What happens if we wait to do estate planning and the person’s memory gets worse? – North Carolina

Short Answer

In North Carolina, waiting can turn a straightforward estate plan into a much harder (and sometimes impossible) project if the person’s memory declines to the point that they no longer have legal capacity to sign a will or create an irrevocable trust. When capacity becomes questionable, documents are more likely to be challenged later, and families often end up needing a court-supervised guardianship to handle finances and legal decisions. Acting sooner also makes it easier to document that the person understood what they were signing.

Understanding the Problem

In North Carolina estate planning, the key question is what happens if a person waits to sign a will and an irrevocable trust until after memory problems progress. The decision point is whether the person still has enough mental capacity at the time of signing to make those documents valid. If the person cannot understand what the documents do when they sign, the plan may fail or trigger a court process to appoint someone else to act.

Apply the Law

North Carolina generally requires that a person have sufficient mental capacity at the time they sign a will or create an irrevocable trust. If capacity is weak or fluctuates, the risk goes up that family members (or other interested parties) will later claim the person did not understand what they signed or was pressured into signing it. Wills are handled through the Clerk of Superior Court in the county where the estate is administered, and disputes can be raised through a will contest (called a “caveat”).

Key Requirements

Capacity at the time of signing: The person must be able to understand, in a basic way, what the document is and what it does when they sign it.
Proper execution formalities: A will must be signed and witnessed in the manner North Carolina law requires; otherwise it may not be admitted to probate.
Voluntary decision-making: The plan should reflect the person’s own choices, not someone else’s pressure, because undue influence claims are common when memory is declining.

What the Statutes Say

N.C. Gen. Stat. § 31-1 (Who may make will) – Allows a will by a person who is 18+ and of sound mind.
N.C. Gen. Stat. § 31-11.6 (Self-proved wills) – Provides a way to make a will “self-proved” using sworn statements, which can reduce later proof problems.
N.C. Gen. Stat. § 31-32 (Filing of caveat) – Sets the process and time limits for challenging a will after probate.

Analysis

Apply the Rule to the Facts: Here, a relative is considering moving forward with estate planning documents for another person, including an irrevocable trust and a will. If the person’s memory worsens before signing, it becomes harder to show the person understood the plan and chose it freely, which increases the risk the documents will be rejected later or challenged in court. Because an irrevocable trust usually involves giving up control in a meaningful way, capacity concerns tend to be a bigger practical issue than with simpler documents.

Process & Timing

Who signs: The person making the plan (not the relative). Where: Typically in an attorney’s office in North Carolina with the required witnesses and a notary if using a self-proving affidavit. What: A will, trust agreement (including any funding/transfer documents), and often related documents such as powers of attorney and health care directives. When: Before memory decline creates doubt about capacity; timing matters most at the moment of signing.
Documentation step: When capacity could be questioned, attorneys often take extra steps to create a clear record that the person understood the plan (for example, careful intake notes, private meetings with the person, and structured questions about assets and intended beneficiaries). These steps can reduce the chance of a later dispute.
If planning is delayed too long: If the person can no longer make decisions reliably, the family may need a guardianship case so a court can appoint someone to manage finances and legal decisions. That process is public, supervised, and can limit what changes can be made compared to what the person could have done personally while they still had capacity.

Exceptions & Pitfalls

“Good days and bad days”: Some people with memory issues can still sign valid documents during a clear period, but the signing must be handled carefully to show capacity at that time.
Undue influence risk: When a relative is heavily involved (especially if that relative benefits under the plan), the risk of a later claim that the person was pressured increases. Independent attorney meetings and clean execution procedures help reduce that risk.
Execution mistakes: A will that is not properly witnessed (or a trust that is not properly funded with the intended assets) can fail even if capacity was fine.
Trying to “fix it later” after incapacity: Once the person lacks capacity, family members usually cannot simply sign a new will or create an irrevocable trust on the person’s behalf. At that point, court involvement may be the only path for certain decisions.

For more background on capacity concerns in this setting, see mental capacity to sign a new will or trust and how families often approach helping set up an irrevocable trust and a will when memory is already a concern.

Conclusion

In North Carolina, waiting to do estate planning can backfire if memory declines to the point that the person cannot understand and voluntarily sign a will or an irrevocable trust. The later the planning happens, the higher the risk of an invalid document, a future will contest, or the need for a court-supervised guardianship. The most practical next step is to schedule a capacity-focused signing process and complete the will and trust while the person can still clearly explain the plan.

Talk to a Estate Planning Attorney

If you’re dealing with estate planning where memory changes may affect whether documents can be signed and upheld, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.