If you were to die tomorrow, how would your assets be distributed? If you
are a resident of North Carolina and die without a will, your property will
pass by the laws of Intestate Succession (N.C.G.S. 29). Current North Carolina
statutes indicate that real and personal property will pass as follows:
If you are married with children, the estate is divided between
spouse and children.
If you are married with no children but have a living parent,
the estate is divided between the spouse and the parent.
If you are not married but have children, the property goes
to your children.
If you are not married and have no children, all property goes
to your parents or siblings.
Another issue that arises when you die without a will is the guardianship
of your minor children (children under 18). If you die, and there is no
surviving parent to care for your minor children, then the Department of
Health and Human Services will have temporary guardianship of your children
until a permanent guardian can be appointed by the Clerk of Superior Court.
A will is a useful tool to provide for the disposition of your property at
your death and can also be used to provide for the guardianship of your
minor children. With a will, you decide who will receive your property,
in what proportion, and when they are to receive the property. You can also
establish a trust under a will. This is called a testamentary trust.
A trust created while you are alive, known as a living trust, is a private
document that cannot be viewed by the public. However, if a trust is
created by will, which is a matter of public record, then the trust will also
be public record.
It is important to note that not all property can be disposed of by will or
by intestate succession. The items listed below are known as "will substitutes"
because these items pass regardless of the terms of your will and intestate
succession laws.
Life insurance proceeds will be paid to the named beneficiary.
Pensions funds, retirement accounts, IRA's, will be payable to the
designated beneficiary. If no beneficiary is designated, then the
proceeds will be payable to your estate.
Payable on Death designations will be payable to the
designated beneficiary.
Property owned jointly with Right of Survivorship will pass to
the surviving owner.
Deeds of Title will transfer according to the deed.
Living Trusts: items will pass according to the terms of the
trust document.
When to Change (Amend) a Will
As circumstances in your life change, you may want to update your will to
reflect these changes. You may wish to change your will to provide for
the following life events:
Marriage, Separation, or Divorce
Birth or adoption of a child
Death of a spouse or child
Move to a different state
Who is eligible to create a will? According to N.C.G.S. 31, anyone in North
Carolina who is 18 years of age and of sound mind may make a will. Although
no one likes to think about death, everyone should consider having a will
and know the possible outcomes of dying without one.
Questions about Wills may be answered by consulting an attorney. The material
above is intended to be accurate; however, consultation with appropriate
professionals for assistance is recommended.
