How to Settle an Estate Without a Will in North Carolina

When a loved one passes away, the probate process begins to settle their estate and distribute their assets to the rightful heirs. But what happens when someone dies without a will in place?

This situation, known as dying “intestate,” can complicate the probate process and leave many families feeling overwhelmed and unsure of what to expect. In this article, we’ll guide you through the basics of probate and intestate succession so you can better understand your rights and responsibilities during this difficult time.

What is Probate?

Probate is the legal process of validating a deceased person’s will, paying off their debts and taxes, and distributing their remaining assets to the beneficiaries named in the will. When someone dies without a will, the probate court still oversees the administration of the estate, but the distribution of assets is determined by the state’s intestate succession laws rather than the deceased’s wishes.

The purpose of probate is to ensure that the deceased’s estate is properly managed and that all legal obligations are met. When there is a valid will in place, the probate process is generally smoother and more predictable, as the will provides clear instructions for the distribution of assets.

However, when someone dies intestate, the probate court must follow the state’s predetermined rules for asset distribution, which may not align with the deceased’s intentions or the family’s expectations.

Dying Without a Will: Intestate Succession

Intestate succession is the legal term for the process of distributing a deceased person’s assets when they die without a valid will. Each state has its own intestate succession laws that determine how assets are divided among the surviving family members. These laws are designed to provide a fair and equitable distribution of assets based on the assumed wishes of the average person.

In North Carolina, the intestate succession laws are outlined in the North Carolina General Statutes, Chapter 29. These laws establish a hierarchy of heirs who are entitled to inherit the deceased’s assets, starting with the closest surviving relatives and moving outward to more distant family members.

Intestate Succession in North Carolina

Under North Carolina’s intestate succession laws, the distribution of assets depends on the surviving family members. Here’s a general overview of how assets are typically divided:

1. If the deceased is survived by a spouse and no children (or all children are shared with the surviving spouse), the spouse inherits the entire estate.
2. If the deceased is survived by a spouse and one child (or descendants of that child), the spouse inherits the first $60,000 of personal property, plus half of the remaining estate, and the child (or their descendants) inherits the other half.
3. If the deceased is survived by a spouse and two or more children (or descendants of those children), the spouse inherits the first $60,000 of personal property, plus one-third of the remaining estate, and the children (or their descendants) inherit the other two-thirds.
4. If the deceased has no surviving spouse, the children (or their descendants) inherit the entire estate in equal shares.
5. If the deceased has no surviving spouse or children, the estate is distributed to other relatives in the following order: parents, siblings (or their descendants), grandparents, aunts and uncles (or their descendants).

There are some exceptions and special circumstances that can affect the distribution of assets under intestate succession laws.

For example, if the deceased owned property jointly with another person with the right of survivorship, that property would pass directly to the surviving owner without going through probate. Similarly, assets with designated beneficiaries, such as life insurance policies or retirement accounts, would be distributed to the named beneficiaries rather than according to intestate succession laws.

The Probate Process Without a Will

When someone dies without a will in North Carolina, the probate process begins with filing a petition with the probate court in the county where the deceased lived. This petition requests the appointment of an administrator (also called a personal representative) to manage the estate and distribute the assets according to the state’s intestate succession laws.

Once the administrator is appointed, they are responsible for several key tasks:

1. Identifying and valuing all of the estate’s assets, including real estate, personal property, bank accounts, and investments.
2. Notifying heirs and potential creditors of the estate administration process.
3. Paying any outstanding debts, taxes, and administrative expenses from the estate’s assets.
4. Distributing the remaining assets to the heirs according to North Carolina’s intestate succession laws.

Throughout this process, the administrator must follow the probate court’s rules and procedures, provide regular updates to the court and heirs, and ensure that all legal requirements are met.

Challenges in Probating an Estate Without a Will

Probating an estate without a will can present several challenges for the administrator and the heirs. Some common issues include:

1. Disputes among heirs: When there is no will to specify the deceased’s wishes, heirs may disagree about how assets should be distributed, leading to conflicts and potential litigation.
2. Difficulty locating and notifying heirs: The administrator is responsible for identifying and contacting all potential heirs, which can be challenging if family relationships are complex or estranged.
3. Increased likelihood of probate litigation: Without a will to provide clear instructions, there is a greater risk of legal challenges to the estate administration process, which can delay the distribution of assets and increase costs.
4. Longer and more costly probate process: Intestate estates often require more court oversight and paperwork, which can prolong the probate process and result in higher administrative expenses.

Assets That May Avoid Probate

Not all assets are subject to the probate process, even if someone dies without a will. Some common examples of assets that may avoid probate include:

1. Jointly owned property with right of survivorship: When two or more people own property together with the right of survivorship, the surviving owner(s) automatically inherit the deceased’s share of the property without going through probate.
2. Assets with designated beneficiaries: Life insurance policies, retirement accounts, and some bank accounts allow the owner to name beneficiaries who will receive the assets directly upon the owner’s death, bypassing the probate process.
3. Trust assets: Assets held in a properly funded trust are managed according to the trust agreement and do not go through probate.
4. Small estates: North Carolina offers a simplified probate process for small estates, which can help heirs avoid the full probate process if the estate’s value falls below a certain threshold.

How Our Attorneys Can Help with Intestate Probate

At Cary Estate Planning, our experienced attorneys understand the complexities and challenges of probating an estate without a will. We provide personalized guidance and support to help clients navigate the intestate succession process with confidence.

Our services include:

1. Guiding clients through every step of the probate process, from filing the initial petition to distributing assets to heirs.
2. Assisting with the identification and location of heirs, using our experience and resources to ensure all legal requirements are met.
3. Resolving disputes and litigation that may arise during the estate administration process, working to protect our clients’ rights and interests.
4. Expediting the distribution of assets to heirs, minimizing delays and administrative costs whenever possible.
5. Providing peace of mind and support during a challenging time, offering clear communication and compassionate advice throughout the process.

Dealing with the loss of a loved one is never easy, and the probate process can add an additional layer of stress, especially when the deceased did not leave a will. By understanding the basics of probate and intestate succession, you can be better prepared to navigate this process and ensure that your loved one’s estate is handled properly.

At Cary Estate Planning, we believe that everyone should have a well-drafted will in place to protect their assets and provide for their loved ones. However, if you find yourself in a situation where a family member has died without a will, our knowledgeable attorneys are here to help. We offer personalized estate planning guidance and probate services to help you through this difficult time and ensure that your rights and interests are protected.

Contact our attorneys today to discuss your estate planning needs and ensure your wishes are carried out.