Dying Without a Will in North Carolina, Pt. 1

May 26, 2015 | Cecil Harvell

One of the most important documents in an individual’s estate plan is their last will and testament. A valid will allows an individual to determine what happens to their property when they pass away. However, a common question I get from clients is what would happen if I were to die without a will? Over the next few days in a six-part series, I will shed light on this question and explain how the state of North Carolina, not you will determine who will receive your property if you die without a will.

Harvell and Collins, P.A. is always eager to counsel its clients regarding the advisability of estate planning. A good starting point for any discussion of estate planning is, of course, the execution of a Last Will and Testament. It is always sound practice to execute a valid Will during one’s lifetime. This ensures that, when a decedent passes away, the transfer of the decedent’s assets is tailored to his or her specific needs and desires. The individualized distribution that may be accomplished through a Will is very important, since the circumstances surrounding a person’s assets and beneficiaries are completely unique to that individual.

While it is much safer practice to execute a Will which clearly and unequivocally indicates the decedent’s wishes regarding his or her property, in many cases the decedent simply fails to do so. This may be for a number of reasons. In some cases, the decedent may think that he or she does not need a Will. In other cases, the decedent may have intended to execute a Will "someday," but simply never got around to it. Or, perhaps the decedent executed a written document under the impression that it was a legally valid Will, but the writing failed to conform to the requirements of the North Carolina General Statutes that govern the execution of Wills. In any case, it is important to understand what happens when a person dies without a valid Will.

When a person dies without a valid Will, that person is said to have died intestate. In North Carolina, there are statutes which govern the distribution of assets owned by an individual who dies intestate, called the Intestate Succession Act. This Act applies to all of those assets which would otherwise be devised according to the terms of a Will, had one existed. This includes most bank accounts, brokerage accounts, stocks, bonds, vehicles and other personal property. It also includes any and all real property, such as houses, condominiums, and any percentage interest in such properties. Not included in property transferred through intestacy are such items as trust assets, life insurance proceeds, funds in an IRA or 401(k) account, accounts that are paid-on-death or transfer-on-death, and property owned in joint tenancy with right of survivorship or as tenants by the entirety.

Please look for part two in the six-part series entitled Dying Without A Will in North Carolina- Who Inherits What?

 

Cecil S. Harvell
About the Author
Cecil S. Harvell is AV Martindale-Hubbell Peer Review Rated in the areas of Trusts and Estates, General Practice, and Aged and Aging. Mr. Harvell is a native of Morehead City, North Carolina and was admitted to the Georgia State Bar in 1983 and admitted to the North Carolina State Bar in 1987. Read More
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