Denise Knows Probate!
In a prior article about North Carolina intestate estates, the general intestacy rules in North Carolina were described, and the importance of having a valid Will to avoid these intestacy rules was discussed.
To better understand North Carolina intestate estates, 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.
Need help with probate? Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here.
Example 1
Tom dies without a valid Will. Tom owns $600,000 of real property (real estate) and $360,000 of personal property. Tom is survived only by his wife, Mary.
Under North Carolina’s intestacy rules, all of Tom’s real property and personal property transfers to Mary.
Example 2
Example 2 is the same as Example 1, except that Tom is survived by his wife, Mary, and one child, Rachel.
Under North Carolina’s intestacy rules, Tom’s real property transfers $300,000 (50%) to Mary and $300,000 (50%) to Rachel, and Tom’s personal property transfers $240,000 ($60,000, plus 50%of the $360,000) to Mary and $180,000 (other 50% of $360,000) to Rachel.
Example 3
Example 3 is the same as Example 1, except that Tom is survived by his wife, Mary, and two children, Rachel and Jeff.
Under North Carolina’s intestacy rules, Tom’s real property transfers $200,000 (1/3) to Mary, $200,000 (1/2 of 2/3) to Rachel, and $200,000 (1/2 of 2/3) to Jeff, and Tom’s personal property transfers $180,000 ($60,000, plus 1/3) to Mary, $120,000 (1/2 of 2/3) to Rachel, and $120,000 (1/2 of 2/3) to Jeff.
Example 4
Example 4 is the same as Example 1, except that Tom is survived only by his two surviving children, Rachel and Jeff, and two grandchildren, Cole and Maria, who are the only children of Tom’s deceased child, Natalie.
Under North Carolina’s intestacy rules, Tom’s real property transfers $200,000 (1/3) to Rachel, $200,000 (1/3) to Jeff, $100,000 (1/2 of 1/3) to Cole, and $100,000 (1/2 of 1/3) to Maria, and Tom’s personal property transfers $120,000 (1/3) to Rachel, $120,000 (1/3) to Jeff, $60,000 (1/2 of 1/3) to Cole, and $60,000 (1/2 of 1/3) to Maria.
Example 5
Example 5 is the same as Example 1, except that Tom is survived only by his parents, Jack and Dorothy.
Under North Carolina’s intestacy rules, Tom’s real property and personal property transfer 50% ($300,000 of real property and $180,000 of personal property) to Jack and 50% ($300,000 of real property and $180,000 of personal property) to Dorothy.
Example 6
Peter desires that all of his property transfer to his wife, Julie. Peter dies without a valid Will. Peter owns $800,000 of real property and $560,000 of personal property. Peter is survived by Julie and his daughter, Victoria.
Under North Carolina’s intestacy rules, Peter’s real property transfers $400,000 (50%) to Julie and $400,000 (50%) to Victoria, and Peter’s personal property transfers $340,000 ($60,000, plus 50%) to Julie and $280,000 (50%) to Victoria.
Even though Peter’s testamentary intentions are for Julie to receive all of his property, North Carolina’s intestacy rules govern and require a different result.
Example 7
Alice desires that all of her property transfer 15% to her son, Larry, 15% to her daughter, Michelle, and 70% to her grandchild, Elsa;
Elsa is the only child of Alice’s deceased child, Felicia.
Alice dies without a valid Will. Alice owns $300,000 of real property and $600,000 of personal property. Alice is survived by Larry, Michelle, and Elsa.
Under North Carolina’s intestacy rules, Alice’s real property and personal property transfer 1/3 ($100,000 of real property and $200,000 of personal property) to Larry, 1/3 ($100,000 of real property and $200,000 of personal property) to Michelle, and 1/3 ($100,000 of real property and $200,000 of personal property) to Elsa.
Even though Alice’s testamentary intentions are for a “15%-15%-70%” allocation of her property among Larry, Michelle, and Elsa as beneficiaries, North Carolina’s intestacy rules govern and require a different result.
Example 8
Greg desires that all of his property transfer to a charity. Greg dies without a valid Will. Greg owns $1,000,000 of real property and $900,000 of personal property. Greg is only survived by his mother, Eleanor.
Under North Carolina’s intestacy rules, all of Greg’s real property and personal property transfers to Eleanor.
Even though Greg’s testamentary intentions are for a charity to receive all of his property, North Carolina’s intestacy rules govern and require a different result.
Example 9
Diana desires that all of her property transfer to a trust for her son, Brian, with her sister, Angie, as trustee of the trust. Diana dies without a valid Will. Diana owns $500,000 of real property and $200,000 of personal property.
Diana is only survived by Brian.
Under North Carolina’s intestacy rules, all of Diana’s real property and personal property transfers “outright” (and not in trust) to Brian.
Even though Diana’s testamentary intentions are for Brian to be a beneficiary subject to a trust with Angie as trustee, North Carolina’s intestacy rules govern and require a different result.
Example 10
George desires that all of his real estate transfer to his son, Martin, and all of his personal property transfer to his daughter, Cindy.
George dies without a valid Will.
George owns $800,000 of real property and $500,000 of personal property. George is survived by Martin and Cindy.
Under North Carolina’s intestacy rules, George’s real property and personal property transfer 50% ($400,000 of real property and $250,000 of personal property) to Martin and 50% ($400,000 of real property and $250,000 of personal property) to Cindy.
Even though George’s testamentary intentions are for all of his real property to only transfer to Martin and for all of his personal property to only transfer to Cindy, North Carolina’s intestacy rules govern and require a different result.
The Importance of Having a Will
Examples 6 through 10 show the critical importance of having a valid Will for North Carolina decedents. In these Examples, the testamentary intentions of Peter, Alice, Greg, Diana, and George were thwarted by application of North Carolina’s intestacy rules.
We all work hard to accumulate property during our lifetimes. We all have the right to generally control how this property transfers on death.
By having an intestate estate (no will), a North Carolina decedent in effect surrenders this right to the state. No North Carolinian should make this mistake. Instead, North Carolinians should have valid Wills to express and carry out their testamentary intentions.
Conclusion
It is highly recommended that you speak with a probate or estate planning attorney to answer questions specific to your situation. If you need help in finding a trusted attorney reach out to me and I will refer you to one.
Need help with probate? Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here.
Certified Probate Real Estate Specialist
Licensed Realtor
252-902-9006
* 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.