The loss of a family member or close loved one is a time filled with grief and heightened emotions for everyone involved. In the midst of all those emotions it may be difficult to think about the practical and legal ramifications of the decedent’s death; however, someone needs to do so. If you have been elected to address the legal aspect of your loved one’s death, that means you will be responsible for probating the decedent’s estate. Typically, the first step in the probate process is to submit the decedent’s Last Will and Testament to the appropriate court. What do you do, however, if the decedent did not leave behind a Will? How do you probate an estate when there is no Will?
Learning the Terminology – Testate vs. Intestate Estates
If you will be in charge of administering the decedent’s estate, the first thing you need to do is learn some of the proper terminology. A testate estate is one in which the decedent executed a valid Last Will and Testament prior to his or her death. An intestate estate is one in which the decedent did not execute a Will prior to death. When a decedent died testate, the terms of the Will are used to probate the estate and to determine how the estate assets are distributed. In an intestate estate, the North Carolina intestate succession laws are used to probate the estate and will dictate what happens to estate assets.
Executor vs. Personal Representative
Someone must be appointed to oversee the probate of an estate. In a testate estate, the person named as the Executor by the decedent in his/her Will is usually confirmed by the court as the individual who will oversee the probate of the estate. In an intestate estate, the court must appoint someone without the benefit of knowing who the decedent would have chosen. Any qualified adult may petition to be the Personal Representative of the estate. The court will appoint someone, using the following priority guidelines:
- The surviving spouse of the decedent;
- Anyone who is to receive property as indicated by the will of the decedent;
- Anyone who is entitled to receive property of the decedent by law in the absence of a will;
- Any next of kin;
- Any creditor to whom the decedent became obligated prior to death;
- Any person of good character residing in the county who applies with the Clerk of Superior Court.
Probate vs. Non-Probate Assets
Not all assets are part of the probate process. Assets that pass to beneficiaries outside of the probate process are referred to as non-probate assets. Some of the more common non-probate assets include:
- Assets held in a trust
- Certain types of jointly held property (if there are rights to survivorship)
- Assets held in a “transfer on death (TOD)” or “payable on death (POD)” account
- Proceeds of a life insurance policy
- Funds held in some retirement accounts
North Carolina Intestate Succession Laws
The general process and procedures for probating an intestate estate are basically the same as for probating a testate estate; however, the fate of the estate assets is governed by the North Carolina intestate succession laws instead of the Will. Consequently, the following people will inherit from the decedent’s estate:
- If the decedent left behind children, but no spouse, the decedent’s children receive his/her entire estate in equal shares.
- If the decedent left behind a spouse, but no children, the decedent’s spouse receives his/her entire estate.
- If the decedent left behind one child (or descendants of one child) and a spouse, the decedent’s spouse inherits one-half of the intestate real estate. In addition, the spouse receives the first $60,000 worth of personal property and one-half of any personal property above the $60,000 threshold. The decedent’s child inherits the other one-half of the decedent’s interest in real estate plus one-half of any personal property above $60,000.
- If the decedent left behind two or more children (or descendants of them) and a spouse, the spouse will receive one-third of the decedent’s interest in real estate plus the first $60,000 worth of personal property and one-third of any personal property above the $60,000 threshold. The children inherit, in equal shares, the remaining two-thirds of the decedent’s interest in real estate plus two-thirds of any personal property above $60,000.
- If the decedent left behind a spouse and parents, but no children, the spouse will receive the first $100,000 in personal property and one-half of the decedent’s interest in personal property valued above $100,000 with the parents receiving the other one-half interest.
- If you leave behind parents but no spouse or children your parents inherit your entire probate estate.
- If you leave behind siblings but no spouse, children, or parents your siblings inherit everything in equal shares.
If you have additional questions about intestate succession or probate in the State of North Carolina contact the experienced estate planning attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.