The Consequences of Dying Without a Will in North Carolina

No one likes to think about their own mortality. We’d all rather focus on living life to the fullest rather than planning for what happens after we’re gone. But failing to plan for the inevitable through an estate plan and will can leave your loved ones with a legal and financial nightmare to deal with while grieving your loss.

If you pass away without a valid will in place, it’s known as dying “intestate”. When this happens, North Carolina law will determine how your assets are distributed, which may not align with your wishes. Your estate will go through a court process called probate which can be lengthy, costly and stressful for your family. Let’s take a closer look at what you can expect if you die without a will in North Carolina.

Who Inherits Your Assets if You Die Without a Will?

In the absence of a will stating your final wishes, North Carolina’s intestate succession laws dictate who will inherit your assets. Generally, this will be your closest living relatives in a certain order of precedence:

• If you are not married and have no children, but have living parents, your entire estate will be divided equally between your parents. If only one parent survives you, they will inherit everything.
• If you’re married with living parents but no children, your spouse gets the first $100,000 of personal property, half the remaining personal property, and half of all real estate. Your parent(s) get the other half of the remaining personal property and real estate.
• If you’re married with no surviving children or parents, your spouse inherits all property.
• If you’re married with one child, your spouse receives the first $60,000 of personal property, half the remaining personal property, and half of all real estate. Your child gets the other half of the remaining personal property and real estate.
• If you’re married with two or more children, your spouse inherits the first $60,000 of personal property, one-third of the remaining personal property, and one-third of the real estate. Your children split the remaining two-thirds of personal property and real estate equally.
• If you have children but no surviving spouse, all your property is divided evenly among your children. If a child predeceased you leaving descendants, their share passes to their descendants.
• If you have no surviving spouse, children, or parents, more remote relatives like siblings, grandparents, aunts, uncles and cousins may inherit according to NC statute.
• If no legal heirs can be found, your assets will pass or “escheat” to the state of North Carolina.

As you can see, this distribution may not reflect your final wishes, especially if you have an unmarried partner, stepchildren you haven’t legally adopted, friends you want to provide for, or charities you want to support. A will allows you to allocate your assets however you choose.

Your Family Will Likely Face Probate

Without a will, your estate will almost certainly have to go through probate court. Probate is the legal process that wraps up your financial affairs and distributes your assets to your heirs. In North Carolina, probate is overseen by the Clerk of Superior Court in the county where you lived.

The probate process involves:

• Filing a petition and death certificate with the probate court
• Giving notice to heirs named by law
• Petitioning to appoint a personal representative for your estate
• Inventorying and appraising your estate property
• Notifying and paying creditors
• Paying outstanding debts, taxes and estate expenses
• Distributing any remaining property to heirs

Depending on the size and complexity of your estate, probate can easily take 9-18 months and cost thousands in legal and court fees which come out of your estate. These costs reduce the inheritance passed on to your loved ones. A will, especially combined with a living trust, can help your family avoid probate and transfer assets more efficiently.

Minor Children May Be Subject to Guardianship Proceedings

One of the most important functions of a will is naming a guardian for your minor children. If you pass away without a will naming a guardian, the court will have to intervene and decide, based on the “best interests of the child” standard, who will take custody of and responsibility for your children.

The court will give preference to family members, but if multiple relatives petition or the family can’t agree, a judge may have to make the determination. This can be an emotionally wrenching process for everyone involved.

By contrast, a will allows you to thoughtfully consider and choose the most suitable guardian for your kids and discuss it with them in advance. You know your children best and should have control over their care if anything happens to you.

Your Assets May Not Be Used How You Envisioned

Because North Carolina’s intestacy laws make certain assumptions about the distribution of your assets, your estate may not end up being used how you would have wanted. For example:

• If you’ve been putting money into a 529 plan for a grandchild’s education but your spouse inherits your assets, there’s no guarantee that money will actually go toward tuition as intended.
• If you promised to leave a certain item or sum of money to a friend, that pledge may go unfulfilled without being specified in a will.
• If you wanted to earmark a portion of your assets for a charitable cause close to your heart, that won’t happen unless you provided for the gift in your estate plan.

A thoughtful, comprehensive will and estate plan gives you control over these deeply personal decisions. It ensures your final wishes will be clearly understood and carried out when you’re no longer here.

Don’t Leave Your Legacy to Chance – Set up an Estate Plan Today

The aftermath of your death will be hard enough on your loved ones. You can lighten that burden by taking the time now to put a clear estate plan in place, including a carefully drafted will.

Our experienced Wilmington estate planning attorneys at Johnson Legal can help you create a personalized plan that will give you peace of mind and make things easier on your family during a difficult time.

Schedule a consultation to start the process of securing your legacy today.