Problems With Intestacy

Jennifer Mercer
Paralegal, Probate and Estate Administration Team Lead

In the previous post, What Happens If Someone Dies Without A Will in North Carolina?, I discussed North Carolina intestacy law and who would receive your property if you were to die without a will.  The following are some of the many reasons why the intestacy distribution scheme may not fit your needs:

1.If you have minor children, the intestacy laws do not provide a means of appointing a guardian to care for your children.

When it comes to your children, I’m sure you take precautions as to who cares for them.  You ask around for recommendations of a reputable babysitter.  You research their school districts, teachers, coaches, etc.  So why would you want to leave it to the courts to decide who cares for your children after your death?

2.  If you have minor children, it is not recommended that you leave property to your children outright.

Under North Carolina law, children are not allowed to own property.  As such, if property passes to a child directly, either under a will or under the intestacy laws, the courts will appoint someone to manage the property on behalf of your child.  This process can be time consuming, frustrating and costly.  The person appointed must file an annual accounting each year reporting (to the penny) all money into and out of the children’s accounts.  While this might seem like a reasonable protection, the result is that it often binds the hands of a surviving spouse or guardian that is caring for the children, for example, making it difficult to handle such day to day responsibilities such as paying mortgage, utilities, educational expenses, etc.  It is instead recommended that you include a trust for minors in your will or have a separate trust agreement to provide for the management of the children’s property.  Such a document can be drafted to protect your children while still allowing flexibility to the surviving spouse or guardian.

3. Problems can arise in blended families.

In families with step-parents or step-children, certain family members that you do or do not want to be included may not receive the treatment you would like.  For example, if you are a step-parent that would like some of your property to pass to your step-children but you have not legally adopted the step-children, the step-children will not receive anything via intestacy.

4. Couples without children typically want their spouse to receive everything.

In my experience, most married clients without children want to leave everything to their spouse.  However, under the intestacy laws, their parents would actually receive a substantial share of their possessions.

5.  Unmarried persons may not want to leave everything to their parents.

Again, in many instances, unmarried persons would instead prefer to leave assets to their siblings, nieces and nephews, or a charity.

6.  The intestacy distribution scheme does not include charitable gifts.

Many clients, even if it is only a small amount, like to leave a gift to charity.  The intestacy distribution scheme does not allow for such.

7.  Heirlooms and sentimental possessions may be sold.

Often people have special family heirlooms, family vacation homes or other sentimental possessions, that they want to ensure remain in the family and are not sold upon their death.  If the property passes through intestacy, there is a greater likelihood that such property may be sold.  Having a valid will can ensure property treatment of such sentimental property.

8.  Equal may not be “fair.”

The intestacy statutes lean towards equal division of property to those within the same generation.   For example, equal division among parents if you property passes to your parents, or equal division among children if your property passes to your children.  The reality, for many, is that an equal distribution may not be a “fair” distribution.  For example, parents with adult children often use wills to leave unequal amounts to their children due to particular circumstances.  The parents may choose an unequal distribution because during lifetime they spent disproportionally more money putting one child through graduate school.  Another common reason is that one child may have stayed close to home and taken on the caretaker role as the parents aged.

9.  Special circumstances will not be factored in.

There are many, many reasons why intestacy will not fit most people’s wishes.  Intestacy statutes are drafted with a “one size fits all” mindset, and just like one size fits all T-shirts, the intestacy laws often end up fitting very few people properly.  The laws cannot take into account each person’s particular circumstances, so special situations will not be adequately resolved under the intestacy laws.  Such special circumstances might include the need to provide for a special needs child, a pet, a business ownership interest, a close friend, charity, and so on.

