Dying Without a Last Will and Testament

Most people don’t think about what will happen if they die without a Will. As a matter of fact, most people don’t think about Wills at all. Over half of Americans have never executed a Last Will and Testament. What they may not realize, however, is what happens to their estate (the house, the car, the business, the bank accounts) in these circumstances. Dying without a Will is called dying “Intestate” and is covered in the North Carolina statutes under N.C.G.S. Section 29-13 et seq. Under these statutes, the State of North Carolina determines a person’s heirs and they may not be persons with whom the deceased person (the “Decedent”) liked or had a relationship. It could be a distant cousin or a parent who did not participate in raising the Decedent who inherits because they stand in line under the statute.

There are several common misconceptions about what happens if a person dies without a Will. Many people believe all the property escheats to the state but this really only happens if there are no living relatives at all. Another common misconception, with more serious consequences, is the belief that a surviving spouse is always granted all or substantially all of the Decedent’s intestate estate. It is commonly assumed that if a person is married, has children of that marriage and dies without a Will the surviving spouse will inherit all of the assets; this is not true. The children, even minor children, share in a significant part of the estate. This is particularly problematic when the deceased spouse owned the house or the business in his or her name alone even though the couple considered the asset as joint. A court supervised guardianship must be established for each minor child requiring annual accountings and the court’s permission must be sought for any asset to be sold or any distribution of funds to be used for the child’s care or benefit. This is usually shocking to the surviving parent who assumes that his or her children’s inheritance, left by the deceased parent, should be available for expenses of raising the child, for health care, children’s activities and tuition costs. Similarly, if a person does not have children but is married with but has parents surviving, the parents share in the estate with the surviving spouse. A Will with simple trust provisions can prevent these problems.

These are just some of the problems that can arise when a person dies without a valid Will. It is unfortunate that a lack of proper planning often causes property to pass in a way the Decedent never would have intended.

Estate Planning & Admin