What Happens If I Die Without A Will?

by Jackie Bedard on March 31, 2009

in Estate Planning,Intestacy

When a person dies without making a valid will, he or she is considered to have died intestate, and all possessions and property is divided among the deceased person’s surviving relatives according to rigid specifications set out by each state’s statutory law.

In North Carolina, after the payment of your debts, funeral expenses, probate and administrative fees, the remainder of your possessions will be divided based on North Carolina statutory law.  Under the North Carolina statutes, if you are survived by:

1. No spouse or children, with parent(s) living: Your entire estate will pass to and be divided equally among your parents. If only one parent is still living, then everything will pass to the living parent.

2. Your spouse and parents, but no children: Your spouse will receive the first $50,000.00 of personal property, one-half (1/2) of the remaining personal property and one-half (1/2) of all real estate.  Your parent(s) will receive one-half (1/2) of the remaining personal property and one-half (1/2) of all real estate.

3. Your spouse only, no children or parents living: Your spouse will receive all property which could pass under a will.

4. Your spouse and one child: Your spouse will receive the first $30,000.00 of personal property, one-half (1/2) of the remaining personal property and one-half (1/2) all real estate.  Your child will receive one-half (1/2) of the remaining personal property and one-half (1/2) of all real estate.

5. Your spouse and two or more children: Your spouse will receive the first $30,000.00 of personal property, one-third (1/3) of the remaining personal property and one-third (1/3) of all real estate.  Your children will evenly split the remaining two-thirds (2/3) of personal property and real estate.

6. One or more children, no spouse surviving. All of your property and possessions will be divided evenly among your children.

7. Neither spouse, nor children, nor parents surviving. The intestacy laws provide additional rules for distributing your assets to more remote relatives.   In the event that you have no other legal heirs (i.e., blood relatives), your assets will pass to the State of North Carolina (this is referred to as “escheat“).

At first glace, these results might seem acceptable, but for many, there are a host of problems, especially if there are minor children, step-parents or step-children involved.   See Problems With Intestacy.

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Problems With Intestacy | North Carolina Wills and Trusts
March 31, 2009 at 4:51 pm

{ 25 comments… read them below or add one }

laura June 2, 2009 at 11:44 am

In NC, if you and your spouse die without a Will, what happens to guardianship of the children? I heard, without stating anything in a Will, that the children would automatically go into foster care. Is this true?

Jackie Bedard June 8, 2009 at 6:06 pm

Wonderful question Laura! Under NC law, if a minor child has no parents, then social services will temporarily step in as guardian until a long-term guardian can be appointed. Thus, there is risk that in the short-term, your children may temporarily be placed in foster care until a guardian is selected by the court system. Generally, one or more family members will step forward and apply to be guardian of the children. In the event of a court battle between potential guardians, the process of appointing a guardian could be greatly delayed and increases the risk that your children could be in foster care for several months until a decision is made by the courts. If you have no family members able or willing to serve as guardian, then there is a risk that the children would permanently be placed in foster care. All parents should discuss with their estate planning attorney the appointment of guardians and how to best protect their children so that foster care is never a risk. Making the appropriate guardianship designations also gives you the flexibility to appoint the person YOU want, rather than leaving the decision to the court system and there is no obligation to select a family member if you have a friend that you feel would be a better guardian for your children.

M- July 3, 2010 at 8:27 pm

I just wanted to thank you for ALL of this wonderful information. I thought I was informed……….I also thought I was headed in the right direction. Why is it we just can’t manage to get this stuff together. I will see you at an upcoming seminar very soon. Also, just a note, please remind all non married, co-habitating couples how important it is to create a plan for their partner as well.
Thanks for great work. Looking forward to meeting you soon.

regina warren August 7, 2010 at 5:59 pm

My aunt died in May of 2009. My mom was speaking to her husband and was informed that he is not able to get any of her estate until he gets a lawyer. He is not able to touch the money in their bank account, cannot do anything to the house without letting the state know, cannot sell or give away her clothes without reporting to this state.

I have never heard of this before. They were married for 52 years and are surrvied by 6 children why isnt he entitled to her estate without having to seek legal council?

Please advise

Jackie Bedard August 23, 2010 at 7:50 pm

There are several potential factors in determining your uncle’s access to the accounts, including how the accounts were titled, whether or not your aunt had a will or trust in place, etc. While he is not required to obtain the assistance of a lawyer, I would recommend that he meet with an attorney that practices estate administration for assistance in handling your aunt’s estate.

