At some point in our distant past, to prevent what the famous property scholar Sir William Blackstone called “endless disturbances,”1 judges and governments concluded that ownership of property carried the right to decide who was to receive the property upon the owner’s death. The device that evolved as a property owner’s expression of this right is the will, often called a “last will and testament,” where a person gets their best and ultimately last chance to dictate matters of property ownership after their demise. Planning for property disposition at death can be daunting, with questions about future needs of descendants, who “deserves” what, and capability to manage wealth, all amounting to the pressure of making the “right” decisions and committing them to paper in proper form.
Basic Terms and Concepts
A will is a legal document that expresses—to the best of one’s ability in written language—how they want their property distributed after their death. The language a person chooses in their will is the final expression of their intent, which is considered paramount in any dispute over distribution of a decedent’s property. The will may pass property to specific individuals (“my son Joseph”) or to individuals ascertainable at death (“to my children”) according to instruction.
The will may pass real property separate from personal property, or leave it commingled for sorting out by those who inherit. (For this paper, one who inherits under a will is called a “legatee”—from the Latin legatus, translated “delegated person,”2—and one who inherits without a will—called intestate succession—is an “heir.”)3 Dispositions of personal property in a will are known as bequests (“I bequeath my Renoir painting”); dispositions of real property (i.e. land and things affixed to it) are called devises (and the recipient, a devisee) (“I devise my interest in the land”).
One who dies having executed a legally valid will is known as a testator (male) or testatrix (female), whereas one who dies without a valid will is known as having died intestate (gender neutral). If the latter, the person’s assets are distributed according to the state intestate succession law, which defines distribution among individuals by class according to their relationship to the decedent. If a person’s written will fails under a successful challenge in a court action (called a “caveat”), the decedent’s assets will be distributed according to intestate succession law. That said, it falls on the person drafting their will to express to their attorney language as clear and plain as possible to ensure that their intent is fulfilled.
The will also identifies the person whom the decedent wishes to “execute” their instructions to distribute property—known as an executor (male) or executrix (female), or personal representative (gender neutral)—to their legatees. This office—which is a fiduciary position of public trust—is monitored (in North Carolina) by the County Clerk of Court. For people with minor children, the will is the opportunity to suggest a chosen personal and financial guardian for the minor children, as well as establish a vehicle—called a testamentary trust—for how their assets will be managed until adulthood.
A person may make as many wills as they care to during their lifetime, so long as the person remains competent. Generally, the last will executed among several over time is the will which legally expresses the testator’s last wishes, even if an earlier executed will—with different property dispositions—is produced. (Wills are often updated by amendment, known as a codicil, or rewritten and executed entirely; any will superseded by another should be destroyed to avoid confusion.) Until the death of the testator, a will is simply a piece of paper with no legal significance, and serves as no binding directive by the testator of an eventual disposition of property. The “will speaks at death” is a common phrase to describe this situation, where a living person—though having committed their intended bequests and devises to written words—has not yet expressed their final voice as to what they want to happen to their property when they die. At their death the will in that moment becomes the only expression of that intent, and becomes the last word when the testator can no longer speak. In line with this concept, no living person has heirs, legatees or devisees even though such people are identified in an executed will; such status forms only upon the death of the testator, and until then everyone is a potential legatee.
Another concept to note is that the passage of ownership or the right to receive ownership occurs in an instant upon death of the testator or intestate. For real property (land and fixtures), the passage of title at death is instantaneous, and requires no public approval save acceptance of the will as valid by the county Clerk of Court. For personal property, lawful possession occurs upon settlement of the decedent’s estate as approved by the Clerk of Court.4 Such transfer of title or right to possession is not an earned concept: one legatee or heir does not have a superior claim to other rightful inheritors because of their relationship to the property (e.g. they are its possessor or caretaker). Care for a decedent in their last years, payment of upkeep and management of property, verbal promises, create no preference in who becomes the rightful owner of property in which others have a shared legal interest by inheritance.
