With the ongoing Coronavirus pandemic, more families than ever are looking to ensure that their affairs are in order in case a family member were to pass away. And, it’s important to plan out your will and other estate planning pieces when you can go through it without being rushed. It’s an important decision – the contents of the will protect your family’s finances, properties, and even what happens to your minor children if both parents pass away.
Whether you’re looking at creating a new estate plan, or updating an existing one, the team at McCollum Law is here and ready to help.
What Happens If You Die Without A Will?
Intestacy in North Carolina is invoked when a person dies without a will. When someone dies intestate, any real or personal property they own goes to their surviving spouse (if there is one), and also may depend on whether there are any surviving children or parents.
If the intestate person does not have a surviving spouse, children, or parents, the law says that the shares of the decedent’s estate go to the siblings and other relatives – including grandparents and others. The closer the familial tie to the decedent, the higher priority they will be given when it comes to inheriting the estate.
If you want any control over how your assets are distributed, it’s critical to have one of our North Carolina estate planning attorneys create, or update, your will and other components of your estate plan.
How A Will Can Protect Your Spouse
Many people assume, incorrectly, that all assets will be passed to a surviving spouse if the other partner dies, but unfortunately, this isn’t always the case. Based on the intestate laws in North Carolina, if you die intestate with a spouse, their share will depend on if you have living parents or descendants, which include children, grandchildren and great-grandchildren.
For example, if you die with a spouse and parents but no children, your spouse will inherit half of intestate real estate and the first $100,000 of personal property. Anything beyond that will be split 50/50 between your spouse and parents, and your parents would also get 50% of intestate real estate.
As you can see, there is a lot of value to having a will and structuring it properly with an estate planning attorney who can make sure it’s distributed according to your wishes.
How A Will Can Protect Your Children
In addition to protecting your spouse with a will, you can also help shape your childrens’ future with proper estate planning. Depending on their age, you may want to set aside some money for college, provide them with certain items from your estate, or even pass along real estate to ensure it stays in the family.
Similar to how funds and property are split up in the above example, children, grandchildren, and great-grandchildren factor into how your estate is split up without a will.
Real Estate Is A Non-Probate Asset
Here in North Carolina, real estate is considered a non-probate asset, which means that it passes outside the estate of the owner. Even considering this, the will still controls the final destination of the real estate.
There are certain complexities with real estate to consider as well, such as whether you hold real estate in your personal name or through a limited liability company (LLC). In North Carolina, LLC membership interests are treated as personal property in the owner’s estate and are bound under the will’s power or intestacy laws.
What You Need To Create A Will
It’s not difficult to create a will in North Carolina, but there are certain requirements that have to be met.
- Capacity – You must be of a sound mind.
- Age – You must be 18 years old or over.
- Signature – The will must be signed by you with intent to sign, or by another person under your direction and presence.
- Witnesses – At least two witnesses must sign a will in North Carolina for it to be valid. Although each witness must sign in the presence of the testator, they don’t have to do it at the same time or in the presence of each other.
- Writing – Your will can be written or oral, although there are restrictions to a nuncupative (oral) will.
- Beneficiaries – A North Carolina will may pass property to any beneficiary. A beneficiary may serve as a witness, but unless there are also two disinterested witnesses to the will, the provisions benefiting the beneficiary and/or the beneficiary’s spouse are void. Alternately, a beneficiary under a holographic will may testify as to the validity of the will without voiding the gift to him or her.
Exceptions
Although most property can be distributed via your will, there are certain exceptions such as property owned in joint tenancy with survivorship rights and beneficiaries to a life insurance policy. There are also exceptions where a surviving spouse is entitled to part of the deceased spouse’s estate if they make a claim within the lawful time period, even if they were left off the will.
Contact Our North Carolina Estate Planning Attorneys
Although creating a simple will can be straightforward, most people have situations that could benefit from an experienced estate planning lawyer on their side to help them structure their will and other estate planning items in a way that best benefits them and their family.
We’re here and ready to help – contact McCollum Law today at 919-861-4120 to set up a consultation to create or update your estate plan.