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NORTH CAROLINA LEGAL INFORMATION
Last Will and Testament Statutes
Link to the North Carolina Statutes online which contain the portion of the Probate Code dealing with last wills.
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected North Carolina Statutes
- § 31-1. Who may make will. Any person of sound mind, and 18 years of age or over,
may make a will.
- § 31-3.1. Will invalid unless statutory requirements complied with. No will is valid unless it complies with the requirements prescribed therefor by this Article.
- § 31-3.2. Kinds of wills.
(a)Personal property may be bequeathed and real property may be devised by
- An attested written will which complies with the requirements of G.S. 31-3.3, or
- A holographic will which complies with the requirements of G.S. 31-3.4.
(b) Personal property may also be bequeathed by a nuncupative will which complies with the requirements of G.S. 31-3.5.
- § 31-3.3. Attested written will.
(a) 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.
(b) The testator must, with intent to sign the will, do so by
signing the will himself or by having someone else in the
testator's presence and at his direction sign the testator's
name thereon.
(c) The testator must signify to the attesting witnesses that
the instrument is his instrument by signing it in their presence
or by acknowledging to them his signature previously affixed
thereto, either of which may be done before the attesting
witnesses separately.
(d) The attesting witnesses must sign the will in the
presence of the testator but need not sign in the presence of
each other.
- § 31-3.4. Holographic will.
(a) A holographic will is a will
- Written entirely in the handwriting of the testator
but when all the words appearing on a paper in the
handwriting of the testator are sufficient to
constitute a valid holographic will, the fact that
other words or printed matter appear thereon not in
the handwriting of the testator, and not affecting
the meaning of the words in such handwriting, shall
not affect the validity of the will, and
- Subscribed by the testator, or with his name
written in or on the will in his own handwriting,
and
- Found after the testator's death among his valuable
papers or effects, or in a safe-deposit box or
other safe place where it was deposited by him or
under his authority, or in the possession or
custody of some person with whom, or some firm or
corporation with which, it was deposited by him or
under his authority for safekeeping.
(b) No attesting witness to a holographic will is required.
- § 31-3.5. Nuncupative will. A nuncupative will is a will
(1) Made orally by a person who is in his last sickness
or in imminent peril of death and who does not
survive such sickness or imminent peril, and
(2) Declared to be his will before two competent
witnesses simultaneously present at the making
thereof and specially requested by him to bear
witness thereto.
- § 31-3.6. Seal not required. A seal is not necessary to the validity of a will.
- § 31-5.1. Revocation of written will. A written will, or any part thereof, may be revoked only
(1) By a subsequent written will or codicil or other
revocatory writing executed in the manner provided
herein for the execution of written wills, or
(2) By being burnt, torn, canceled, obliterated, or
destroyed, with the intent and for the purpose of
revoking it, by the testator himself or by another
person in his presence and by his direction.
- § 31-5.3. Will not revoked by marriage; dissent from will made prior to marriage. A will is not revoked by a subsequent marriage of the maker; and the surviving spouse may petition for an elective share when there is a will made prior to the marriage in the same manner, upon the same conditions, and to the same extent, as a surviving spouse may petition for an elective share when there is a will made subsequent to marriage.
- § 31-5.4. Revocation by divorce or annulment; revival. Dissolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator
but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator's former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of appointment on the former spouse or purported former spouse and any appointment of the former spouse or purported former spouse as executor, trustee, conservator, or guardian. If provisions are revoked solely by this section, they are revived by the testator's remarriage to the former spouse or purported former spouse.
- § 31-5.5. After-born or after-adopted child; illegitimate child; effect on will.
(a) A will shall not be revoked by the subsequent birth of
a child to the testator, or by the subsequent adoption of a
child by the testator, or by the subsequent entitlement of an
after-born illegitimate child to take as an heir of the testator
pursuant to the provisions of G.S. 29-19(b), but any after-born,
after-adopted or entitled after-born illegitimate child shall
have the right to share in the testator's estate to the same
extent he would have shared if the testator had died intestate
unless:
- The testator made some provision in the will for
the child, whether adequate or not;
- It is apparent from the will itself that the
testator intentionally did not make specific
provision therein for the child;
- The testator had children living when the will was
executed, and none of the testator's children
actually take under the will;
- The surviving spouse receives all of the estate
under the will; or
- The testator made provision for the child that
takes effect upon the death of the testator,
whether adequate or not.
(b) The provisions of G.S. 28A-22-2 shall be construed as
being applicable to after-adopted children and to after-born
children, whether legitimate or entitled illegitimate.
(c) The terms "after-born," "after-adopted" and "entitled
after-born" as used in this section refer to children born,
adopted or entitled subsequent to the execution of the will.
- § 31-8.1. Who may witness. Any person competent to be a witness generally in this
State may act as a witness to a will.
- § 31-9. 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.
- § 31-10. Beneficiary competent witness; when interest rendered void.
(a) A witness to an attested written or a nuncupative
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.
(b) A beneficiary under a holographic will may testify to
such competent, relevant and material facts as tend to establish
such holographic will as a valid will without rendering void the
benefits to be received by him thereunder.
- § 31-11. Depositories in offices of clerks of superior court where living persons may file wills. The clerk of the superior court in each county of North
Carolina shall be required to keep a receptacle or depository in
which any person who desires to do so may file his or her will
for safekeeping; and the clerk shall, upon written request of
the testator, or the duly authorized agent or attorney for the
testator, permit said will or testament to be withdrawn from
said depository or receptacle at any time prior to the death of
the testator: Provided, that the contents of said will shall not
be made public or open to the inspection of anyone other than
the testator or his duly authorized agent until such time as the
said will shall be offered for probate.
- § 31-11.6. How attested wills may be made self-proved.
(a) Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:
"I, ______________, the testator, sign my name to this instrument this ________ day of ____________, ________, and being first duly sworn, do hereby declare to the undersigned
authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act
for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
_____________________________
Testator
We ______________, ______________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and
executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator,
hereby signs this will as witness to the testator's signing, and to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue
influence.
_____________________________
Witness
_____________________________
Witness
THE STATE OF ____________.
COUNTY OF ____________.
Subscribed, sworn to and acknowledged before me by ______________, the testator and subscribed and sworn to before me by ______________ and ______________, witnesses, this ________ day of ______________. (SEAL)
(SIGNED)
(OFFICIAL CAPACITY OF OFFICER)"
Library of Informational Legal Articles
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