Intestate Succession in North Carolina

If you die without a will in North Carolina, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in North Carolina.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in North Carolina.

Who Gets What in North Carolina?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

The Spouse's Share in North Carolina

In North Carolina, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:

If you die with parents but no descendants. Your surviving spouse inherits 1/2 of your intestate real estate and a portion of your intestate personal property, as described in the chart above.

Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also has $150,000 worth of additional personal property that would have passed under a will if she had made one. Joe inherits $125,000 worth of that property -- that is, $100,000 plus $25,000 (half of the $50,000 balance). The remaining $25,000 worth of Gerry's intestate property goes to Gerry's father.

If you die with one child or descendants of that child. Your surviving spouse inherits 1/2 of your intestate real estate and a portion of your intestate personal property, as described in the chart above.

Example: Bill is married to Karen, and they have a son in college. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $200,000 worth of personal property that would have passed under a will, so Karen inherits $130,000 worth of that property -- that is, $60,000 plus $70,000 (half of the $140,000 balance). The remaining $70,000 goes to the couple's son.

If you die with two or more children, or descendants of those children. Your surviving spouse inherits 1/3 of your intestate real estate and a portion of your intestate personal property, as described in the chart above.

Example: Barrett is married to Jed and also has two children from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus a small vacation cabin and $300,000 worth of additional personal property that would have passed under a will if Barrett had made one. When Barrett dies, the cabin passes to Jed and the children in equal shares. Jed inherits $140,000 worth of Barrett's personal property -- that is, $60,000 plus $80,000 (1/3 of the $240,000 balance). Barrett's two children inherit $80,000 each.

Children's Shares in North Carolina

If you die without a will in North Carolina, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have and whether or not you are married. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of North Carolina must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. N.C. Gen. Stat. § 29-17.
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. N.C. Gen. Stat. § 29-17.
• Posthumous children. Children conceived by you but not born before your death will receive a share, as long as they are born within ten months of your death. N.C. Gen. Stat. § 29-9.
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if (1) they have been legally legitimated, (2) you acknowledged your paternity, or (3) your child was born within one year of your death and paternity was established through DNA testing. N.C. Gen. Stat. § 29-19.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. N.C. Gen. Stat. § 29-16.

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws, you can find a link to North Carolina's intestate succession statutes at the end of this article.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.

Other North Carolina Intestate Succession Rules

Here are a few other things to know about North Carolina intestacy laws.

• Survivorship period. To inherit under North Carolina's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. N.C. Gen. Stat. § 29-13.
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. N.C. Gen. Stat. § 29-3.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive, as long as they are born within ten months of your death. N.C. Gen. Stat. § 29-9.
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. N.C. Gen. Stat. § 29-11.
• Advancement. If you give a relative property during your lifetime, its value is subtracted from the relative's share if it is shown this was an advancement and not a gift. N.C. Gen. Stat. § 29-24.
• Life estate. The surviving spouse can choose to live in the marital home for the rest of his or her life or have a life estate in one-third of other real property instead of taking the share of real estate described in the chart above. N.C. Gen. Stat. § 29-24.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find North Carolina's intestate succession laws here: North Carolina General Statutes § § 29-1 to 29-30.

For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.