When you die without a will, the laws of intestate succession take over and dictate who will inherit your estate. This legal process can be complex and unpredictable, often leaving loved ones with an inheritance far different from your expectations. Find out about North Carolina’s intestate law and how these statutes affect the distribution of your assets. We’ll also look at ways to prevent the intestacy laws from taking over and dictating who inherits your property!

Most people understand that having some sort of an estate plan is a good thing. However, many of us do not take the first steps to get that estate plan in place.

We may feel confused about why writing a will is crucial. We may also wonder what the benefits of a trust are. Often, we do not understand the nuances between a will and a trust – or dying without either.

Intestate Succession: What is an Heir at Law?

Without a will, the probate court must step in to determine how to divide your estate.

The probate court judge appoints a personal representative who inventories all your possessions and pays off any debts and creditors. Then the court will rule how to distribute the leftover assets according to intestate law.

If you die intestate with two children and no spouse, your accounts and property will go through probate, and all the world will know what you owned, what you owed, and who got what. Your mortgage, car loan, and credit card companies will all seek payment on balances you owed at the time of your death.

Keep in mind that since your estate is public and alerts valid creditors, it is not uncommon for predators (fake creditors) to come forth and make demands for payment – even if your estate owes them nothing.

After creditors receive payment, intestate law decides which heirs at law inherit your assets.

Inheritance Laws for Your Intestate Estate

So, if you have no spouse and only two children with no will, state law will mandate divvying up proceeds equally.

Your older child will get their share immediately if they have attained adulthood. But, the court will appoint a guardian to manage the money for your minor child until that child becomes an adult.  Shockingly, that guardian can charge a lot of money for their services and be a total stranger.

If you die without a valid will, the court, not you, will decide who raises your minor child.

Real Estate Property Intestate Statutes in North Carolina

Determining heirs and their legal right to inherit happens with a convoluted intestate Statute in North Carolina Law.

If you have no spouse and only children who will inherit your assets, intestate law may make some sense. However, if you have a spouse, children, and parents, it can become complicated quickly!

The share of the surviving spouse in the real property of a decedent’s estate does not work as you might expect. Generally speaking, surviving spouses usually don’t receive much more than children or parents.

As an example, for inheriting real estate, if the decedent is survived by:

• Only one child or by any lineal descendant of only one deceased child, the spouse receives a one-half undivided interest in real property
• Two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children, the spouse receives one-third undivided interest in the real property
• No children, but by one or more parents, the spouse receives one-half undivided interest in the real property
• No children or any lineal descendants or by a parent, the spouse inherits all the real property.

You can see how the legal standing of a spouse is not what you might expect. Those who inherit property when someone dies intestate inherit from the law differently than you might have written in a will. The intestate laws make them legally entitled because of their relation to you as a family member.

In many cases, a spouse, living children, or descendants of living biological children (direct descendant), and parents of the deceased are the first legal heirs entitled to inherit assets and receive property or other assets.

It’s hard to know precisely how the court will use intestate law when a person dies without a will. When a person dies intestate, the court may or may not give inheritance rights to:

• Grandparents
• Siblings
• Aunts and uncles
• Nieces and nephews
• Other relatives

The bottom line? Someone who died intestate allows state law and the court to make all the decisions – regardless of their intent. Dying intestate means a person intentionally left their spouse and the next generation at the mercy of a court system that often cares less about heirs than about an outdated legal statute.

The Probate Process For a Deceased Person With a Will

If you die with a valid will, your accounts and property will still go through probate. However, after your personal representative pays creditors, the remaining funds and property will go to whom you have named in your will.

• If you want to leave money to your children and name a guardian for the minor, the court will usually abide by your wishes.
• The same holds true if you specified that you wanted to give money to a charity, your Aunt Betty, or your neighbor.
• Keep in mind that predatory creditors are still an issue as your estate is publicly available! Even with a will, probate is still a public process.

While a court oversees the process, having a will allows you to tell the court exactly how you want affairs handled. However, public probate directed by a court can be costly and last for years! Probate is an incredibly arduous process that can last longer depending on the relatives and creditors making claims on your estate. It can also be expensive for your estate, which means less inheritance for your heirs.

If someone contests your will or ties the court up in needless drama, probate can become a nightmare for your named heirs.

Avoid Probate Court Entirely

If you have created a trust, you have taken control of your estate plan, accounts, and property. Accounts and property owned by the trust are not subject to the probate process. One of the most important benefits of a trust is that the details and process of transferring accounts and property to the intended individuals are private.

In the trust, you name a trusted individual (trustee) to manage your affairs. In the trust documents, you can give specific instructions on how your trustee will disperse your assets. Your trustee will not need to face a judge to settle your entire estate. Instead, they will act as your estate’s representative to all of your heirs.

It’s crucial to fund a trust in order to bypass probate properly. Funding means that you change the ownership of your accounts and property from your name individually to the name of your trust. Think of your trust as a bushel basket. You must put the apples into the basket just like you must put your accounts and property into the trust for either to have real value.

However, working with your estate planning attorney to create a “pour-over will” allows any assets you leave out to pour into your trust at your passing. Your legal will also allows you to name guardians for any minor children.

The bottom line? A trust allows you to maintain control of your accounts and property through your chosen trustee, avoid probate, and leave specific instructions so that your children are taken care of.

Creating a Comprehensive Estate Plan for a Secure Future

At Vail Gardner Law, we put together estate plans designed for individuals and their families. Not every family needs the same plan. We ensure that your estate plan works for you and your loved ones, whether a will, trust, or both.

Get in touch and find out how our experienced estate planning attorneys can help you prepare for your future and that of your loved ones.