Division of Assets Can Be Complicated Without a Will

It is not uncommon to die without a last will and testament. In fact, many celebrities, such as Jimi Hendrix, Bob Marley, Michael Jackson, and even Abraham Lincoln, died without a will – intestate. Most recently, the media has been buzzing with the rather shocking news that musician Prince died intestate and without a surviving spouse, children, or parents. Watching the distribution of his estate will be interesting because it shows how complicated dying intestate can be. It’s also imperative to note that the probate process for Prince’s estate is essentially the same troublesome and time-consuming ordeal for people of any amount of income or assets.

Seeing the complicated probate process for Prince’s estate should spur everyone to have a will of some kind, no matter how simple. North Carolina family law attorney Jonathan Breeden of Breeden Law Office can help you draft a will so that your loved ones do not have to endure the complex distribution process of intestate succession. Call him today at (919) 661-4970.

Estates Without A Will Follow Intestate Succession

In North Carolina, if you die intestate, your estate will pass though the state’s succession laws in probate court. The basic process of moving your estate through the legal system includes the following steps:

1. Appointment of a personal administrator as executor of your estate
2. Notice of death to your heirs, beneficiaries, and creditors
3. Inventory of your assets
4. Payment of estate taxes, funeral expenses, and debts
5. Division of your property among surviving relatives according to the law

The manner in which property is divided among surviving relatives relies on North Carolina’s Intestate Succession Act (Chapter 29 in the General Statues). The list below is not exhaustive, as every person who dies has a unique set of heirs and beneficiaries. Because every situation is different, division of assets can quickly get muddy.

Intestate succession follows these rules:

• If you have a surviving spouse and one surviving child: The spouse will receive half of real property, plus the first $60,000 of personal property, plus half of any remaining personal property. The surviving child will receive the other half of real property plus half of any personal property that exceeds $60,000.
• If you have a surviving spouse and more than one child*: The spouse will receive one-third of real property, plus the first $60,000 of personal property, plus one-third of any remaining personal property. The children will split the remaining two-thirds of real property and remaining two-thirds of personal property.
• If you have a surviving spouse and parents, but no children: The spouse will receive half of real property, plus the first $100,000 of personal property, plus half of any personal property that exceeds $100,000. The surviving parents will receive half of the real property plus half of any personal property that exceeds $100,000.
• If you have a surviving spouse, but no surviving children or parents: All real and personal property is inherited in full by the spouse.
• If you have a surviving child/children, but no surviving spouse: All real and personal property is inherited in full by a single child. Otherwise, real and personal property is divided equally among the children.
• If you have no spouse or children, but living parents: The entire estate will be divided equally between the parents.
• If you have no surviving spouse, children, or parents, but one or more surviving siblings: All real and personal property is divided by the number of siblings (this includes both living siblings and deceased siblings who have lineal descendants.) In the case of lineal descendants of a deceased sibling, the share for the deceased siblings is further divided equally among the lineal descendants.

*North Carolina grants a lineal descendant of a deceased child the same rights as that of a surviving child, so for example, if a child passes away before the decedent but is survived by a child, that grandchild of the decedent inherits real and personal property equal to that of the surviving child.

Adopted Children and Children Born Out of Wedlock

Adopted children, and their lineal descendants, are treated the same as natural born children, so their ability to inherit is the same as above. Additionally, a child who is born out of wedlock and confirmed to be the legitimate child of the descendant shall be treated the same as children born within wedlock and will therefore be entitled to the same inheritance.

Elective Life Estates

According to §29-14, a surviving spouse will only receive a fraction of the decedent’s real property, assuming the decedent had children or parents survive him or her. However, a surviving spouse can petition for an elective life estate, which grants full ownership of the marital residence and all assets inside the home, as well as one-third of all remaining real estate property (if the marital residence alone amounts to less than one-third of the estate.) A surviving spouse may find this option more attractive than regular succession if the decedent had more debts than assets, since debts, such as estate taxes and legal claims, get paid from the estate before it is distributed.

How Having a Will Can Help

The description above represents just a brief overview and is not all-inclusive. What you can clearly see is that the division of an estate can quickly get complicated. This confusion can be avoided by clear directives spelled out in a will. Having a will in place gives you the chance to name your personal administrator and allows you to determine how your assets will be divided.

Attorney Jonathan Breeden of Breeden Law Office is a native of North Carolina and has been navigating the state’s complex succession laws for many years. Working with a North Carolina family law attorney of his caliber will assure you that your wishes will be granted and your family will be taken care of in the manner you desire. Call (919) 661-4970 today.