Estate Planning

Bequests Under Will to Drafting Attorney to be Prohibited

By Gregory Herman-Giddens

Beginning January 1, 2010, it will be unlawful for North Carolina attorneys to prepare a Will or Codicil naming the attorney as a beneficiary unless the attorney is within five degrees of kinship of the testator, a present or former spouse of the testator, or a parent, sibling or child of a spouse or former spouse of the testator.  If the law is violated the bequest or devise is void.  Inclusion in the Will or Codicil as an Executor or Trustee is permissible.

Drafting such a Will is also viewed as unethical by the North Carolina State Bar, which means that an attorney can be disciplined or disbarred for doing so.

If an attorney does draft a Will or Codicil in which he or she is a beneficiary of an allowable family member, he or she must attach an affidavit to the Will stating that he or she is in compliance with the law.  N.C.G.S. Section 31-4.1.

Also, on every Will or Codicil prepared after December 31, 2009, an attorney must add a statement with his or her name and business address, stating that he or she prepared the Will. N.C.G.S. Section 31-4.2.

Session Law 2009-182

Interestingly, the new law does not mention living trusts, so those desiring to do so could easily skirt the law by preparing a revocable living trust rather than a will.  You can tell we don't have any estate planning experts in the North Carolina General Assembly!

Full post as published by North Carolina Estate Planning Blog on July 20, 2009 (boomark / email).