13 Comments
My mother passed in 2010 and her husband passed in 2020 due to COVID-19. No will exists for mom or stepfather. I am the administrator. There are 6 siblings (1 passed) and stepfather had no children. Does his mother sign off on the deed so we can sell the property?
by Patricia Towns August 10, 2020 at 07:31 PM
My uncle recently passed away. He was married and most of their assets are in joint names. However, he has a big rig and motorcycle that are in his name only. Complication is he has a child, previous marriage, and they have been estranged for over 15 years, she has even said her father was dead to her. Is she still entitled to 1/2 of the 2 items in only my uncles name?
by Michelle May 3, 2020 at 02:53 PM
My brother died without a will and is survived by my mother, me and my siblings. According to the NC laws of succession, everything would go to my mom, who is on Medicaid and Medicare, and per my research, she stands to lose her benefits since her inheritance would be more than $2k. Because of this, we decided not to close the estate. I can’t get a straight answer from anybody about whether NC eventually settles UNSETTLED estates and if it does this, how long after somebody’s death does it do this. Does anybody know? My mom is very sick and we can’t afford for her to lose her benefits if the state settles the estate after a certain time. CAN ANYBODY CLARIFY IF WE’RE IN DANGER OF THE STATE SETTLING THR ESTATE AND PASSING EVERYTHING TO HER? HELP!
by Mee Moua March 27, 2020 at 12:34 PM
My husband's step mother passed away a month ago 2/2020 and his father had passed in 2016. His step mother's only blood child has also passed in 2017. He is now being contacted by Estate information services. The estate of his deceased stepmother is in North Carolina. He also lives in North Carolina. He stepmother does have living blood grandchildren and sibling. My question is, is my husband entitled to be an heir of the estate? Could you explain how and who the heirs of the estate would be. There also is no will. Thanks in advance.
by April Armstrong March 14, 2020 at 08:21 PM
My ex-husband of 24 years 11 months died almost 3 years ago. We have two adult children. He had just remarried two years prior to his death. M ex-husband for all his life after kids were born let it be known to everyone that if anything happened to him the kids would be set. He said this to several people, including our son, the week and the day before he died. My ex-husband had always told me that he would never change his beneficiaries to his policies... our two children. However upon his death we learned that there were no longer any names listed as beneficiaries on his policies. My children were told that on this case all benefits go to his spouse ( of only two years). She got everything. I didn't know about this law until recently. Would my children have a case and it's it too late?
by Annette Thornhill March 2, 2020 at 11:15 AM
my grandmother passed and had no will my father and aunt are surviving children, my grandmother has land but my aunt does not want anything to do with land but refuse to sign renounce form or bond out. what should my father do
by dana crockett February 17, 2020 at 06:36 PM
My late husband's sister died in October 2018. He was her only living relative and was listed as her legal representative. In November of 2018, my husband had a fall which landed him in shock trauma then the hospital until he unexpectantly passed away August 1, 2019. Prior to my husband's death, he had me handling all of his affairs including his finalizing his sister's (calling her bank, contacting the life ins. co, making the funeral arrangements, following up with the funeral home, etc.). Prior to my husband's death, we did not set up for me to be his legal personal rep because we were expecting him to come home from the hospital. He died unexpectedly from asphyxiating on his vomit and was not found by the nurse until 30 minutes later. By then he was brain dead. Long story short, how do I go about claiming and closing out sister-in-law's accounts since I am the only remaining relative? Please advise. Thank you!
by wendy phillips February 14, 2020 at 03:41 PM
My grandmother passed away in NC I stay in sc my father predeceased her once she passed I received a notice of probate for her estate because she had no will.I never received my father share of his moms estate I was was told it was because I was considered an illegitimate child and my being legitimate in sc didn't mean I could inherit in nc this year 2019 I was finally I guess another story saying I didn't inherit my fathers share of his moms estate because I didn't write a letter to the executor of her estate so he distributed the money to her surviving adult children along with my dad share.Was I manipulated up until present time and I will not be able to recover from this hurt and embarrassment for a while😥
by Precious November 2, 2019 at 08:30 PM
My husband passed away recently. We did not have a will. We owned a small paving company. I had half stock in the company. My step daughter will inherit half of his stock. Can I give her half of the stock rahter than having to pay her.?
by Joan Koone April 30, 2019 at 06:46 AM
Mary, my sympathies to you and your family. Based on the situation that you described, it sounds as if the uncle is probably the best person to step forward. The order of priority for selecting the personal representative (i.e., the person that will step up to handle probate), is set out in NCGS Section 28A, Article 4: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_28A/Article_4.pdf
by Jackie Bedard February 4, 2019 at 12:22 PM
My counsin recently died intestate. She is divorced, has no children, and her parents are deceased. There is one surviving uncle related by blood (her mother’s brother). There are two aunts related by marriage. There are many counsins who are descendants of her aunts and uncles? We’re trying to decide who is most appropriate to “step up” to handle probate. In degrees of kinship, would the blood related uncle be the correct person?
by Mary February 4, 2019 at 12:22 PM
Angela, I’m afraid there are a lot of moving parts to your question. The rights of heirs depend upon various factors such as whether property was owned individually or as joint owners with rights of survivorship. If your uncle has a claim for part of your grandfather’s estate, then they may not be able to complete the probate of your uncle’s estate until your grandfather’s probate is complete. I would strongly recommend that your family consult with a probate attorney in your area to obtain more specific advice.
by Jackie Bedard February 4, 2019 at 12:21 PM
I reside in Lee Co. We recently lost our uncle. He has three daughters that he leaves behind. My question is that he was an heir to an estate that has not yet been settled. My grandfather died without a will as many people of his generation did. My grandmother is now fearful that the girls may try to force settlement of the estate. My grandmother understands that she is entitled to a portion of the estate and land. This is her home where she has lived for 60+ years and she does not want people living on the 100+ acre farm with her that she does not know and does not want to give up anything that she and my grandfather worked hard to accumulate. She understands that when she passes it will be divided and she is okay with that. She just doesnt want it to happen before she passes. How does this work? What is necessary to make the family settle this estate?
by Angela Deck February 4, 2019 at 12:21 PM
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