Citizens of all states have the opportunity to make a Will that disposes of their property after their death. But because it’s so important to have an orderly transfer of property after someone dies, all states create a “Will” for those who die without one.
The laws that control who will receive your property if you die without a Will are known as intestacy statutes. In North Carolina, they are known as the North Carolina Intestate Succession Act. They provide formulas that dictate who will get your property if you die without a Will. The statutory formulas are rigid and inflexible and do not consider your individual wishes and unique circumstances.
Keep in mind that these rules affect your probate estate. You likely have assets that will pass outside of probate to beneficiaries without regard to a Will or intestacy statutes. For example, in North Carolina, married couples usually own real estate as tenants by the entirety. When one spouse dies, the survivor inherits the deceased spouse’s share automatically. Additionally, you may have insurance policies or retirement plans on which you have appointed beneficiaries. Those assets will pass to their intended beneficiaries regardless of these rules.
Below is a summary of North Carolina’s intestacy laws.
Who Inherits When Single Persons with No Descendants Die Without a Will?
If you are a single person and have no descendants, your parents will inherit your property in equal shares. Your surviving parent will receive all your property if one of your parents dies before you.
If both parents are deceased, then your siblings (or the descendants of your deceased siblings) will inherit your property.
If you are single, have no surviving descendants, and no surviving parents, surviving siblings, or nieces or nephews, then your property will be split into two halves. One-half of your property will pass to and through your maternal grandparents, and the other half will pass to and through your paternal grandparents. If one side of the family has died out, the side of the family that has surviving members will inherit everything.
On rare occasions, when a single person dies without any surviving heirs, his estate will pass to the State of North Carolina.
Who Inherits When Single Persons with Children Die Without a Will?
If you have one child who survives you, your surviving child will inherit all your property.
If you have two or more children, who all survive you, they will all share your property equally. However, if one or more or more of your children predecease you, the distribution gets trickier.
- Suppose John had three children, Tom, Dick, and Harry, but Tom dies before John. Suppose Tom had a couple of surviving children, Jack and Jill. In this case, Dick and Harry would each receive a third of John’s property, and Jack and Jill would share the third that would have passed to Tom.
- But what if Tom and Dick both predeceased John, and Dick had one child, Mary, who survived him. In this case, Harry would receive a third of the property, but since the remaining beneficiaries are all John’s grandchildren, Jack, Jill, and Mary would each receive an equal share of the remaining two-thirds of the property.
Who Inherits When Married Persons Die Without a Will?
Most people assume that if you are married and die without a Will, all your property will pass to your surviving spouse. That’s not always the case.
If you die married, the distribution of your other property will depend on whether the property is real property or personal property, and whether you have surviving parents or children.
If you die without a Will, but don’t have children or surviving parents, all your real property will pass to your surviving spouse. That’s not the case if you have surviving children or surviving parents.
If you do not have any children but at least one of your parents survives you, then one-half of your real property will pass to your spouse. The other one-half interest will pass to your parents.
What happens if you have children? Well, one child or the descendants of that child survive you, your spouse will receive a one-half interest in your property, but the other half will pass to your child or the descendant of that child.
Your surviving spouse will inherit a smaller share if you have more than one child. If you have two or more children or descendants of any children, then your spouse will inherit 1/3 undivided interest in your real property, and your children will inherit the rest.
If you die without a Will, but don’t have children or surviving parents, your spouse will inherit all your personal property. That’s not the case if you have surviving parents or children.
If you do not have children, but both or either of your parents survive you, then your spouse receives the first $100,000 in value plus one-half of the balance of the personal property. Surviving parents would inherit the remainder.
What happens if you have children? If one child or descendants of one child survive you, your spouse will inherit the first $60,000 in of personal property plus one-half of the balance of the property. Your children or their descendants will inherit the remainder.
But if more than one child survives you, then your spouse inherits the first $60,000 in value but only one-third of the balance of the personal property. Your children or their descendants will inherit the remaining personal property.
You Need for a Will
Intestacy can be problematic for many people. For example, suppose you are single but plan to marry your fiancé with whom you live. If you die without a Will, your fiancé would not receive your estate, something you likely would have wanted. Or perhaps you have a strained relationship with one or more of your parents. You may have preferred your estate to pass to a friend or a charity. That wouldn’t matter either. Your parents would inherit your property anyway.
Surviving spouses, who assume they will inherit all their spouse’s property after they die, are usually shocked when they discover that is not the case. This can be especially catastrophic in situations where there is a contentious relationship with the deceased spouse’s parents, or in blended family situations where there is an acrimonious relationship with stepchildren.
In situations where children are minors, not having a Will means the court Will appoint a guardian to hold the property your children inherit. The guardian will need to file annual accountings, which can be time-consuming and costly. Additionally, the guardian would not be permitted to distribute principal for the child’s support or education unless evidence existed that your spouse lacked sufficient assets to provide support. Finally, your children would receive that property on their 18th birthday, when they may not have the wisdom or maturity to handle it.
If you want the freedom to decide how and to whom your property will be distributed when you die, you need a Will.
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