Many people never take the time to create a valid will and pass away without naming their heirs. These individuals are said to have died intestate, meaning that they had no will. In these cases, the North Carolina intestacy laws will control how their property is distributed among their heirs.
When Intestacy Laws Apply
Wills are only valid in North Carolina if they are attested in the presence of witnesses or holographic wills, which are written entirely in the decedent’s handwriting. § 31-3.2. Oral wills are typically only valid if made during a person’s last sickness and in the presence of witnesses, and they are only valid for personal property in these cases.
If your relative told you that you were going to inherit some property, but they never made a valid will, then you won’t have a claim against the estate. Instead, the North Carolina intestacy laws will control who gets all property of the estate.
Some types of property pass outside of the estate, such as joint bank accounts or retirement accounts with a designated beneficiary. These assets pass to the named beneficiary regardless of the existence of a will. However, most other types of property will pass under a will or the state’s intestacy laws.
North Carolina’s Intestate Succession Laws
The intestate succession laws list who will receive property in what share, depending on whether the decedent was married or had children or living parents. The type of property also determines which law applies.
For example, real property will pass entirely to a surviving spouse only if the decedent had no children or living parents. If the decedent had two children, the surviving spouse will only receive a one-third interest in the real property.
If you die without a surviving spouse, your assets will generally pass to your children. If you have no children, your parents will receive the estate. This pattern continues through siblings, grandparents, aunts and uncles, and their descendants.
The most obvious drawback of intestate succession laws is that your property may not be distributed as you would have wanted it to. However, there are also other downsides:
- If you have a large estate, you may miss the opportunity to minimize your estate taxes
- You may not be able to protect assets in your estate from the claims of creditors
- Your children may receive property outright at age 18 to 21, with no restrictions on how they use the property
These problems can often be solved by creating a valid will. If you don’t have a complicated estate, a simple will drafted by your estate planning attorney can usually resolve these issues and make sure your wishes are carried out.