Though there are various methods of transferring property at death—use of a trust, jointly titled property, pay-on-death designations—the will remains the centerpiece of an estate plan. Given the difficulty of disposing of all property—real and personal and wherever situated—prior to death, the will at least sets about a controlled process for legal authority to dispose of all that one owned, even the junk. As discussed below, for the survivors, even an imperfect will can be preferable to no will at all.
Lastly, because a will is a static document, an expression of intent captured at its execution under the feelings and emotions and relationships as they exist at that time, wills should be continually revisited. A common period expressed is “every five years,” but really upon occurrence of a major life event: the birth of children, the death of children, death of a spouse, acquisition of new property (say by inheritance), the change of plans by a farm or other family business successor, or the supposed increase in value of certain property. While such events may be captured as disposition contingencies, the language in the static will is not likely to capture any changes that would undoubtedly modify the intent of the would-be testator. For example, a will drafted shortly after marriage and when children are young hardly captures the state of affairs as the children are exiting college and starting their own families. Likewise, the planned disposition of certain real property or farm assets to the expected farming successor may change if that person dedicates to a new career. The execution of a will is an accomplishment coupled with an expectation that it will be modified or another drafted and executed as part of a lifetime of wealth acquisition and planning for its eventual disposal.
Dying Without a Will
As noted above, for those who do not execute a will to provide direction of their assets, the state of North Carolina has provided a substitute in the Intestate Succession Act.5 Intestate succession is largely based on lineal descent, and has the effect of preserving the shares of predeceased lineal descendants in favor of those individuals’ living lineal descendants. The primary share preservation is to a surviving spouse, and the amount of that share depends on whether there are children to the marriage. (For detailed explanation, see Property Rights of Surviving Spouse in this series). The distribution schemes are numerous based on the surviving legal heirs as determined by the statute. For a decedent with no legal heirs under the intestate statute, the assets escheat to the State of North Carolina’s Escheat Fund for the benefit of the University of North Carolina per the North Carolina Constitution.6
Types of Wills
North Carolina statute states simply that “[a]ny person of sound mind, and 18 years of age or over, may make a will.”7 There are three types of wills in North Carolina: 1) an attested will, 2) a holographic will, and 3) a nuncupative will. A holographic will is a will written and attested (signed) entirely in the person’s own handwriting.8 A nuncupative will is expressed orally by an individual on their deathbed (in their “last sickness or in imminent peril of death, and who does not survive such sickness or imminent peril”) in the presence of two competent witnesses together called for the specific purpose of witnessing the dying person’s verbal testament. A nuncupative will may only dispose of personal property (anything but land).9 An attested will is that document normally thought of as a will created by a lawyer at the client’s direction, and typewritten. Attested wills are the focus of this paper.
An attested will relies on the presence of two adults, who must bear witness to the would-be testator’s signature to the will. At an earlier time in history, such witnesses were called to testify before the officer (magistrate or clerk) responsible for overseeing the probate proceedings. In modern times—to overcome the problem of witnesses who may not survive a testator or otherwise cannot be located—North Carolina recognizes what is known as a self-proving will, whereby the two witnesses and the testator all sign the will in the presence of a notary public, who makes their own attestation (recognized by the state as a trustworthy affidavit) that the testator and the witnesses were indeed there to sign in the others’ presence, and the signatures are indeed theirs. Witnesses to an attested will (as well as a nuncupative will) must be disinterested, meaning that they or their spouse have no inheritance from the will. (An interested person—inheriting under the will—is not disqualified as a witness, but there must also be two disinterested witnesses; if there is only an interested and a disinterested witness, the interested witness—if the will is probated—loses all inheritance under the document).10
The form of attestation may be found in the NC general statutes,11 and should be taken as granted when having a professional (lawyer) draft and arrange for execution of the will. In most cases, an attested will drafted by a lawyer will be executed in proper form in proceedings under their direction, ensuring compliance with statutory requirements. A best practice in witnessing a will is that no witness bears any blood relation to the testator. Law office staff are common witnesses to attested, self-proving wills.
Drafting Dispositions of Property
As noted, the safest approach to drafting and executing an enforceable will is to hire a lawyer to prepare the document and oversee its execution. The lawyer will draft the document from your oral or handwritten direction, describing items or classes of property and individual recipients or classes of recipients. A lawyer’s training in drafting the will includes knowledge of how certain words and phrases are interpreted by courts in the event of a legal challenge to their meaning following the testator’s death.
