Wills & Estates

Can I Get A Witness?

All documents must be properly executed in order to be valid. Proper execution includes signing the right name, having qualified witnesses (when required), and a Notary Public who ensures all blanks are completed.  North Carolina has specific execution requirements for Real Estate and Estate Planning documents.  The Notary does not have to be licensed in North Carolina, but the language of the document that the Notary signs must comply with North Carolina law. Estate Planning documents may be valid under another state’s law, but fail to meet the North Carolina requirements.

Deeds, Free Trader Agreements and Durable Powers of Attorney do not need to be witnessed, but must be properly notarized.   The Grantor or Principal must sign their name exactly as typed on the document.  The Notary will fill out the notary section of the document and place a legible seal where indicated.  Since these documents may be recorded in the Register of Deeds, they will have a 3” top margin on the first page (for recording data to be stamped on) and the sides must be at least ½” margin.  The notary seal cannot go into the margins.

 A Health Care Power of Attorney and Living Will (Declaration of Desire for a Natural Death) require two witnesses plus a Notary Public and all parties have to be present together to see each other sign.  The witnesses swear before the Notary public that they believe the Principal or Declarant (person signing the document) to be competent and acting voluntarily.  They also have to swear that they are not related to the signer in any way, they are not providing health care to the signer, nor do they have an expectation they could inherit upon the signer’s death.  

 A Last Will and Testament also requires two witnesses and a Notary Public in order to be a “self-proving” will.   The Notary Public should ask questions of the Testator so that the witnesses can assess that the Testator is competent and not acting under any duress.  If the Will does not have the requisite North Carolina self-proving language, then it will be necessary to locate the witnesses and have them sign an affidavit in order to qualify for probate.  A handwritten will does not require any witnesses or notary, but it must be completely in the testator’s handwriting, signed, and found with their important papers.  A properly executed self-proving Will saves time and money in the estate administration.