How Do You Revoke a Will In North Carolina?

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You can revoke a will under North Carolina law.  People often revoke wills because they want to change the people that they have designated to receive their assets, or if they have gone through a major life event, such as marriage, the birth or adoption of a child, or divorce.

You can revoke a will in North Carolina in two general ways:

  1. Subsequent Written Will, Codicil, or Revocatory Writing
  2. Physical Act

 

Portions of a will can be revoked by operation of law when a testator gets divorced or has a marriage annulled after making a will.  Life events such as marriage and children can also have an effect on the will.

North Carolina General Statutes, Chapter 31, Article 2 governs revocation of wills.

Revoke a North Carolina Will By Subsequent Writing

The most common way to revoke a will under North Carolina law is by subsequent writing.  North Carolina G.S. 31-5.1(1) provides that a written will, or any part thereof, may be revoked:

By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills.

The “subsequent writing” is usually a subsequent written will, a codicil, or any other writing that expressly states that the testator is hereby revoking the will.  The subsequent writing must be executed with the same formalities required to execute a valid will in North Carolina.

Revoke a North Carolina Will By Physical Act

Revoking a will by physical act is the other recognized method to revoke a will under North Carolina law.  North Carolina G.S. 31.-5.1(2) provides several requirements to revoke a will by physical act:

  1. The will must be burnt, torn, canceled, obliterated, or destroyed;
  2. The physical act must be done with the intent and for the purpose of revoking the will;
  3. The physical act must be done by the testator himself or by another person in the testator’s presence and by the testator’s direction.

 

If you choose to revoke a North Carolina will by physical act, you must make sure that it is clear that you have intended to revoke the will.  If it is at all questionable whether you revoked the will, the door has been opened to probate litigation.

Does Divorce Revoke a Will In North Carolina?

No, divorce does not revoke a will under North Carolina law, but it does, unless otherwise specifically provided for in the will, revoke all provisions in the will in favor of the testator’s former spouse.  North Carolina G.S. 31-5.4.  This includes any provision conferring a general or special power of appointment on the former spouse and any appointment of the former spouse as executor, trustee, conservator, or guardian.

If the testator remarries the former spouse, and the provisions of the will were revoked solely by operation of North Carolina law, the provisions of the will are revived by the testator’s remarriage to the former spouse.

A North Carolina Will Is Not Revoked By Marriage

North Carolina law makes clear that a will is not revoked by the subsequent marriage of the maker.  North Carolina G.S. 31-5.3 provides:

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.

A North Carolina Will Is Not Revoked By the Birth Or Adoption Of a Child

The subsequent birth or adoption of a child also does not operate to revoke a North Carolina will.  North Carolina G.S. 31-5.5.  However, any after-born, after-adopted, or entitled after-born child born out of wedlock shall have the right to share in the testator’s estate to the same extent the after-born, after-adopted, or entitled after-born child born out of wedlock would have shared if the testator had died intestate unless:

  1. The testator made some provision in the will for the child, whether adequate or not;
  2. It is apparent from the will itself that the testator intentionally did not make specific provision therein for the child;
  3. The testator had children living when the will was executed, and none of the testator’s children actually take under the will;
  4. The surviving spouse receives all of the estate under the will; or
  5. The testator made provision for the child that takes effect upon the death of the testator, whether adequate or not.

 

The specific procedures to revoke a will under North Carolina law must be followed for an effective revocation.  The most sure-fire way to make sure that you have properly revoked your will, and put one in place that carries out your testamentary wishes, is to consult with a North Carolina probate lawyer.

 

More Probate Information For North Carolina