Dying Without a Will in North Carolina, Pt. 2

May 27, 2015 | Cecil Harvell

This is part two in a six-part series entitled Dying Without A Will in North Carolina. Today, I will be explaining who inherits what under the North Carolina Intestate Succession Act.

WHO INHERITS WHAT?

The most important function of the Intestate Succession Act is to provide a framework for the transfer of the decedent’s property at death. The operation of the statute is very strict. As a result, instead of the decedent’s property being devised in a very individualized way pursuant to a Will, the transfer becomes a matter of "one size fits all" as the statute applies to everyone who dies intestate with equal force, regardless of the individual’s wishes. While the Intestate Succession Act is inflexible in its application, it attempts to distribute the decedent’s property in as fair and equitable a manner as possible.

Under the Act, there is a general statutory scheme that establishes an order of priority as to who receives the decedent’s property. The order of priority is as follows: (1) spouse; (2) children; (3) parents; and (4) siblings. This order of priority makes sense to a certain extent. For instance, it is important that the spouse enjoys first priority of inheritance, since the spouse often incurs the greatest financial hardship when his or her loved one passes away. However, the spouse’s priority is not totally exclusive of the other classes above. The fact that there is a surviving spouse does not mean that the decedent’s spouse receives everything and the children and parents of the decedent receive nothing. Rather, the division of assets depends on who survives the decedent. Here are some of the different scenarios covered by the statute when the decedent is survived by the spouse:

! Spouse and one child: The spouse inherits one-half of the decedent’s real property, the first $60,000 of the decedent’s personal property, and one-half of the balance of the personal property.

! Spouse and two or more children: The spouse inherits one-third of the decedent’s real property, the first $60,000 of the decedent’s personal property, and one-third of the balance of the personal property.

! Spouse and parents only: The spouse inherits one-half of the decedent’s real property, the first $100,000 of the decedent’s personal property, and one-half of the balance of the personal property.

If the decedent is not survived by the spouse, then the next class in line inherits all of the decedent’s assets, exclusive of the other classes. For example, if the decedent is survived by only children and parents, the children take everything in equal shares and the parents inherit nothing. If there are surviving parents and siblings, but no children, then the parents take everything and the siblings take nothing.

If the decedent dies without a spouse, children, parents, or siblings, then members of the extended family, such as grandparents, aunts, and uncles, may be eligible to inherit. While this is a rather uncommon situation, it does sometimes occur. In such cases, the order of inheritance is determined by reference to the statute, which thoroughly covers all contingencies.

Please look for part three in the six-part series entitled Dying Without A Will in North Carolina- Predeceased Heirs and Distribution Among Classes in the coming days.

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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