What Happens If You Die Without a Will in North Carolina?

Updated

North Carolina and Duke play each other twice a year. Some fans in North Carolina support the Tar Heels. Some support the Blue Devils. Some might not follow college basketball at all. But either way, everyone in the state is free to decide how invested they want to be in college basketball.

Estate planning in North Carolina is similar to college basketball; you can choose what happens to your assets after you die. By evidencing your choice in a valid will, you can transfer your money, property, and possessions to your chosen people.           

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Many North Carolinians do not have a will when they die. This article walks you through what happens if you die without a will in North Carolina.  

North Carolina’s Intestacy Laws Explained

When you die, someone needs to determine who will take over your assets. 

If you have executed a valid will in North Carolina, the people in your will can become the new owners of your assets.

However, if you do not have a will when you die, North Carolina has laws that determine who should be the new owners of your assets. These are called “intestacy laws.”

Under North Carolina’s intestacy laws, the following people become your beneficiaries if you die without a will, in this order of priority:

  • If you have a surviving spouse but no descendants or parents, the surviving spouse gets everything.
  • Suppose you have a surviving spouse and either one surviving child or any surviving descendant of a predeceased child. In that case, the surviving spouse receives one-half of real property, $60,000, plus one-half of the balance of personal property, and the surviving child or surviving descendant gets the rest.
  • Suppose you have a surviving spouse, two or more surviving children, or some surviving grandchildren of a predeceased child. In that case, the surviving spouse receives one-third of real property, $60,000, and one-third of the remaining personal property, and the surviving children or surviving descendants receive the rest.
  • Suppose you have a surviving spouse and surviving parents but no surviving descendants. In that case, the surviving spouse receives one-half of any real estate property, $100,000, and one-half of the personal property, and the parents receive the rest.
  • If you have no surviving spouse but do have surviving descendants, the surviving descendants get everything.
  • If you have no surviving spouse or descendants but have surviving parents, the surviving parents get everything.

North Carolina’s intestacy laws also provide rules for multiple surviving descendants; everything is split evenly among the surviving children. If a child has predeceased you and leaves behind grandchildren, those grandchildren will split the share that their parent would have received.

For example:

Bill dies. His son Arnold predeceased him, and he is survived by two children, Marianne and Denise, and three grandchildren: Carol (Marianne’s daughter), Zachary, and Nina (Arnold’s children). As to Bill’s surviving children, Marianne and Denise each receive one-third of his assets because Bill had three total children. Bill’s surviving grandchildren, Zachary and Nina, will each receive a one-sixth because they are the two surviving grandchildren of their predeceased father, Arnold. Carol does not receive a beneficiary interest because her mother, Marianne, is still alive and was able to inherit.

The intestacy laws in North Carolina also cover other situations if you die without a will and have no surviving spouse, children, descendants, or parents.                   

How Does Probate Work in North Carolina There Is No Will?

Probate in North Carolina is the process of transferring assets to the inheritors after a person dies. It is a legal process supervised by the probate court (generally the Office of the Clerk of Superior Court) in the county where the deceased resided.

Even if the deceased left a will, probate can still sometimes happen.

It begins with the probate court appointing a person to manage the deceased’s estate. If the decedent has no will, this person, known as the administrator or personal representative, is generally appointed in the following order under North Carolina law:

  • The surviving spouse.
  • Any other beneficiary under the intestacy laws.
  • Any “next of kin” (described below). Any person who is more closely has priority.
  • Any creditor.
  • Any person of good character residing in the applicable county.
  • Any other person of good character who is not otherwise disqualified.

The personal representative has various responsibilities, including:

  • Conducting an inventory of the decedent’s assets.
  • Collecting and preserving the decedent’s assets, including establishing an estate bank account.
  • Providing notice of the death to creditors, as North Carolina law requires. 
  • Paying the creditors.
  • Filing any necessary tax returns in connection with the estate.
  • Distributing any remaining assets to the beneficiaries.

After the personal representative completes these responsibilities, the court can close the probate.

Who Typically Inherits Assets in North Carolina If There Isn’t a Will?

The people who typically inherit assets in North Carolina when there is no will are the close family members described above: surviving spouse, children, descendants, and parents. North Carolina’s intestacy laws designate these “default” beneficiaries under the assumption that most people want their close family members to inherit their assets.

