Despite the benefits, far too many people in North Carolina don’t have a will. In many cases this is because they don’t think they need one, that wills are only useful if you have a certain amount of money, for people with larger families, or any number of other reasons.
When somebody dies without a will, it’s called dying “intestate,” and when this happens, state law determines what happens to the person’s possessions. While it’s good to know what will happen according to state law, this is almost never what you would want to happen in your specific situation, therefore the need for a will.
If you’re in a situation where a family member has died intestate in North Carolina, what happens?
What Does North Carolina Law Say About Intestate Succession?
Like other states, North Carolina law determines how property is divided if someone dies intestate. Not all property is subject to the law. For example, if you own a house jointly with your spouse, then they will get the house after your death without any court process. It also doesn’t include things like retirement accounts, payable-on-death accounts, etc. The law only covers property that you could include in a will if you had one, and not anything that has specific survivorship rights attached to it.
The law divides property as follows:
- If you have no living spouse or children, and your parents are still alive, your estate will be divided between your parents. If you only have one living parent, they get all of it.
- If you have a living spouse and parents, but no children, your spouse receives the first $50,000, and the rest is split between your spouse and parent(s).
- If you have a living spouse, but no children or living parents, your spouse gets everything.
- If you have a living spouse and one child, your spouse receives the first $30,000, one half of remaining personal property and one half of real estate. Your child receives the other half of personal property and real estate. Descendants of children are also included.
- If you have a living spouse and two or more children, your spouse gets the first $30,000, one third of remaining personal property and one third of real estate. Your children split the rest. Descendants of children are also included.
- If you have no living spouse, and one or more children, everything is divided equally amongst the children and/or their descendants.
- If you have no living spouse, children or parents, but have living siblings, everything is divided equally amongst your siblings.
- If you have none of those there are additional rules dividing property amongst more remote relatives. If you have no living relatives at all, your assets go to the State.
To some people, this might actually be perfectly acceptable. But, for others, it might present complex issues. What if you have stepchildren? Stepchildren and foster children get nothing. What if you aren’t married and haven’t talked to your parents in years and don’t want them to get anything? What if you are divorced, but are still friends and want to make a provision for your ex in your will?
Intestate Succession and Family Squabbles
Another potential example of an issue is if you have three children and might want to will them everything – but, if you don’t leave a will, there’s no record of what you wanted to go to who. Let’s say you have a nice classic car, which both your children want. Without a will, who gets it?
This is likely to cause conflict at a time of great stress for your family. Even if you discuss it with them, unless it’s in writing in a will, the conflict can still bubble up to the surface. And the likely solution is for the car to be sold and the proceeds split, and they might even end up bidding against each other in an auction.
Needless to say, this is not something you want to leave your family to deal with.
The Potential Loss to Your Family
Without a will, the estate court has no idea who should get what. This tends to be settled in the most straightforward manner: Sell everything and split the proceeds.
This means that things of great value to your family, such as heirlooms, may be sold and may or may not be recovered. Your heirs might have to buy things they should have inherited.
By writing a will, you can rule that certain things may not be sold by your heirs, but must be kept. You can also rule that certain things should be sold, if there is a good reason to do so. This might be an issue if you ended up behind on your mortgage payments before your death, which is not uncommon with extended illness. You can specify what should be sold to pay the debt so that your spouse does not end up losing the house.
Not everyone wants to, or can, get married. Intestate succession leaves unmarried partners out in the cold. This often affects second and subsequent relationships entered into late in life; many older couples elect not to get married.
In some cases this is because it might affect social security or pension benefits (for example, if somebody is reliant on a pension from their deceased or divorced spouse they often lose that if they remarry before a certain age). Getting married can have a significant negative effect on disability benefits (as in, you can easily lose them as your spouse is now supposed to support you, whether they can or not). And some couples simply don’t see the point of getting married if they are too old to have more children.
If you want to leave property and personal effects to your partner without getting married, you will need to write a will.
Writing a will also allows you to leave property to people to whom you are not related, such as a long-time friend, to charities and trusts, etc.
Our North Carolina Estate Planning Attorneys Can Help
Unless you have almost no property and/or are completely happy with the rules around intestate succession in North Carolina, you should make a will – which means, almost everyone should have one.
At McCollum Law, we help individuals and families of all sizes plan what they want to happen to their estate after their passing. Give us a call today at 919-861-4120 or fill out our contact form to get started!