If You Don't Have a Will

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Some North Carolinians, perhaps overwhelmed by the complexities of estate planning, simply ignore the problem and hope it will go away. But, unless you develop an estate plan, it is possible that your property will be divided among surviving family members contrary to your wishes. Why? If you do not have a will, your property will be divided according to state laws. These laws are referred to as the North Carolina Intestate Succession Laws. When a person dies without making a will, he or she is considered to have died intestate, and the property is divided among the surviving heirs according to the rules of intestate distribution. Certain kinds of property, such as proceeds of insurance policies with designated beneficiaries, IRAs, and property owned jointly with survivorship rights, are not affected by these laws. How will your property be divided among surviving family members if you die without making a will in North Carolina? Property covered by North Carolina law Share of surviving spouse If there is no surviving spouse No relatives Calculating the shares of beneficiaries

Property covered by North Carolina law

State law controls distribution of both real and personal property. All personal property, wherever it is located, is subject to the North Carolina laws of distribution if the decedent was a resident of this state. Only real property which is located within North Carolina is distributed according to North Carolina law. Real property located outside the state is distributed according to the laws of intestate succession of that state. Laws relating to the distribution of property vary by state and may be different from those of North Carolina.

Share of Surviving Spouse

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Shares of surviving spouse and parent(s) of deceased spouse

Note: Remaining property includes the value of personal property in excess of $50,000
and all real property in the deceased spouse's probate estate.

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Shares of surviving spouse, children
and descendant(s) of deceased children

Note: Remaining property includes the value of personal property in excess of $30,000
and all real property in the deceased spouse's probate estate.

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Note: Remaining property includes the value of personal property in excess of $30,000
and all real property in the deceased spouse's probate estate.

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If there is no surviving spouse . . .

If you have no surviving spouse, and you die without a will, the following people inherit your property. They are listed in the order of inheritance, and if there are any members of a group who survive you, they will inherit all of your real and personal property. For example, if you have children or descendants of children who survive you, they will inherit everything. If you have no children or descendants of children who survive you, then your parents will inherit everything, and so on.

• Children or their descendants surviving
• Parent(s) surviving, no children or descendants
• Brother(s) or sister(s) surviving, no children or descendants or parent(s)
• No children or their descendants, no parents, no brothers or sisters or their descendants
  • One-half to paternal grandparents, but if not surviving, then to paternal uncles, aunts or their descendants
  • One-half to maternal grandparents, but if not surviving, then to maternal uncles, aunts or their descendants
  • In the event there is a party on one side who can inherit but none on the other side, such side shall take the whole.

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No relatives

If there are no children, parents, grandparents, brothers, sisters, aunts, uncles, and no descendants of any such persons, the estate goes to the State to be used to aid certain students who are residents of North Carolina and enrolled in public institutions of higher education in North Carolina.

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Calculating the shares of the
beneficiaries if there is no will

Some people are surprised by the rules in North Carolina for calculating the shares of the beneficiaries if there is no will. Here is an example of how shares are calculated.

The Smith family has five children, Abner, Billy, Catherine, Darryl, and Ellen. When Mother Smith dies, Billy, Catherine and Darryl survive her. Abner left one child, Fred. Ellen left four children, Gina, Howard, Isabelle, and James. Mother Smith's estate is valued at $500,000, after creditors and taxes. Billy, Catherine, and Darryl would each inherit $100,000 (1/5 of $500,000). The five grandchildren, Fred, Gina, Howard, Isabelle, and James, would each inherit $40,000 (1/5 of $200,000). (Note: the children of the three surviving children are not considered.)

Many people would have assumed that Fred would have inherited his deceased father's share of $100,000, leaving his four cousins to share their deceased mother's share of $100,000, giving them only $25,000 each. If you would prefer this result for your family, you need a will.

On the other hand, if you have a will and prefer the result in the example, which treats the grandchildren equally, you need to discuss this preference with your attorney so he or she can reflect this desire in your will.

Shares of adopted children are treated as if they are the natural children of the adoptive parent(s). Children conceived by artificial insemination are considered the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such a technique. Shares of illegitimate children are discussed in the section, Children.

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References to the North Carolina General Statutes.
29-14. Shares of surviving spouse.
29-16. Distribution among classes.
49A-1. Status of child born as a result of artificial insemination.

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Prepared by Carol A. Schwab, J.D., LL.M.,
Professor and Extension Specialist, NC State University.

This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.

Date: May 2000