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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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?
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.
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.
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
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.