What Happens if You Pass Away Without a Will in Place?

According to a recent survey, 60% of Americans do not have a last will and testament. Estate planning experts are calling this an urgent situation as we continue to deal with the coronavirus pandemic. Without a will in place, a person dies “intestate.” When someone dies intestate in North Carolina, the probate court will devise his or her property according to North Carolina's intestacy laws. The person who passed away will not control how the probate court distributes his or her property.

If you die without a will, your estate will go through the estate administration process. Legally, the probate process involves proving the validity of a will, while the estate administration process involves distributing a person's estate when that person did not have a will. When a person dies without a will, the judge overseeing the estate administration will appoint an administrator. The administrator will handle the estate administration process, involving paying the decedent’s debts, court and administrative fees, and funeral expenses. Once those steps are taken care of, the estate administrator will distribute the estate assets to the heirs at law.

The probate court judge will not be allowed to distribute the property as he or she sees fit. Instead, the judge must follow the strict guidelines found in North Carolina intestate succession laws. These laws also govern how the estate administrator must pay the deceased individual’s debts. Under North Carolina's intestacy laws, if you are survived by:

• Your parents and spouse, but no children: In this case, your surviving spouse will receive the first $50,000 of your personal property, half of all real estate, and half of the remaining personal property. Your parents will receive one-half of your remaining personal property and one-half of your estate.
• No living parents are children with a surviving spouse: In this case, your surviving spouse will obtain all of the property that you could pass under a will.
• One child and a spouse: In this case, your surviving spouse will receive the first $30,000 of your personal property. Your surviving spouse will also receive half of your real estate and the remaining personal property. Your child will receive one-half of all of the real estate and half of the remaining personal property.
• Your spouse and two or more children: In this case, your surviving spouse will receive the first $30,000 of your personal property. Your spouse will also receive one-third of the remaining personal property and one-third of all of the real estate. Your children will split the remaining two-thirds of your personal property and real estate equally.
• No surviving spouse and one or more children: In this case, the court will divide all of your real estate and personal property among your children evenly.
• No surviving spouse, children, or parents: In this case, North Carolina's intestacy laws provide more rules for how the court should distribute your assets to your remote relatives. If the court finds that you have no legal heirs, also known as blood relatives, it will pass your assets to the state of North Carolina, a process called “escheat.”

Several problems come with not writing a well and allowing the court to distribute your assets according to North Carolina's intestacy laws. For example, if you have minor children, the intestacy laws do not provide a way to appoint a guardian who will care for your children. When you create a last will and testament, you can appoint a legal guardian. Additionally, it is typically not best to leave your property to them outright if you have minor children.

Children are not allowed to own property under North Carolina law. If your child receives property according to North Carolina's intestacy laws, the court will have to appoint someone else to manage the property until your child turns 18. This is a frustrating and time-consuming process. You can avoid all of these pitfalls by creating a last will and testament.

If you have not created a will, the experienced estate planning lawyers at Arnold & Smith, PLLC, are here to help. We provide our potential clients with a free initial consultation so they can ask us questions, and we can learn more about their case. Contact our Charlotte Law Firm today to schedule your free initial consultation.