An important concept to note is that executors—in the absence of specific direction by the will—are without authority to decide which items of property are delivered to the possession of which legatee. When the two classes of property—real and personal—are distributed, and no effort is made to itemize such dispositions in the drafting of the will, all legatees share an interest in all of the property. For example, if a testator owns three parcels of land, a herd of cattle and two tractors, and simply disposes this real and personal property to his (three) children, each child then owns 1/3 undivided (fractional) interest in each of the three parcels of land, the herd, and each tractor; no judge or personal representative can make a decision as to which parcel goes to the sole title of which legatee (here, devisee), nor allocate the cows and tractors in whole among the legatees. The legatees have to agree among themselves. Such situations are how co-tenancies are created in land, which require extra expense (e.g. attorney fees, surveys, appraisals, mediations) and sometimes a damaging and protracted dispute to sort out. Sometimes, such co-tenancies are unresolved for multiple generations moving forward, resulting in what is generally called “heirs property.”
Indeed, the craft of drafting a will (or directing its drafting) is to contemplate the knowable contingencies and resolve them with words and phrases that have legal meaning. Above all, the language should always be clear on intent, and often plain language is preferred to help a court discern a testator’s intent.
Addressing the Share of a Potential Legatee Who Dies Before
A key consideration in drafting is the disposition of property in the event of a predeceased potential legatee. The legal term for this situation is called “lapse,” whereby the share that would have gone to the predeceased individual either is divided among surviving class members, or if the individual was named not as part of a class, to the residuary estate (see below). Whether a devise or bequest lapses is taken from the language used by the testator to show his intent.12
To avoid a lapse within lineal descents, North Carolina like many other states has an anti-lapse statute.13 The effect of the anti-lapse statute is to “preserve” the share (much like a “per stirpes” intent discussed below) of a predeceased potential legatee in favor of their lineal descendants if such descendants are of the testator’s grandparent. This includes grandchildren, nieces and nephews, etc. of the testator if the original devise (or bequest) was to their parent. For example, if a devise of land is to “my siblings” and one of the siblings dies before the testator, their children (the testator’s nieces or nephews) would inherit their parent’s share because they are lineal descendants of the testator’s grandparent. In short, a devise or bequest to a deceased individual does not lapse when the deceased devisee leaves a surviving issue who would have been testator’s heirs by intestate succession.
Not only should the drafting contemplate the distribution of that predeceased potential legatee’s share, but should also avoid language demonstrating the contingency whether such share will be disposed to minor children. The legal terms of art to determine a predeceased potential legatee’s share are “per capita” and “per stirpes.” Consider the situation where a person drafting a will has three children, each of whom have two children; after the will is executed, one of the drafter’s children dies:
I devise and bequeath all of my property to my children, per stirpes.
The effect of the use of the term per stirpes (Latin for “by the stem”) is to preserve the deceased child’s share in favor of their lineal descendants, their family. Upon the testator’s death in this example, the estate will be divided 1/3 to each surviving child, and 1/6 to each of the children (testator’s grandchildren) of the deceased child. The children of the testator’s surviving children receive nothing. Now change the language slightly:
I devise and bequeath all of my property to my children equally (or ‘in equal shares’ or ‘share and share alike’).
The effect here—under North Carolina case law14—may be to ignore the “stem” (the family, the lineal descendants) of the predeceased potential legatee, and divide that person’s share among the testator’s surviving children, each of whom now receive ½ of the estate property. The children of the deceased potential legatee may receive nothing from the testator’s estate. This has the same effect of using the words per capita (“by the head”), which shows a deliberate intent to cut off the predeceased child’s stem (and its lineal descendants). However, a court will look elsewhere in a will to find language of an intent that each stem or family (of a child) receives a share.15 The challenge, therefore, is to avoid any language that would indicate a contrary intent.
