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Can an Out-of-State Will Bequeath Property Located in NC?

If a person executes a valid will, that legal instrument is supposed to protect the deceased’s wishes regarding the distribution of their property after their death. But what happens when a person from another state attempts to convey property located in North Carolina in their will? Estates, wills and trusts are complicated areas of the law that are largely state-specific, and there are some important issues to keep in mind if you find yourself facing this situation.

The Probate Process

First, it is necessary to understand the process involved after a person with a will dies. Probate is both the process of proving a will’s validity to the court and the court-supervised legal process involved in carrying out a person’s wishes contained in the will.

In North Carolina, the correct location, or venue, for the probate of a will is the county in North Carolina in which the deceased was living at the time of his or her death. If they were not domiciled in North Carolina when they died, the will can be probated in any county in which the deceased’s property is located. However, if the person was living out of state and their will is being probated in that state, issues with North Carolina estate law can arise if the will attempts to convey “real property” that is located in North Carolina.

Conveying Real Property vs. Personal Property

Real property consists of land/real estate, buildings, and other structures attached to the land. Meanwhile, personal property consists of the remainder of that person’s assets, such as their car, bank accounts and retirement accounts. Assets such as life insurance and property held by the deceased in trust are not included in the probate estate.

If a will being probated in another state attempts to convey personal property that is located in North Carolina, the will only has to conform to the requirements of the probate state. An ancillary proceeding in North Carolina may be required in order for the property’s title to pass to the new owner, but an estate law attorney can help you with this procedure.

However, if a will being probated in another state attempts to convey real property that is located in North Carolina, the will is required to adhere to certain formalities at the time of execution. You may find more information about what is required of a valid North Carolina will in the Wills, Trusts & Estates section of our website.

When Intestacy Laws Apply

Generally, if a will does not satisfy North Carolina law or the execution formalities, attempts to distribute real property located in this state may be voided. This means, as to the property located in North Carolina, it is as if the person died without creating a will at all. North Carolina has “intestacy” laws which govern the default distribution of property in the event that a person dies without a will.

Our intestacy laws, for example, give preference to a deceased person’s surviving spouse, if there is one. The surviving spouse’s share depends on the remaining heirs of the decedent. If the deceased spouse has no living children or parents, the surviving spouse is entitled to the entire estate. However, if the decedent is survived by their spouse and one descendant within a certain degree, the surviving spouse is entitled to receive the first $30,000 of the decedent’s personal property and one-half of the remaining property, while the descendant is entitled to the other remaining half. If there are multiple surviving descendant’s, the surviving spouses share in the remaining one-half of the property is reduced to one-third. A surviving spouses share is also impacted by the living parents of the decedent.

Intestacy laws can be complicated and may stand in contrast to how a person actually desires for their assets to be distributed in the event of their death—this is why attorneys recommend that most adults with dependents have an estate plan in place, regardless of their age or the size of their estate.

If you are facing probating a will from another state involving property located in North Carolina, it may be important to speak with a North Carolina estate law attorney as soon as possible. The probate process, even when it only involves North Carolina law and property, can be a lengthy and arduous process. Arnold & Smith, PLLC is a civil and criminal defense litigation firm in Charlotte, Mooresville, and Monroe, North Carolina that handles both estate and family law matters. Our estate law attorneys understand the difficult and sensitive nature that these cases typically involve and are here to handle these matters for you and your family during this trying time. Contact us today for a consultation with one of our estate law attorneys.