The Attested Last Will and Testament

September 16, 2019 | Sam Morris

The Creation and Execution of Attested Wills

In North Carolina, many people pass their property through an attested written will.  This estate planning process provides a generally straightforward process for conveying a person’s property after they die.  This blog post examines, at a basic level, the general requirements for creating an attested will under North Carolina law.

A will is a legal instrument of conveyance that takes effect upon the death of the testator, the person making the will.  Until that time, a will may be changed, assuming of course that the testator has testamentary capacity.  Until the will takes effect, the beneficiaries acquire no rights in the testator’s estate.

For a will to be valid, ordinarily it must be (1) in writing, (2) signed by the testator, and (3) attested by at least two competent witnesses.  N.C. Gen. Stat. § 31-3.3.

The first requirement is straightforward—the testator’s will must be reduced to writing and memorialized in a written document.  

Next, the testator must actually sign the will with the intent to execute the will as his last will and testament.  Where the testator is unable to sign the will, he may direct another to sign his name on his behalf.  Any mark affixed by the testator which he intends to operate as his signature satisfies the statutory signature requirement.  N.C. Gen. Stat. § 31-3.3(b).

The testator must signify to the attesting witnesses that the document is the testator’s instrument by either (1) signing it in their presence or (2) by acknowledging to them his previously affixed signature, either of which may be done before the attesting witnesses separately.

Likewise, the two attesting witnesses must sign the will in the presence of the testator.  Notably, however, the witnesses need not sign in the presence of each other.  

Though the requirements of an attested written will seems relatively straightforward, several estate planning pitfalls can arise in both drafting and executing a written will.  You should always consult with an experienced estate planning attorney to ensure that your estate planning wishes are fulfilled.  The attorneys at Harvell and Collins would be most happy to assist you in this very important area.  

Samuel K. Morris
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