Avoiding Co-Tenancy in Real Property
Another consideration in drafting should be where possible to eliminate co-tenancies in real property, as well as shared ownership in non-fungible personal property. Co-Tenancy is an estate at law whereby an individual owns an undivided share of property with one or more other owners, or co-tenants. No co-tenant has a claim of sole possession or dominion over the property, and no one co-tenant can dictate the use or disuse of the property by the other owners, regardless of whether they possess, occupy, use, or pay taxes on the property. The effect is that no binding use, occupation or transfer of interest may occur without all co-tenants in agreement. Co-tenancy, while often amicable, can lead to family dispute and under-utilization (and even loss) of property. (For more on co-tenancy, see Understanding Title in Property.)
Though not always possible, the drafting person should endeavor to divide their real property such that each legatee has their own parcel of land, and not be forced to “work it out” later. The same applies for shared ownership of business or other special personal property. This is particularly critical in transferring farmland and farm personal property such as equipment and livestock, where only one potential legatee may be farming the land, and will be forced to share the property with a sibling who will have a hand in all decisions related to the property. In many cases, one simply buys out the other(s), though this can be contentious depending on sibling relationships and each sibling’s view on the value of their real property inheritance. Often one legatee is not in the financial position to buy out the others. Again, no preference is given to one legatee simply because they are making productive use of the real property.
A number of considerations come into play in dividing real property, including parcels’ market value, whether it is open and supporting a legatee’s farming interests, whether it has timber, or whether it has emotional family legacy value. Parcels will have differing use values to different legatees. For example, the legatee engaged in farming will have more direct use of open farmland than a wooded tract, whereas the legatee not engaged in farming can take financial benefit from the timber on the wooded tract. While professional appraisals of land are most accurate, one may reasonably rely on county tax appraisals as a guide in balancing out the market value of land when balancing disposition of different tracts among devisees. (County tax appraisals—though octennial—are nonetheless professional appraisals.) For multiple wooded tracts—each with growth in different stages —a consulting forester can provide timber values for various tracts to assist with an equal disposition. Indeed, a disposition of a forested tract may be made to one devisee, reserving the timber right to another (whereby the second devisee has the right to cut and receive the proceeds of the timber).
When drafting real property dispositions—to eliminate a dispute of a real property disposition—provide multiple identifiers of the parcel, including a county tax ID, and perhaps a deed book and page where the property is described in the chain of title (from a previous deed, or even a Deed of Trust). In other words, drafters should avoid informal or customary descriptions, as in “my farm”, “the old home place,” or “the Old Heron Farm” to eliminate uncertainty.
Apart from specifically identifying real property to legatees, strings may be attached to the devise in the form of instructions left to the Executor, which will be considered a modification of the rights transferred in the inherited property. For example, a will drafter may wish for a portion of a tract of land be subdivided for the benefit of a legatee. For example, where the will drafter wishes that a homesite from a larger tract go to one devisee, with the remaining acreage to another devisee, the drafter might write the following:
Item 1: I devise that parcel of land identified as [name] County PIN _________, and described in Deed Book ___ Page ___ of the [name] County Registry, comprised of ___ acres, more or less, to [name of devisee 1], less the acreage subject to the devise in item 2. I direct the Executor - following the subdivision in Item 2 - to prepare, execute and record a deed of the remaining parcel above-described to [name of devisee 1].
Item 2: I devise ___ acres from the undivided ___ acre parcel described in Item 1 to [name of devisee 2]. I direct my Executor, in his discretion, to survey the ___ acre subdivision and secure approval from the county, ensuring adequate water and septic (or sewer) for a 2000 square foot residence, with direct ingress and egress to [name of public road, i.e. S.R. #]. I direct Executor to prepare, execute and record an Executor’s deed for this parcel to [name of devisee 2].
Note that devisee 1 has received title to the larger tract acreage subject to a certain number of acres being removed and devised to devisee 2. If the language appears indelicate, it is nonetheless an unambiguous expression of intent, which again is what matters in will drafting. Or, an instruction is given with the real property devise that the executor subdivide the property with the help of an appraiser, but in the end employs their discretion and subdivide the property to achieve an equal property value disposition.
