"If I Die Without a Will, all of my Property will Automatically go to My Spouse, Right?"
Posted by Bill Hunter, Prism Family Law Firm, 5/12/15
Well, not exactly. If you die without a Will in the State of North Carolina, your assets will pass through the Intestate Succession laws of our State. These laws are codified in Chapter 29 of the North Carolina General Statutes, and address how your personal and real property will pass to your heirs in the event that you die without a Will. The portion of your estate that your spouse will receive upon your death depends on several factors, including the size of your estate and the other members of your family that have survived you. Let’s take a look at a few different scenarios to see how assets would be distributed under NC Intestacy laws.
In scenario one, let’s assume that you die without a will, and you are survived by your spouse and your only child. In this particular situation, the intestacy laws of NC dictate that your spouse would receive a one-half (1/2) undivided interest in the real property you own (land, houses, fixtures on land, etc…) plus the first $60,000 in value of net personal property (everything that is not real property, including cash, vehicles, furniture, bank accounts, etc…) and one-half (1/2) of all net personal property over $60,000 in value. Your child would receive a one-half (1/2) undivided interest in the real property, and a one-half (1/2) interest in net personal property above and beyond the first $60,000 in value. See N.C.G.S. § 29-14 a(1) and b(1).
In scenario two, let’s assume that you die without a will and are survived by your spouse and your only two children. Here, the NC intestacy laws dictate that your spouse will receive a one-third (1/3) undivided interest in the real property, plus the first $60,000 in value of net personal property and one-third (1/3) of any personal property in excess of $60,000. Your children would share the remaining two-thirds (2/3) of the real property and two-thirds (2/3) of net personal property above and beyond the first $60,000 in value. See N.C.G.S. § 29-14 a(2) and b(2).
In scenario three, let’s assume that you die without a will and without having had children, and you are survived by your spouse and both of your parents. The NC intestacy laws dictate that your spouse will take one-half (1/2) undivided interest in all real property plus the first $100,000 in value of net personal property and one-half (1/2) of any personal property in excess of $100,000 in value. Your parents would take an undivided one-half (1/2) interest in the real property plus one-half (1/2) of net personal property above and beyond the first $100,000 in value. See N.C.G.S. § 29-14 a(3) and b(3).
In all three of these scenarios, if you were to die without a Will, a good portion of your estate may go to either your children or your parents, rather than to your spouse. If this is not your intention, then it is very important that you have a properly drafted and executed Will to dictate your wishes. Having a Will is not the only thing that will have an impact on how your property is distributed. Knowing how your real property is held and titled, and who the beneficiaries are on retirement accounts, insurance policies, and other property that will pass outside Probate and Intestacy, is also important.
Please note that this Blog intends to discuss NC Intestacy law and does not address potential Spousal Allowance or Elective Share implications.
Questions? Prism's estate planning attorney serves clients in Mecklenburg and Cabarrus counties, including the cities of Charlotte, Huntersville, Mooresville, Davidson, Matthews, and Mint Hill, and Harrisburg, and is versed on the law and procedure involved in a wide range of Estate Planning matters. Family Matters. 704-412-1442.
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