Having a will in place helps clarify how a deceased person wanted his property distributed to his loved ones. If no will is present at death, the probate court must step in and distribute the property under a rigid set of state law rules known as intestate succession. As a surviving spouse in North Carolina, the extent of your legal right to your husband's property depends on the nature of his assets and the existence of other living relatives.
If your spouse listed you as the beneficiary on certain types of property, you may have the right to take immediate ownership without any legal proceeding. This property is referred to as "non-probate" and includes life insurance payouts, trust assets, and payable-on-death accounts. Further, North Carolina recognizes a form of joint ownership between husband and wife known as a tenancy by the entirety. Property titled this way, typically real estate, automatically passes to you in full upon the death of your spouse.
Serve as Administrator
Property that does not pass automatically at death is known as probate property. Probate property generally can only change ownership through a legal proceeding and must first be collected and valued by a court-appointed personal representative. As the surviving spouse, you may request this appointment by filing an application with the court. Under North Carolina law, a surviving spouse is generally entitled to serve as representative, provided she has sufficient knowledge of the extent of her spouse's assets.
When an individual dies in North Carolina, the surviving spouse is entitled to an immediate support allowance of up to $20,000 in probate property, if available. This is true regardless of whether a valid will was present, and it means that you have a right to this amount over any creditor claims at death. After the support allowance is paid, any remaining balance will be used by the representative to satisfy debts, taxes and funeral expenses.
Once the support allowance and all debts have been paid, the remaining estate can be distributed. If your husband has no surviving parents, and you had no children together, you are entitled to the entire estate. If your spouse left at least one child or grandchild, you are entitled to the first $30,000 plus one half of the remaining estate. If your spouse left more than one living child or their descendants, you are entitled to the first $30,000 plus one third of the remaining estate. If your spouse left no children, but left one or both parents, you are entitled to the first $50,000 plus one half of the remaining estate.
- Jackie Bedard: What Is Probate? Overview of the North Carolina Probate Process
- The Law Office of Cheryl David: Using Jointly Owned Property in North Carolina to Avoid Probate
- North Carolina Administrative Office of the Courts: Estate Procedure
- North Carolina Legislature: Article 4: Section 30-15
- North Carolina State University: Who Gets Your Property if You Die Without A Will
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