It is a mistake to put off preparing a will in North Carolina. Dying without a will causes your surviving family members unnecessary legal headaches and may result in your money and property going to people who you would not have left them to otherwise.
Dying without a will is known as having died intestate. It means the court will appoint an administrator to distribute your bank accounts, real estate, household goods, jewelry, and other assets according to the requirements of North Carolina probate law.
Most people who write a will leave their property to their immediate family, so the laws governing intestate succession in North Carolina generally distribute property in a similar way. The estate administrator cannot consider what you may have preferred nor what family relationships may have been closer or more strained than others. Sometimes, this leads to decisions that cause family disputes.
At the Brady Cobin Law Group, PLLC, we strongly suggest that all adults have a will to direct the division of their assets upon their death. A will ensures that your wishes are fulfilled and can stop family disagreements before they start. A will can help your estate avoid many of the costs involved with probate, the legal process for validating and distributing an estate’s assets.
Does a Spouse Automatically Inherit Everything in NC?
After a person dies in North Carolina, the probate court determines who the estate’s creditors and heirs are and what portion of the estate each is entitled to receive.
Many people assume that if they do not have a will, then their spouse will automatically inherit everything. This is not necessarily true.
What Happens When a Person Dies Without a Will in NC?
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.
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:
|Spouse and one child, or child’s descendants||Your spouse receives the first $30,000 worth of personal property and remaining personal property and real estate are split evenly between your spouse and child.|
|Spouse and two or more children or the decedents of the children||Your spouse receives the first $30,000 worth of personal property, one-third of the remaining personal property and one-third of all real estate. Remaining personal property and real estate is split evenly among the children.|
|Spouse and one or more parents||Your spouse receives the first $50,000 worth of personal property. 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, he or she receives everything.|
|Children only or their decedents||All property and possessions 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 even splits among more distant surviving family members, including, in order, siblings, grandparents, uncles and aunts, and others “who otherwise would be entitled.”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.|
The law also 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).
- If no blood relatives survive, the estate’s assets go to the State of North Carolina (known as “escheat”). Further, many people are surprised to learn that a deceased’s parents have the right to such a potentially large share of their assets if the deceased and their spouse have no living children.
Selling Off Your Family’s Inheritance Because There’s No Will
You may have noticed the division of property under the N.C. Intestate Succession Act, such as the first $30,000 or $50,000 of personal property going to a spouse and dividing the remaining property into halves or thirds.
Often, an estate administrator will sell property from the estate of an individual who has died intestate to pay debts and taxes and then to satisfy requirements of the law. As the probate court’s appointed estate administrator, he or he has the right to sell property as needed.
In other words, 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 property they should have inherited.
Instead, a will could 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 in the 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 litigation, 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 including both individuals such as children or other relatives and 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 for 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 dictates of a 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, and elder law matters.
We can help you create a will for the first time or revise 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.