What Happens to My Property if I Don't Have a Will?

A properly executed estate plan is a contingency recommended for most adults. Regardless of your age or the size of your estate, if you do not leave instructions of what assets you want to go where in the event that you become incapacitated or decease, the intestate laws of your state will kick in to handle the matter. Intestate laws provide the default distribution of a person’s property in the event that they die without a will. These defaults vary by state, but frequently stand in contrast to what people actually desire for their estate plan –hence the reason that an estate plan is so important in the first place.

Sometimes things happen before a person has the opportunity to get together a will or the other documents included in a typical estate plan. If this happens, it is important to be aware of the intestacy laws of your state and to speak with an estate law attorney.

Intestacy laws only distribute a person’s “probate estate,” or the deceased’s assets that could have been controlled by a will if the person had executed one: 1) “real property,” or real estate and buildings, and 2) personal property. Assets not included in the probate estate include life insurance, any rights in survivorship property, and property that the deceased held in trust.

A person’s surviving spouse, if they have one, receives precedent over all other relatives in North Carolina with regards to default inheritance rights. A surviving spouse inherits before any other class of relatives, and receives a larger default percentage of inheritance.

The surviving spouse intestacy laws in North Carolina include the following:

• If the deceased has no surviving biological descendants or parents, the surviving spouse takes the entire estate.

• If the deceased is survived by their spouse and only one child or parent, and the deceased’s personal property does not exceed $60,000, then the spouse takes half of the deceased’s real property (land and buildings) and all of their personal property. The surviving child or parent receives the remaining half of the deceased’s real property.

  • If the deceased is survived by their spouse and only one child or parent and the deceased’s personal property does exceed $60,000, then the spouse takes the first $60,000 in value of the deceased’s personal property, in addition to half of the remaining value of the personal property, and half of the deceased’s real property. The surviving child or parent then receives the remaining half of the real property and what remains of the personal property.

Other relatives’ shares in North Carolina are determined by whether or not the deceased has a surviving spouse, the relative’s degree of relation to the deceased, and how many other relatives in that same class (or their heirs) are still living.

If the deceased was unmarried or their spouse is not surviving:

• And if the deceased is survived by only one child, the child takes the entire net estate.

• If the deceased is survived by two or more children, or by one child and a lineal descendant of a deceased child, those parties will inherit according to N.C.G.S. 29-16, laid out below.

• If the deceased is not survived by any children or lineal descendants of a deceased child, the estate passes to the deceased’s parents, if they are still living.

  • If the deceased’s parents are not still living, the estate passes to the deceased’s siblings and the lineal descendants of any deceased siblings.

  • If none of the parties described above are present, the estate passes to any of the deceased’s surviving grandparents, if any. The paternal or maternal grandparents’ share passes to the aunts and uncles on the relevant side if both are deceased.

  • If there are no lineal relatives left on the deceased’s paternal side, their portion of the estate goes to the relatives entitled to take on the maternal side, and vice versa.

N.C.G.S. 29-16 addresses the amount of estate that the classes of heirs discussed above receive. It includes calculations for the following:

• Children: To determine the inherited share of each surviving child, divide the estate by the number of surviving children plus the number of deceased children who have surviving lineal descendants of their own.

  • For example, suppose a man passes away without a will, leaving behind $100,000 worth of personal property; $100,000 in real property; a wife; and 10 grown children. Because the man was married and the value of his personal property is greater than $60,000 (see “The surviving spouse’s share” section above),the first $60,000 of his personal property would go to his wife, in addition to half of the remaining personal property and half of his real property.

    • This means the wife would inherit $60,000 worth of personal property, in addition to half of the remaining $40,000 of personal property, for a total of $80,000 worth of the deceased’s personal property. The wife would also receive $50,000, or half, of the real property.

    • The remaining $20,000 of the man’s real property would be distributed amongst his 10 children, as would the remaining $50,000 of his real property.

      • Each child would then receive $2,000 in real property ($20,000/10) and $5,000 in real property ($50,000/10).

• Grandchildren: Property that is not left to the surviving spouse and children next goes to the deceased’s surviving grandchildren. The amount calculated in the same manner as for the descendant’s children described above.

As demonstrated here, intestacy laws are complex, and the probate process of distributing a person’s estate whether they had a will or not can be a long and arduous process. An experienced estate law attorney can help you and your family through what is already a difficult time. Arnold & Smith, PLLC is a civil and criminal defense litigation firm in Charlotte, NC. We use a client-centered approach to help achieve the best solutions for all of our clients. Contact us today for a consultation with one of our estate law attorneys.