This assumption ignores that some North Carolinians may not want their close family members to be their beneficiaries, or at least not in the manner designated by North Carolina’s intestacy laws. For example:

  • Example 1: Jane dies, survived by her boyfriend, Tom, and mother, Kate. Jane wants Tom to be the sole beneficiary but does not execute a valid will. Under North Carolina’s intestacy laws, everything will go to Jane’s mother, Kate.
  • Example 2: Gloria dies, survived by her husband, Jeffrey, and her two children, Tim and Linda. Gloria’s estate consists of $600,000 of real property and $600,000 of personal property. Gloria wants to transfer all of her real property plus $400,000 of her personal property to Jeffrey and $100,000 each of her personal property to Tim and Linda but does not execute a valid will. Under North Carolina’s intestacy laws, Gloria’s assets transfer $200,000 of real property and $240,000 of personal property to Jeffrey and $200,000 of real property and $180,000 of personal property each to Tim and Linda.

Jane and Gloria did not have a will, so their family couldn’t follow through with what they would have wanted. If you do not wish the state intestacy laws to determine your beneficiaries, you need a valid will.

The good news is that it is not difficult to have a valid will in North Carolina. You need a written document that you sign in front of two witnesses.  

Frequently Asked Questions: Dying Without a Will in North Carolina

Here are some frequently asked questions about dying without a will in North Carolina.

What happens when your parent dies without a will?

If your parent leaves behind a surviving spouse and you are the only child, the surviving spouse receives one-half of your parent’s real property, $60,000, plus one-half of the rest of the balance of your parent’s personal property. You receive whatever is left after that.

If there is a surviving spouse and either (a) one or more other surviving children, or (b) any surviving descendant of a predeceased child, the surviving spouse receives one-third of your parent’s real property, $60,000, and one-third of the balance of your parent’s personal property. You and the other surviving children or descendants will split the rest of your deceased parent’s assets.

If there is no surviving spouse, you, any other surviving children, and any other surviving descendants of a predeceased child receive all of your parent’s assets.

How much you inherit is based on the number of surviving children or grandchildren you have in your family. If there is no surviving spouse and you are one of five children (all surviving), you receive one-fifth of your parent’s assets. 

What are a surviving spouse’s rights if there’s no will?

A surviving spouse in North Carolina has a lot of rights if there is no will.

If there are no surviving descendants or parents, the surviving spouse is the sole beneficiary.

Suppose there is either one surviving child or surviving grandchild of only one predeceased child. The surviving spouse will receive one-half of the deceased’s real property, $60,000, and one-half of the balance of the personal property.

Suppose there are two or more surviving children, one surviving child and any number of surviving grandchildren of a predeceased child, or any surviving descendants of two or more predeceased children. In this case, the surviving spouse gets one-third of the deceased real property, $60,000, and one-third of the balance of the deceased’s personal property.

Suppose there are surviving parents but no surviving descendants. The surviving spouse will receive half of the decedent’s real property, $100,000, and one-half of the balance of the deceased’s personal property.

In addition, the surviving spouse has priority in terms of being appointed as the personal representative to manage the deceased’s estate.  

Are there any probate exemptions if you die without a will in North Carolina?

Yes. The probate exemptions if you die without a will in North Carolina include:

  • You can transfer $20,000 of personal property by affidavit exempt from probate. The number is $30,000 when a surviving spouse is the sole beneficiary.
  • Any assets for which you had to name a beneficiary, like an IRA, can transfer to the designated beneficiary exempt from probate.
  • Any assets owned in joint tenancy with rights of survivorship can transfer to the surviving joint tenant, exempt from probate.
  • You can transfer assets held in a trust (such as a living trust) to the beneficiaries described under the governing trust agreement, exempt from probate.   

How long does probate take when there is no will?

Probate in North Carolina generally takes a minimum of six months to a year, but it can take much longer if complexities arise. The specific timing for any probate depends on the particular factual circumstances of the case.

Probates generally take longer without a will because there can be more uncertainty and issues the probate court has to resolve.

Who is considered next of kin in North Carolina?

A provision of North Carolina law generally defines “next of kin” as those persons who would be beneficiaries under North Carolina’s intestacy laws.

As described above, “next of kin” can be relevant in determining who should be the personal representative of the deceased’s estate when the deceased dies without a will. 

Win the Estate Planning Game - Execute a Will

Basketball fans appreciate that they can choose for whom to root. Tar Heel fans would not want to support Duke, and Blue Devil fans would not want to support North Carolina.

Proper estate planning is also about exercising your personal choice in a valid will. Don’t “shoot an airball” and delegate your personal preference to the intestacy laws. If you want to win the game and effectively transfer your assets on death, you need a will. 

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