Dying Without a Will in North Carolina
What Happens When a Person Dies Without a Will Under North Carolina Inheritance Law?
If there is no will to direct the distribution of assets, then the property of the deceased’s estate is distributed according to the North Carolina Intestate Succession Act. The probate process is administered by the Office of the Clerk of Superior Court in the county where the deceased person had resided before death. The Clerk of Superior Court acts as the probate judge. The probate court will appoint an estate administrator to inventory all assets, pay debts and taxes, handle funeral expenses, and distribute whatever remains as directed by the law.
Some assets are not a part of probate because they are distributed according to contractual terms, such as life insurance policies or retirement accounts, which have designated beneficiaries. Other property held under joint ownership with rights of survivorship would be exempt from probate, as well, and your interest would pass directly to the other owner(s).
What is Intestate Succession in North Carolina?
The N.C. Intestate Succession Act, a complex law that runs 12 pages in printed form, proscribes the lines of inheritance when there is no will. It names which surviving family members may be considered heirs and in what order of succession they stand to receive an inheritance. The law is complex and is made more so by the reality of today’s American families and issues such as remarriage, stepchildren, and stepparents.
Provisions of the North Carolina Intestate Succession Act include that:
| Survivors | Distribution |
| Spouse and one child (or descendants of one child) | Your spouse receives the first $60,000 worth of personal property. The remaining personal property and real estate are split evenly between your spouse and child. |
| Spouse and two or more children (or their descendants) | Your spouse receives the first $60,000 worth of personal property, one-third of the remaining personal property, and one-third of all real estate. The remaining personal property and real estate is split evenly among the children (or their descendants, if a child died but left grandchildren.) |
| Spouse and one or more parents | Your spouse receives the first $100,000 worth of personal property. The remaining personal property and all real estate are split evenly between your spouse and parent(s). |
| Spouse only | Your spouse receives all assets that could pass under a will. |
| Parents only | Your entire estate will pass to and be divided equally among your parents. If there is only one parent, that parent receives everything. |
| Children only or their descendants | All property and possessions in the estate are divided evenly among the children. If there is only one child, he or she receives everything. |
| No spouse, children or parents survive | The law describes splits among more distant surviving family members, including, in order, siblings, grandparents, uncles and aunts, and their descendants.
If no legal heirs can be found, the property passes to the State Treasurer of North Carolina through a process known as escheat. |
The law describes more complex divisions of assets for further lineal descendants who survive (i.e., grandchildren, great-grandchildren and great-great-grandchildren), or for siblings and their lineal descendants (i.e., nephews and nieces), or for aunts and uncles and their lineal descendants (i.e., cousins).
Unpleasant Surprises
Many people are surprised to learn that when someone who is married without children passes away, that person’s parents have the right to such a potentially large share of their assets. They are also not pleased to learn that if no blood relatives survive, the estate’s assets go to the State of North Carolina (known as “escheat”).
We have found, in more than 35 years of assisting North Carolina residents with wills and estate plans, that even individuals who have no family members would rather leave their estates to a college or university or a charity of their choice than allow it to default into escheat.
Selling Off Your Family’s Inheritance Because There’s No Will
You may have noticed that the N.C. Intestate Succession Act often requires both real estate and personal property to be divided, such as when a deceased person leaves a spouse and two children and the property is split into three parts, with each of the three heirs receiving ⅓ of the real estate and the spouse receiving the first $60,000 of personal property and then splitting the remaining personal property with the children.
Often, an estate administrator will need to sell real estate, vehicles, and other property from the estate not only to pay debts and taxes but also to satisfy the requirements of the law. As the probate court’s appointed estate administrator, he or she has certain rights to sell the property as needed
Family Legacies Can Be Lost if You Die Without a Will
If you die without a will, any property your family holds dear — from the beach house where everyone gathered every summer to grandmother’s silver, or heirlooms passed down from your first ancestors — could be sold and gone forever. Your spouse or children might have a chance to object to a sale, but they might not even be asked. They may have the option of buying a property they should have inherited.
If you create a will instead, you can specify what is and what is not to be sold, if necessary, in probate.
Another potential problem is that creditors may initiate foreclosure proceedings on real property if the deceased failed to make mortgage payments during an extended illness prior to death. A will can provide instructions as to what assets should be sold to make up any amount in arrears. Since the bank or other lienholder only cares about what they are owed, they may foreclose and let the property go for less than its true market value.
In such a case, the estate administrator or the family may petition the court to be allowed to sell the property on the open market so that the debt is settled and the estate derives the benefit of any equity in the property.
Saving property in probate from foreclosure requires the assistance of an attorney experienced in estate proceedings, as we are at the Brady Cobin Law Group. But our attorneys would much rather help you establish a will now and save your family from the stress and potential legal problems that arise when there is no will.
What Should be Included in a Will?
Your will should include the names of your beneficiaries, who can includeindividuals such as your spouse and children, as well as charitable institutions.
Your will should name an executor who will make sure that the terms of the will are carried out. It should also name a backup executor in the event the executor is unable to fulfill the duties.
It should contain instructions about who should be designated as guardian of your minor children or other dependents.
It should specify the distribution of valuable property and personal items and heirlooms that have sentimental rather than actual value.
You may also designate who will take care of your pets after your death. Some people leave money to provide care for their pets.
Life insurance policies, retirement accounts and payable-on-death bank accounts that have named beneficiaries do not need to be included in the will.
How an Inheritance Lawyer Can Help
You don’t have to leave it up to a stranger and the decrees of law written generations ago to decide how your belongings are distributed when you are gone. At the Brady Cobin Law Group, our experienced inheritance lawyers know how important having a well-drafted will is to a family dealing with the loss of a loved one. We can help you document your desires and ensure that the people you care most about are provided for according to how you want them to be.
At Brady Cobin Law Group, PLLC, our focus is on helping individuals and families develop appropriate plans for estates of all sizes. For more than 35 years, our compassionate inheritance lawyers have helped families put in place plans for the orderly distribution of their possessions accumulated over a lifetime. Our attorneys handle probate issues, wills, trusts, and elder law matters.
We can help you create a will for the first time, or assist you with revising an outdated will to address changes in your life such as remarriage or additions to your family. View our estate planning calculator and any other helpful estate planning tools to learn what documents you may need. Contact us today to discuss how we can help you protect your family and your legacy.