North Carolina Intestacy law: Who Inherits Property When There is No Will?
Updated: Apr 19
Before we begin, let's look at a few words to help you better understand this article.
Decedent - Is the person who died
Administrator, executor, personal representative - Is the person assigned to manage the decedent's assets. These three all have the same role.
Assets - Anything that belonged to the decedent. ex. houses, boats, cars, money, stocks & bonds, furniture, appliances, land.
Heirs - Usually it is family: Spouse, children, parents, uncle, aunts, cousin
Beneficiary - The person that the decedent named in the will or an account to receive certain or all assets.
Who Does It Go To?
North Carolina law provides that if someone passes away without a valid will (also known as dying intestate), North Carolina's intestacy laws will dictate how their property will be divided.
The state's probate court will appoint an administrator to handle the distribution of the assets to creditors and beneficiaries.
So, this question is often asked," Who inherits the property when there is no will?" Keep reading to find the answers.
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What is Intestate Succession in North Carolina?
North Carolina Intestate Succession Act dictates 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 more so by family issues such as remarriage.
Furthermore, most people who write a will leave their property to their immediate family. Thus, the North Carolina estate laws governing intestate succession generally distribute property in a similar way.
The Intestacy laws try to mimic the final wishes of the average person.
The Clerk of the Superior Court's Office in the county where the decedent last resided handles the probate process.
The probate court will designate an estate administrator to take stock of all assets, settle any outstanding debts or taxes, settle burial expenses, and distribute any remaining funds or property to the beneficiaries.
Property exempted from North Carolina Intestacy law
Because of the contractual nature of some assets, they are not subject to probate. Such Assets are distributed directly to beneficiaries without the need for a Will or the application of intestacy laws.
Policies and accounts such as retirement funds and life insurance often have beneficiaries named.
Also excluded from probate would be any other assets held in a joint tenancy with the right of survivorship.
Tenancy by the entirety is the most common form of joint property ownership for North Carolina's married couples. When one dies, the surviving spouse automatically takes over the deceased's part of the property, if they purchased the property together at the same time.
If your spouse owned the property before you were married or he later purchased a piece of property in his name only while you were married, I would suggest you read the article "Surviving Spouses Property Rights in North Carolina" to get an understanding of your rights as well as speak with a probate or estate planning attorney to advise you.
Who inherits property when there is no will?
According to the North Carolina intestate succession laws, who inherits property depends on the deceased marital status at death and the number of surviving relations.
Also, for married decedents, the distribution of property will depend on whether the property is real or personal property and whether you have surviving parents or children.
The following shows how property is shared among survivors according to intestate statutes:
Where the deceased was single with living parents
If only the parents survive an unmarried decedent, then all the assets will be divided evenly between both parents.
However, if there's only one surviving parent, they will inherit all property.
Where deceased has a living spouse
Without living parents and children, the surviving spouse takes possession of all property.
Where the spouse and parents are living
A common misconception is that if one does not make a will, their spouse will be the sole beneficiary of their estate.
In some instances, this may be true, but in most cases, it is not.
If there are no children in the family, but the spouse and parents survive, the spouse will get half of the real estate and the first $100,000 in personal property.
The surviving spouse will receive half of the excess if there is more than $100,000 in personal property.
In North Carolina, if your spouse's parent(s) are alive and your spouse did not have any children, his parent(s) are entitled to receive half of the real estate and the remainder of the personal belongings.
Spouse and one child, or child's descendants, are alive
The surviving spouse will inherit the first $60,000 value of the decedent's personal property and half of the excess.
The child will get the remaining personal property.
However, the spouse and child share in the real estate equally. However, if the child is deceased, the grandchildren will inherit instead.
Spouse and two or more children or the decedents of the children are alive
In line with North Carolina Intestacy law, the first $30,000 in personal property and one-third of the remaining personal property goes to the surviving spouse.
Likewise, one-third of the real estate. The surviving children (or their descendants ) get an equal share of the remaining personal and real property.
Where the deceased is survived by children only or their descendants
Where only the children survive, they will all receive an equal share of the property and real estate.
In the case of a single child, all assets are passed on to that child. However, if a child predeceases the parent, their inheritance will go to their direct descendants.
Where there is no spouse, child, or parent alive.
The laws governing intestacy offer further guidelines for allocating the decedent's assets equally among more distant relatives, such as siblings, grandparents, uncles, and aunts.
The law also extends to nephews, nieces, cousins, etc.
Where there are no surviving blood relations
The State of North Carolina becomes the sole beneficiary of a deceased's property (a process known as "escheat") if there are no other surviving relatives or heirs.
However, this seldom occurs because the law provides for the distribution of the estate to even the remotest of relations to the decedent.
Most people without relatives would instead give their estate to a favorite institution of higher learning or charity than let it go into escheat.
Children's Shares According to North Carolina Intestacy law
The state of North Carolina must recognize your children as your legal dependents/children before they can inherit from you under its intestacy statutes.
Consider the following situations that might affect a child's inheritance:
As with biological children, legally adopted children are entitled to an intestate share. However, foster or stepchildren not formally adopted will not necessarily inherit.
Children placed for adoption.
Biological children officially adopted by another family will not be entitled to a portion. However, if the spouse adopts the decedents, biological children, it will not affect their intestate inheritance.
Children born after a father's death.
Children born within ten months after the parent's death will get a share of the intestate inheritance.
Children born outside of marriage.
Children born outside of marriage are entitled to an intestate inheritance only if they were officially legitimated and paternity was recognized.
Suppose a child was born out of the marriage a year after the father's death. In that case, they could inherit if paternity was confirmed through DNA testing.
Check out the article "North Carolina Intestate Estates – Part II" this article presents 10 examples that evidence the specific application of North Carolina’s intestacy rules and explain the specific problems that can arise when North Carolina’s intestacy rules govern instead of a valid Will that expresses a decedent’s testamentary intentions.
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* NOTE: North Carolina Probate Solutions and the author of this article is not a licensed attorney or CPA. This post should not be considered legal or tax advice. Always consult an estate attorney or tax professional when needing legal answers and legal advice.