"When I Die, Will All of My Property Pass Through My Will or Intestacy?"

​Posted by Bill Hunter, Prism Family Law Firm, 9/24//15

There answer is: not likely.  In fact, depending on what types of assets you hold and how those assets are titled, a good portion of your assets may not pass by Probate through your Will or Intestacy.  Probate is the court-supervised legal process that involves the gathering of a deceased person’s assets, payment of debts and taxes, and the transfer of assets to the people who inherit them.  If you die with a Will, then the terms of your Will control during the probate process.  If you die without a Will, then the North Carolina Intestacy Laws (see Chapter 29 of the North Carolina General Statutes) will guide the probate process.  However, there are certain types of real and personal property that pass through the operation of law rather than by probate.  

For example, in North Carolina, if you own your house and other real estate with your spouse as tenancies by the entirety, these properties will pass directly to your spouse automatically by operation of law upon your death, rather than being subject to probate.  However, if this real estate is located in another state, is titled in only one of your names, was purchased prior to marriage, or otherwise fails to meet the standards of tenancies by the entirety established by NC law, then this property may pass through probate rather than by operation of law.  In the event that you do not have a valid Will dictating how you would like this property to be distributed, then the Intestacy Laws of NC will apply and your property will be distributed accordingly.    

Additionally, certain assets such as IRA’s, 401k’s, insurance policies, certain annuities, transfer on death accounts, and accounts owned jointly with rights of survivorship, pass through operation of law rather than by Will or Intestacy.   Upon death, these assets will pass to the named beneficiary(s) or joint owner(s) on the account.  It is important to know how these accounts are titled and held and how the beneficiaries of these accounts are set up.  If no beneficiary is named, then the property will likely pass through the probate process and may be subject to the intestacy laws if you do not have a Will.  Finally, assets that are held in revocable living trusts may not be subject to the probate process in North Carolina.  

It is very important that you are aware of how your property is titled, held, how beneficiaries are designated, and how all of these factors align with your estate plan. Having a solid estate plan in place can ensure that your assets are distributed as you wish upon your death.  

Questions?  Our 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.  704-412-1442. Family Matters.


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