Of course, it is more clear to make such property divisions prior to death, taking into account value and prediction on the needs of recipients. This requires an outlay of resources for surveying and recording, which some folks naturally avoid. But making subdivisions ahead of death certainly allows for clear and clean disposition.
Dispositions of Personal Property
Expression of intent in disposing of personal property can be pretty straightforward, though again care should be exercised in describing the item or class of property. For example, describing the disposition of farm equipment and like items is the disposition of numerous individual items of non-fungible personal property of varying values, and will require “sorting out” by the legatees. This may pose a challenge for any legatee using the equipment for farming.
Personal property may be described as tangible or intangible. Tangible property describes physical items, such as vehicles, vases, paintings, furniture, rock album collections, musical instruments, guns, farm equipment, livestock. Generally, things one can physically possess, are non-fungible and illiquid. Such property may have high market or emotional value. Their conversion to cash or its equivalent requires a transaction. Intangible assets include bank accounts, stocks, copyrights, business interests, things that are not possessed but ownership is otherwise indicated by some document or can be committed to paper or digital form. In general, intangible assets have a value-certain and are more easily liquidated (converted to cash), or disposed of by third party transactions of an intermediary (such as a bank or a stock broker). Regardless, both types of property should be clearly identified to their recipient(s), lest they become a general disposition of the residuary estate (see below).
As noted above, the executed will has no legal significance prior to the testator’s death. The would-be testator can certainly - and often does - dispose of property during their life through gift or sale. When personal property is itemized in a will but is no longer owned by the testator at their death, this is known as ademption. If the item is no longer owned by the decedent, it is simply not a part of their estate, and the identification of the property in the will to a specific legatee has no effect. That said, it is important to properly document lifetime—called inter vivos—gifts of personal property— particularly valuable heirlooms—to any recipient to avoid confusion when the will takes effect. Legally, a gift does not complete a transfer of ownership to property unless the recipient signifies their acceptance of the gift. For inter vivos transfers of property of value—guns, paintings, business interests—some form of “gift acceptance” written documentation should always be used, particularly in the event that the personal property gift is part of a planned bequest in an executed will.
Often, the person directing their will has not decided upon—or simply forgets to identify—to whom certain items of personal property will be transferred upon death. While some states specifically incorporate such memoranda as part of a will, North Carolina does not; such memoranda must be executed as a will codicil, with the same formality of a new will. However, one solution for personal property not identified to a recipient in the will is to bequeath the tangible property to the executor with instructions and authority to distribute property according to a memorandum, or as part of a “letter of last instruction.” An example of language referring to such a document may appear as follows:
Item #: Personal Property Memorandum. I bequeath my remaining tangible personal property to my Executor to distribute according to a personal property memorandum or like document found with my will, and any property not so disposed in such a document will become part of my residuary estate.
Such memoranda are common attachments to revocable trusts, and act as a continual and valid amendment to the trust.
Disposition of Residuary Estate
The residuary estate is all property that has not been already identified in the dispositions of real and personal property. This is a standard clause that serves as a catch-all. Nonetheless, as noted above, the will drafter should consider how this property will be divided and to whom. As noted above, in a well-drafted will, real property and personal property dispositions are separated, and as particular as possible. A simple disposition of residuary estate may appear as: I devise and bequeath my residuary estate to my children, per stirpes. Recall that this language has the effect of preserving the share of a predeceased child.
Choice of Personal Representative and Guardian for Minor Children
Wills are not self-executing, and require some labor to comply with the public probate process for settling the financial matters of the testator and distributing their property to legatees according to the will. The testator has the authority to name such a person, and unless disqualified (see below), the Clerk of Court must issue “letters testamentary” to the named executor.
An executor named in the will should be someone who the testator knows will qualify. The Clerk of Court cannot accept the named executor that does not qualify, and the form application for administration is meant to alert the Clerk of any disqualification. Such disqualifications—listed in G.S. 28A-4-2 —include non-residency (unless such individual has appointed an in-state registered agent), adjudged incompetence, illiteracy, and convicted felon. As a catch all, the Clerk may refuse to appoint one they determine to be “otherwise unsuitable.”16 Note that any “interested person” may challenge the appointment of an administrator on these grounds.17
It is a good practice to ask a chosen executor if they are willing to serve. Of course, their office of service may not arise for many years to come, and they may predecease the testator, move away or become estranged. Therefore, a successor executor should also be named in the will, for example:
Executor. I nominate John Yossarian of Anson County, North Carolina to serve as Executor. If John Yossarian is unable or unwilling to serve as Executor, I nominate Francis Yohannan of Scotland County to serve as Executor. One or more executors holding that office are referred to as “Executor” in this will.
