwork and challenge it?”

            “You don’t.”

            “What?”

            “We can’t stop one of your crazy relatives from coming forward to challenge it.  What we can  do is make it difficult for them to get a court to invalidate your will by making sure it is drafted well and has been executed with all the appropriate formalities.”

   Different Kinds of Wills

            Under North Carolina law typed wills need to be signed by the testator (the person making the will) and attested by at least two disinterested witnesses in front of a notary public. These formalities allow independent witnesses to observe that the testator is really “of sound mind” and is not under any duress or undue influence.  These formalities can be very important for members of the LGBT community, where our families are sometimes inclined to believe that we couldn’t really have intended to leave everything to our partners.  A declaration in your will about why you desire and intend to leave your estate to your partner or friends rather than your family can also be useful.

             If an emergency arises and you don’t have time to do a formal attested will, then a will written entirely in your own handwriting, signed by you and found with your valuable papers may be approved (probated) by the court and used to distribute your property.  No witnesses are required.  Due to its lack of formalities, this type of will, called a holographic will, may be more easily challenged by disgruntled relatives.  Moreover, since holographic wills are not drafted by professionals, they often contain ambiguous language or fail to include important provisions (like the appointment of an executor). When that happens the desires of the person making the will may  be lost and property distributed in a way that he or she did not intend.

            Jackie left with a list of questions for her partner Sue and a new determination to give her family every protection the law would allow.  As I watched her go, I thought of the families left unprotected by the tragedy of September 11^th and walked back to my office with a new determination of my own.

Note: As you read Legal Briefs, please remember that our purpose is to provide general information about legal topics, not to give legal advice.  The needs of any individual in any particular set of circumstances can not be fully addressed in this forum.  Also remember that while the information we provide is accurate at publication, laws constantly change. Always seek competent professional advice when making legal and financial decisions.

Note: All characters and events in this article are fictitious and any resemblance they bear to real people, place or events is coincidental.