The death of a homeowner is often an emotional and stressful time for loved ones. It can be especially difficult if the deceased homeowner does not have a will or estate plan in place. Without these key documents, North Carolina intestacy laws will determine what happens to the deceased person’s assets, including any real estate like a house.
Homeowners need to understand North Carolina succession laws and how they impact property when someone dies without a will. With proper planning, you can help ensure your house and other assets are transferred according to your wishes.
What is Intestacy and Intestate Succession in North Carolina?
Intestacy refers to when someone dies without having a valid last will and testament. When this happens, North Carolina’s intestacy succession laws determine who inherits the deceased person’s probate property, which includes assets like a house titled only in the deceased person’s name.
If someone dies intestate in North Carolina, the probate court will appoint an administrator to handle the probate process. This involves identifying assets, paying debts, and eventually distributing property to heirs according to intestacy laws.
North Carolina has default intestate succession laws that provide a hierarchy of who inherits when someone dies without a will. Generally, property is distributed first to close relatives like a spouse and children. More distant relatives inherit if no immediate family members are living.
Does a Spouse Inherit a House in North Carolina Intestacy?
If a married homeowner dies without a will in North Carolina, the surviving spouse may be entitled to some or all of the deceased spouse’s share of real estate, such as a home.
However, the exact inheritance depends on several factors:
- Was it separate or community property? North Carolina is not a community property state. Property owned separately by each spouse prior to marriage or received via gift or inheritance during marriage is considered separate property. Upon intestate succession, separate property goes to the deceased person’s heirs, which may include the surviving spouse.
- Did the spouses own the home jointly? Spouses can own North Carolina real estate as joint tenants with the right of survivorship or as tenants in common. Joint tenancy includes the automatic right of survivorship, so the surviving co-owner receives the deceased owner’s share. Tenants in common each own a fractional share, so the deceased’s share passes via will or intestate succession.
- Were there children or other descendants? Under North Carolina intestacy law, a surviving spouse inherits the entire intestate estate only if there are no descendants (children or grandchildren of the deceased). Otherwise, the spouse inherits a portion, and descendants receive the rest.
- Was it the spouses’ primary residence? In North Carolina, a surviving spouse has a special elective share right, allowing them to receive a life estate in the deceased spouse’s 1⁄3 interest in their primary residence, even if they inherit under intestacy laws.
Overall, North Carolina strives to distribute intestate property to both a surviving spouse and any descendants. Consulting an estate planning attorney can help interpret how the laws apply to your specific situation.
Do Heirs Inherit a House When the Owner Dies Intestate?
In the absence of a will, North Carolina intestacy laws provide a succession hierarchy for who inherits a deceased homeowner’s real estate.
Generally, property like a house passes as follows:
- The surviving spouse inherits some or all, along with any descendants
- All to descendants (children, grandchildren) if no surviving spouse
- Parents, if no descendants
- Brothers/sisters, if no parents
- Grandparents, if none of the above
- Aunts/uncles, if no grandparents
- Cousins, if none of the above
The share inherited depends on which and how many heirs survive the deceased homeowner. Under intestacy, North Carolina generally favors inheritance by close family first before more distant relatives can inherit.
Does Real Estate Go Through Probate in North Carolina Intestacy?
Yes, any real property, like a house titled solely in the deceased’s name, will go through probate in North Carolina intestacy. The probate court provides supervision over the estate administration process.
The administrator appointed by the probate court will inventory the estate and eventually distribute the house by preparing a new deed transferring title to the rightful heirs according to intestacy laws. This deed gets recorded to show the change in legal ownership.
Can Heirs Sell a House that is in Probate in North Carolina?
For real estate like a house that is part of probate after intestacy, the heirs cannot immediately sell the property or transfer ownership. The estate administrator must first complete the court-supervised probate process.
Once the administrator distributes the North Carolina property to the lawful heirs and records the updated deed, the new owners have the right to sell the house or add/remove names from the property’s title.
In some cases, an administrator may need to sell the deceased’s home before final distribution to heirs. This can provide funds to pay debts and expenses or to distribute estate value to multiple beneficiaries more easily. The administrator would need court approval for such a sale.
Should I Avoid Intestate Succession of My House with Proper Planning?
Dying without a will can lead to delays, expenses, and unintended outcomes for assets like your North Carolina house.
To avoid intestacy, it is wise for homeowners to plan with one or more estate planning strategies proactively:
- Create a Last Will and Testament – A will allows you to name guardians for minor children, designate an executor, specify how you want your probate assets distributed, and name beneficiaries for your estate.
- Set up a Revocable Living Trust – Transferring your house to a trust may allow you to avoid probate. A living trust can outline your wishes and provide for smoother, quicker transfer of your house to chosen beneficiaries after death.
- Use Beneficiary Deeds – North Carolina permits transfer-on-death (TOD) deeds. Recording a TOD deed for your house names a beneficiary who inherits the property immediately upon your death, without probate.
- Own property Jointly – Owning your home as joint tenants with the right of survivorship creates an automatic transfer of ownership to the surviving co-owner upon death.
Consulting with an experienced estate planning or probate attorney can help you fully understand your options. With proper planning, you can have greater control and peace of mind knowing what will happen to your North Carolina house.
Get Legal Help Understanding NC Intestacy Laws for Real Estate
As you can see, North Carolina’s intestacy statutes distribute your property based on formulaic rules. The division often will not match your wishes.
A last will gives you control over who inherits your property and lets you minimize estate taxes. Work with an experienced estate planning lawyer to create a customized will and supporting estate plan.
Raleigh estate planning lawyers at Apple Payne Law can advise you on wills, trusts, tax planning, and more. They help families across North Carolina protect their legacy. Contact their team today to schedule a consultation.