Melissa October 9, 2010 at 7:00 pm

My father recently passed away without a will.My 2 brothers and I are at a complete loss at how any of this goes as we have never had to do this before.My father was married for the third time but they were seperated,but not yet divorced.His second and Third wife had children from previous marriages whom he never adopted but we have been told that it does not matter.Where do we go from here?Do not know the laws in North Carolina and what we are entitled to or how to go about the process.Third wife has told us it all goes to her but without a will is that correct?Any help you could give would be appreciated so much.Thank You.

Jackie Bedard October 10, 2010 at 6:33 am

Melissa, I am sorry for your loss. I’m afraid that due to the attorney ethical rules, I cannot about provide direct legal advice via this blog. My suggestion would be to contact an attorney that practices probate and estate administration law. They will be able to explain to you the next steps and help you establish who the correct heirs are.

Clara Ellis January 21, 2011 at 8:36 pm

Hello, Should my Dad pass away, he has 4 illegitimate children born during his marriage to my Mom- in addition to me and my brother. He also has no will but is very ill. What would happen to his estate in this case? Would his illegitimate children have a right to sue for a portion of his estate? He owns land and 3 homes. Or would my Mom get everything? Additionally, could they sue his estate or my Mom for back child support or paternity issues since he never paid any at all? Thank you for any advice you can offer.

Jackie Bedard January 31, 2011 at 1:18 pm

Clara, the status of illegitimate children depends on a few different circumstances. Here is a direct link to the North Carolina laws pertaining to how illegitimate children are treated under the intestacy laws: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_29/Article_6.html The intestacy rights and size of the shares of the various heirs depends upon several factors such as how many children there are, whether it was first marriage or later marriage, etc. You or your father may wish to consult with an estate planning attorney for more specific guidance about how these rules would apply to your family’s scenario.

Janet Trout March 8, 2011 at 7:40 pm

My brother had to be admitted to Copestone, a mental hopspital. He was my mothers caregiver. We had to admitt our mother to a nursing home. My brother overdosed and died. My mothers home was placed in our brothers name. My brothers life insurance was letft to my mother. In otherwords, my mother on medicare and medicade, and the only benificiary to my brothers life insurance, and my brothers name on the deed of my mothers home. What happens?

Jackie Bedard March 10, 2011 at 9:36 am

Janet, the rules surrounding Medicare and Medicaid are very intricate and specific. For Medicaid, there are many rules and restrictions as to how many assets and how much income a Medicaid recipient can receive and remain qualified for Medicaid benefits. However, there may be planning options available to preserve some of the assets and reduce the potential period of ineligibility. I recommend that you consult with an attorney that practices Medicaid law. This is a service that my office provides. If you would like to schedule a consultation with our office, I invite you to contact us at 919-443-3035.

David Adams March 14, 2011 at 3:45 pm

How can siblings of a deceased brother obtain the personal property of the deceased person when the only parent living is deemed not combatant and does not even know what her name is let alone who her family is in North Carolina? Also living in a rest home. Can someone please answer this for me.

Jackie Bedard March 14, 2011 at 3:59 pm

David, it sounds like you have two different issues that need to be resolved. First, it is likely that your brother’s estate will need to be probated (also referred to as “estate administration”). You should visit the estates division for the county in which he was a resident (Information for Wake County can be found here: http://web.co.wake.nc.us/courts/estateadmin.html). Second, for a parent that is incompetent, first look to see whether the parent ever executed a Durable Power of Attorney. If so, then you will need to review the Durable Power of Attorney to determine who is named as your parent’s agent and what they can do on his/her behalf. Depending on the type of Durable Power of Attorney, you may also need to obtain an affidavit from one or two physicians declaring your parent incompetent. If there is not a Durable Power of Attorney, then your family may need to consider a guardianship proceeding. This is a court process whereby you ask the courts to name a guardian on behalf of the incompetent parent. Information for Wake County can be found here: http://web.co.wake.nc.us/courts/guardianship.html. Given the multiple concerns, you may also wish to consider speaking to an attorney for more specific advice regarding your family’s circumstances.

Sylvia Rios March 19, 2011 at 6:58 pm

My question is both my parents are deceased (father first then mother). My mother made a will, leaving her home to her children seven left at the time the will was made, my mother died 11 years ago. Now one of my sisters has passed away last year, what happens with the house can we sell it with no problems? One of her sons thinks the house is his. Really need some help on this but live in Texas.