Testators are often tempted to nominate more than one Executor to serve simultaneously, sometimes out of concerns that other family members (i.e. children) will feel slighted or otherwise be distrustful of the chosen nominee. Such temptation should be avoided: the office of executor does not carry with it any discretionary power over “who gets what” in a will (unless the testator specifically grants this power to the executor). The office of executor is one that carries many responsibilities, all of which are overseen by the Clerk of Court, so there is not much opportunity for chicanery.
The Probate Estate
As noted, wills are not self-executing, and therefore legatees are not free to claim ownership or possession of personal property in a decedent’s estate simply because an item was identified to them in a will. (Though as a practical matter lineal descendants often simply take possession of items they want, the property is not legally theirs, and theoretically may be reclaimed through proper process.) The execution of a will is a public event, in that the will and all required filings and distribution are overseen by the Clerk of Court for the county in which the decedent resided, and are a matter of public record (in an indexed file in the Estates Division of the Clerk’s office).
Duties of the Executor include offering the will in probate court, investigating (including required publication) and paying debts of the decedent, collecting property and keeping an inventory, and filing tax returns (including the decedent’s final income tax return). The Executor must also defend any lawsuits against the estate, including challenges to the validity of the will. The Executor is well guided in this process by an 18-page publication of the North Carolina Administrative Office of the Courts titled Estate Procedures for Executors, Administrators, Collectors By Affidavit, and Summary Administration.18 Ultimately, the Executor must affirm to the Clerk of Court their distribution of the decedent’s assets per the will.
Revoking or Changing a Will
A will in whole may be revoked by a subsequent will, or parts thereof modified by a codicil (amendment) executed in the same manner as a will. A will may also be “burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it” by the testator or someone at their direction.19
As a practical matter, one should always destroy previous original wills upon execution of a new will to reduce risk of its discovery and use in a challenge to the will presented for probate. In addition, the preamble to a new will should always state that the current will revokes any prior wills and codicils, as such:
I, William Barrett Travis, a resident of Cleveland County, North Carolina, revoke any prior wills and codicils made by me and declare this to be my last Will and Testament.
This has the effect of expressing a “final” intent that any documents executed or drawn up as holographic wills in the past are void, including any dispositions of property contained in those wills.
Though tempting, it is recommended that one not store their original will with the attorney who drafted and oversaw the execution of the will. Clients outlive their lawyers or often their law practices, possession of personal documents of a client places risk-of-loss on the lawyer, so many lawyers prefer not to do it. Following execution of a will, be prepared to take possession and ensure its safekeeping. Law practices will often provide an indexed folder so that its contents (a will, powers of attorney, a trust, etc.) will be conspicuous and not lost among other loose papers. Clients should request a digital copy of the scanned original documents for reference.
As a safer alternative, county clerks of court in North Carolina for some years have offered a will safekeeping service—now required by statute20 — whereby the Clerk of Court (Estates Division) takes possession of the original, offering a receipt in return. This document is not available to the public, or subject to any public records request law. (Though a receipt may be lost, the will is nonetheless in the safekeeping of the county office and can be retrieved upon proper identification.) Note that the testator or their verified agent may withdraw the will prior to their death.21
This article is printed in the handbook So You Inherited a Farm, available at http://farmlaw.ces.ncsu.edu/, and was supported with funding from the NC Tobacco Trust Fund Commission.
This topic of wills has been previously addressed for N.C. Cooperative Extension by Mark Megalos, PhD., Theodore Feitshans, JD and Sreedevi Gummuluri as Where There Is a Will, There is a Way, N.C. Cooperative Extension Fact Sheet # AG 688-02.
Publication date: March 30, 2022
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