Basics of last and living wills


Have you ever been a part of a discussion or overheard a conversation about wills and trusts? Maybe you know a little about both but you aren’t sure if they are the same or why either are important. There is an overwhelming amount of information available on both topics, so let’s begin with the basics of a will.

Wills are a topic that most people don’t like to discuss, but it is important that we do. We have embarked on a day and time when planning ahead is no longer an option, but a necessity.

A will can clearly express your wishes while you are alive and give you a clear voice after you have passed on. You have the power to prevent conflict within your family, instruct your doctor during a life threatening emergency, and plan how you will leave your legacy.

A will can be oral or in written form and permits you to leave personal property and real estate to one or more individuals and/or an organizations. It is better to have a will in written form, wills that have not been reduced to writing tend to sometimes be challenged through the court. There are different types of wills in North Carolina, but the most commonly used is the last will and testament and the living will. A last will and testament is used to arrange who will receive certain personal belongings, homes, buildings, and land but is only effective upon death. The details can be general, where all property and belongings will go to one person such as a spouse, or they may be specific, where each piece of jewelry is required to go to a certain person. There are several things that are allowed to be included in a will including money, stocks and bonds, business ownership, and even guardianship of minors.

Once a will has been created it is binding unless one of the following occurs: it does not meet the requirements of North Carolina Law, it is knowingly destroyed by the creator, or it is replaced with a new will. In situations where a valid will does not exist, North Carolina labels the property intestate. This means the owner died without leaving instructions on how the property should be disposed or distributed. When property is in intestate, state guidelines will be used to disburse the property to any heirs. The term “heirs” is used to define anyone who inherits the estate of a person who has died. Unfortunately, this can sometimes lead to requiring that certain property be sold and profits from the sale split among the heirs or when heirs to the property choose to sell their interest in the land without the permission of the others. Additionally, when heirs receive the property through intestate, but fail to pay the taxes on the land, this could expose the property to foreclosure and will allow the government to sell the property.

A living will provides detailed instructions in the future to health care providers about withholding or removing life-prolonging measures in certain circumstances. The same decisions you would make if you could communicate directly with your medical provider will be plainly stated in a living will. A living will can be withdrawn in writing or by clearly communicating in any way the intent for it to be withdrawn.

Your legacy is not only significant to you but also to your family. There are various requirements and protections that need to be present in a valid will, therefore it is always important to consult an attorney to assist you with drafting a will correctly.

Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham and Laurinburg. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com.

comments powered by Disqus