Jackie Bedard March 20, 2011 at 7:31 am

Sylvia, unfortunately if this happened in Texas, you need advice from a Texas lawyer, as this is a state-specific issue. The rules vary from state to state on how property is handled when there is no will. The first place you might start is with obtaining the court filings from the probate of your mother’s estate. Those records should indicate how the real estate was divided between the children. You can also check what’s on record at the register of deeds in the county in which the property is located. Who the current owners are will depend on several factors including what your mother’s will said, what form of ownership it was (for example, joint tenants with rights of survivorship or tenants in common), and then if your deceased sister did own a partial interest in the property, what happens to her interest would be determined by the Texas intestacy laws if she died without a will. Selling property with multiple owners can sometimes become a headache if the owners cannot agree on whether to sell or the terms of the sale. I would recommend seeking advice from a Texas estates attorney for more specific advice.

Summer April 7, 2011 at 6:08 pm

If a parent dies, with no spouse, no will, and very few assets (small, inexpensive mobile home, a car, contents of home), no credit debt, and the surviving children are all in agreement on dealing with the estate, would probate still be necessary? Would it still work the same?

Jackie Bedard April 8, 2011 at 4:37 am

Summer, how the assets must be handled depends on several factors, including how the assets are titled and the total value of all of them combined. It’s possible that the estate may be small enough to qualify as a small estate under NCGS Section 28A-25 (assuming that you’re in North Carolina). If it is eligible, the process is more streamlined. I would contact the estates division of the courthouse in which the parent was a resident for more details.

Jeremy November 25, 2011 at 9:29 pm

My wifes father passed away recently and did not have a will. We know that he has several properties but really aren’t certain on exact numbers or locations etc. What would you recommend we do in order to locate all of his estate, properties, money’s and etc? We think he has/had property in other states as well. Thank you.

Jackie Bedard November 27, 2011 at 7:44 pm

@Jeremy: I would review your father-in-laws records, including tax returns and bank statements for the past couple of years. Keep an eye out for property tax payments–this might help you track down the real estate. Check the tax returns for reported interest and dividends that might help you track down bank accounts. Good luck!

Deborah February 11, 2012 at 6:25 pm

If my husband dies without a will, will the property have to be sold to divide his estate between his children and myself?

Lisa February 12, 2012 at 11:50 pm

My ex-husband recently passed away suddenly. When we were married he had a will leaving his estate to me. Unfortunately he had become a hoarder and it has become impossible to find the will. The probate attorney will not allow funds from the estate to be used for a dumpster to search for the will. Is there anything I can do?????

Jackie Bedard February 13, 2012 at 7:47 am

While it depends on the specifics of the situation, North Carolina General Statutes 31-5.4 provides as follows: “Dissolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator’s former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of appointment on the former spouse or purported former spouse and any appointment of the former spouse or purported former spouse as executor, trustee, conservator, or guardian. If provisions are revoked solely by this section, they are revived by the testator’s remarriage to the former spouse or purported former spouse.” Thus, it sounds unlikely that you are still entitled to anything under the terms of the will executed during your marriage.

If there is a copy of the will available (i.e., not the original) there are procedures to go about having a copy probated. Although, if it is anticipated that the same people will inherit under the will ad would be the case under the intestacy statutes, then it sounds like the probate attorney may have used the appropriate discretion to determine that it does not make sense to waste estate funds looking for a will that is likely to yield the same ultimate result. As with all cases though, it depends on the specifics of your situation and you should consider consulting with an attorney for more specific advice.

Jackie Bedard February 13, 2012 at 7:50 am

Not necessarily. It very much depends on the circumstances at the time in question. If there is a need for liquidity, then selling the property might be needed to settle any debts or obligations of your husband’s estate or it may be deemed in the best interest of the beneficiaries (i.e., you and the children). If having sufficiently liquidity is a concern, then I would consider looking into life insurance and putting a will in place that clearly documents you and your husband’s wishes.

David March 6, 2012 at 9:18 am

A friend of mine recently passed. She leaves behind a husband, teenage child, both parents and of course, no will. There were lots of family items (furniture, jewelry, stuff…) that her family would like to make sure her child’s interest is protected. I guess this would be personal property, but it was given to HER (the deceased) and not THEM (the couple). What is the best course of action for her surviving parents to provide/guarantee for their grandchild.

Jackie Bedard March 6, 2012 at 9:34 am

David, it is going to depend upon a few factors, but there may not be much that can be done at this point. The distribution instructions regarding personal property are set out by statute: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_29/Article_2.pdf And generally, without a will, the surviving spouse receives all or most of the personal property. See Section 29-14(b)(1).

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