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
- 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.