When a person dies with a valid will in North Carolina, his property will pass to the beneficiaries he named in his will. A valid will is one in which the maker is at least 18 years old and mentally competent, and the will was properly signed in the presence of witnesses. Without a valid will, a person's estate passes to his surviving relatives in accordance with North Carolina's intestate succession laws.
If spouses are divorced prior to the death of the deceased, any provisions in a will leaving property to the ex-spouse are considered void. The only way an ex-spouse is entitled to inherit from the deceased in North Carolina is if the will was drafted after the divorce was final or a writing exists specifically instructing that the ex-spouse is still entitled to inherit.
Unless spouses are divorced prior to a deceased's death, a surviving spouse is always entitled to inherit from the deceased spouse's estate. If a surviving spouse is disinherited, North Carolina permits the surviving spouse to seek an "elective share" from the probate court. The surviving spouse must file a petition with her request no later than six months after the court issues letters testamentary to the executor of the estate, authorizing him to collect and distribute the deceased's property. The spouse is then entitled to inherit an elective share of one-half of the estate if the deceased is survived by no more than one child. If there are two or more children to inherit the deceased's estate, the surviving spouse's elective share is limited to one-third of the estate.
A creator of a will is entitled to disinherit his children if he does not want them to receive any property in his estate. However, there are provisions in North Carolina law for when a child is inadvertently left out of a will because he was born after the will was made. These children, called after-born children, are entitled to inherit a portion of the estate unless they are beneficiaries of another non-willable asset, such as a life insurance policy or transfer-on-death bank account. Additionally, if the deceased has other children who were born prior to the making of the will and none of them are named as beneficiaries, the court presumes the deceased did not intend to leave an inheritance to his children and the after-born child is also not permitted to inherit.
North Carolina statutes provide for a surviving spouse to receive a year's allowance from the deceased's estate. The allowance is designed to provide financial support for a spouse and minor children in the period immediately following the deceased's death. The surviving spouse must petition the court for the year's allowance within one year of the deceased's death. The court will then award $20,000 from the personal property in the deceased's estate to the surviving spouse, plus an additional $2,000 for each child under the age of 18 or a mentally disabled child under the age of 21.
When a will is declared invalid, or if a person dies without a will, his surviving spouse and other relatives may be entitled to inherit his estate according to North Carolina's intestate succession laws. The surviving spouse is entitled to inherit all real and personal property if the deceased was not also survived by at least one child and one parent. If there is one child or one parent, the surviving spouse will inherit half of the real estate plus $50,000 and half of the personal property. When there are two or more children, the spouse inherits one-third of the real estate plus $30,000 and one-third of the personal property. When there is no spouse, surviving children inherit equal shares of the entire estate, both real and personal property. When there are also no children, other relatives inherit in the following order: descendants of children (grandchildren, great grandchildren, etc.), parents, siblings, nieces and nephews, aunts and uncles, and then cousins.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
- North Carolina General Assembly: Chapter 31: Article 1- Execution of Will
- North Carolina General Assembly: Chapter 31: Article 2- Revocation of a Will
- North Carolina General Assembly: Chapter 30: Article 1A- Right of Elective Share
- North Carolina General Assembly: Chapter 29: Intestate Succession
- North Carolina General Assembly: Chapter 30: Article 4- Year’s Allowance
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.