First off, you might be wondering, “What is a Last Will and Testament?” A Last Will and Testament, otherwise known as a Will or Last Will, is:
The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death.
When a person dies without a valid Will they die intestate. When someone dies intestate in North Carolina, their property passes to their heirs according to intestate succession. North Carolina’s laws regarding intestate succession are generally contained within Chapter 29 of the North Carolina General Statutes. Beware, surviving spouses have rights that are contained elsewhere within the General Statutes. However, this post is limited to Chapter 29.
Chapter 29 first provides the share allocated to a surviving spouse. Chapter 29 divides the spouse's share in two parts, their share in real property and their share in personal property.
(a) Real Property. – The share of the surviving spouse in the real property is:
(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, a one-half undivided interest in the real property;
(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children, a one-third undivided interest in the real property;
(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by one or more parents, a one-half undivided interest in the real property;
(4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, or by a parent, all the real property.
(b) The share of the surviving spouse in the personal property is:
(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, and the net personal property does not exceed sixty thousand dollars ($60,000) in value, all of the personal property; if the net personal property exceeds sixty thousand dollars ($60,000) in value, the sum of sixty thousand dollars ($60,000) plus one half of the balance of the personal property;
(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, and the net personal property does not exceed sixty thousand dollars ($60,000) in value, all of the personal property; if the net personal property exceeds sixty thousand dollars ($60,000) in value, the sum of sixty thousand dollars ($60,000) plus one third of the balance of the personal property; (3) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, but is survived by one or more parents, and the net personal property does not exceed one hundred thousand dollars ($100,000) in value, all of the personal property; if the net personal property exceeds one hundred thousand dollars ($100,000) in value, the sum of one hundred thousand dollars ($100,000) plus one half of the balance of the personal property;
(4) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, all of the personal property.
As for the shares of a decedent other than the surviving spouse, Chapter 29 provides:
Those persons surviving the intestate, other than the surviving spouse, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, as follows:
(1) If the intestate is survived by only one child or by only one lineal descendant of only one deceased child, that person shall take the entire net estate or share, but if the intestate is survived by two or more lineal descendants of only one deceased child, they shall take as provided in G.S. 29-16; or
(2) If the intestate is survived by two or more children or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, they shall take as provided in G.S. 29-16; or
(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share; or
(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29-16; or
(5) If there is no one entitled to take under the preceding subdivisions of this section or under G.S. 29-14,
a. The paternal grandparents shall take one half of the net estate in equal shares, or, if either is dead, the survivor shall take the entire one half of the net estate, and if neither paternal grandparent survives, then the paternal uncles and aunts of the intestate and the lineal descendants of deceased paternal uncles and aunts shall take said one half as provided in G.S. 29-16; and
b. The maternal grandparents shall take the other one half in equal shares, or if either is dead, the survivor shall take the entire one half of the net estate, and if neither maternal grandparent survives, then the maternal uncles and aunts of the intestate and the lineal descendants of deceased maternal uncles and aunts shall take one half as provided in G.S. 29-16; but
c. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the paternal side, then those of the maternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole; or
d. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the maternal side, then those on the paternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole.
N.C.G.S. § 29-16 provides for a per capita distribution rather than a per stirpes distribution.
Other things to consider are how a decedent titles his property. For instance, if a decedent owned land as joint tenants with right of survivorship with another, the co-tenant would take title to the land rather that the decedent’s interest in the land passing through intestate succession. A decedent can also make their bank accounts Transferable on Death to another so that the money passes automatically to another at death. A decedent can also name beneficiaries on their retirement accounts and life insurance policies to avoid the application of North Carolina's Intestate Succession Laws.
Hypothetical
John and Jane are married. They have two minor children. John is a banker. Jane was a teacher but no longer works after having the two children. They are intestate. They own a house together as husband and wife, otherwise known as a tenancy by the entirety. John has a bank account in his own name with $100,000 dollars in it. John also has a retirement account with $50,000 in stocks and bonds. He has not named a beneficiary on that account. Unfortunately, John passes away unexpectedly.
What will happen? First, the house is titled as husband and wife. It is entireties property and it will be Jane’s automatically at John’s passing.
According to Chapter 29, since John has two children, Jane is entitled to the first $60,000 of the personal property, plus 1/3 of the remainder. Jane will be entitled to $90,000 of the personal property.
The children will split the remainder of the personal property.
Hypothetical
Change the first hypothetical so that the house was in John’s name only.
What will happen with the house? Jane is entitled to 1/3 of the house. The children split the remainder. But, surviving spouses do have other rights.
Hypothetical
John is single with no kids. His parents are alive and he has one brother. He is intestate. If he passes, according to the Chapter 29, his parents will split his property.
Hypothetical
John and Jane are married. John owns a house. They have no kids but both of John’s parents are alive. If John dies, according to Chapter 29, Jane will get ½ of the house and his parents will split the other ½.
There are other benefits of being testate. Testate is when a person dies with a Last Will and Testament. One benefit is being able to name an executor. An executor is someone named in a Will to carry out the provisions in the Will. The executor will be responsible for collecting the decedent's personal property, paying a decedent’s just debts, and distributing the decedent’s personal property to the heirs. The executor will also account to the Court.
A testator, a person that makes a Will, can also waive the bond requirement. This is important because it will save your heirs money.
The purpose of this post is to point out the importance of creating a Will to avoid the consequences of intestate succession.
Disclaimer:
The information contained in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from Kurt B. Fryar, Attorney at Law, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient's state, country or other appropriate licensing jurisdiction.