IF YOU LIVE IN NORTH CAROLINA, YOU SHOULD HAVE A WILL
Written by Jim Worthington on March 2, 2022
The world is shocked when a celebrity dies without a will. But we really shouldn’t even be surprised—much less shocked. Survey after survey reveals that at least half of American adults don’t have a will. This article explains why not having a will is a problem by looking at some common scenarios for families in North Carolina. The answer lies in the law of intestate succession, which provides different inheritance rules depending on who one’s survivors are.
Before diving into those rules, it’s worth pointing out that some assets are controlled by joint ownership or beneficiary designations. Jointly owned bank or brokerage accounts, life insurance, and retirement plans are prime examples. Those contractual agreements override both wills and intestate succession rules.
The discussion that follows applies only to property that didn’t have a beneficiary designation and that a person owned in their sole name before passing away. We’ll refer to that person as the decedent or deceased spouse. The spouse left behind is the surviving spouse.
Spouse and Children
Surviving spouses can request $60,000. Minor children, and some other children whom the decedent supported, including full-time students under 22 years old, can each request $5,000. Those are paid off the top before any of the decedent’s creditors get paid. While we think of a person’s assets going to family, creditors get paid first in a statutory scheme of priorities. These off the top entitlements for spouse and children can really help the family of someone who dies owing a lot of money.
After creditors are paid, the surviving spouse can choose between inheriting outright a percentage of both real and personal property or a life estate in just real property. Real property includes land and buildings. Personal propertyincludes tangible items as well as intangible assets like bank and investment accounts. A life estate is the right to use property during one’s life without the power to say what happens to it after one’s death.
Many—maybe even most—modern couples have more of their net worth tied up in investments and other assets. For that reason, many surviving spouses will choose to receive a percentage of the decedent’s mixed real and personal property. They receive the first $60,000 of personal property, as discussed earlier. They also receive a percentage of any excess personal property and of any real property. If the deceased spouse had one child, that percentage is 50%; if the deceased spouse had more than one child, that percentage is 33-1/3%.
This mixed real and personal property concept is much simpler than the life estate in real property route. Giving the surviving spouse the right to elect a life estate in real property is a historic hangover from the days when the land one controlled was the measure of one’s wealth. Because it’s no longer common, we won’t go into detail about it.
If a person is survived by children but not a spouse, e.g., a divorced person, the children receive the entire estate after creditors are paid.
Whether a spouse survives or not, the share for any minor child (under 18) may be held by a parent or custodian. Certain persons can request accountings for how the property is held or is being used. Once the child turns 14, they have the power to request accountings. Once the child reaches 18, they inherit even if they’re not mature enough to handle the money.
Married Persons without Children
If the deceased spouse did not have children, the surviving spouse receives the first $100,000 and one-half of any amount above that. The parents receive the remaining half. If only one parent survives, they take the entire parental share. If neither parent survives, that share passes to the decedent’s siblings, nieces, and nephews.
One clear lesson of these scenarios is that persons with minor children need a will. Otherwise, an 18-year-old could inherit before being mature enough to handle it. Not having a will could be viewed as parental malpractice. Even if one doesn’t have children, dying intestate is not a good idea. It’s not hard to imagine the arguments that could arise among family, perhaps including a stepparent, about the value of real and personal property when making the $60,000, $100,000, one-third, and one-half allocations.
In short, having a will makes things much easier for the surviving family. If you’re a parent of minor children, it is so important that if you don’t have one, you should make it an urgent project. For others, it should be at the top of your list. Consulting an experienced estate planning lawyer can make it an easy task to check off your list.