• Ruth Allen

No, the State will NOT take all of your assets if you die without a will!

7/30/18


I am continually astonished at this particular piece of misinformation. In North Carolina, a person who dies without a valid will (and it doesn’t have to be “current”, there is no expiration date for a validly executed will) is said to have died intestate. The North Carolina Intestate Succession Act directs how their assets will be distributed.

While not a lively read, North Carolina General Statutes § 29-14 directs how assets are distributed when there is a surviving spouse, and N.C.G.S. §29-15 and §29-16 address how they are distributed when there are survivors other than (which can also be in addition to) the surviving spouse. Generally speaking, the law follows how estate assets would be distributed if someone did have a will, for example, when there is a surviving spouse, with no lineal descendants or parents living, the spouse takes everything. For further example, when there is a surviving spouse and one child, or a lineal descendant of a deceased child, the spouse takes 1/3 interest in any real property, and $60,000 + ½ of the balance of any personal property.


Even without a will, you can plan ahead and direct your assets to whom you wish them to go by designating beneficiaries for your insurance, retirement accounts, and investments. Similarly, you can arrange with your bank to designate a POD – pay on death – or person who has survivorship rights to your bank accounts, and those assets immediately belong to that particular person at death. Finally, you can choose to have your real estate titled with another person as “Joint Tenants with Right of Survivorship”, which means that the survivor is vested in ownership of the real estate once you die.


Married couples who buy real estate in North Carolina automatically obtain title as Tenants by the Entirety. This means that the marital unit owns the property, not two individuals, and at the death of one, the surviving spouse is immediately vested as the sole owner of the real estate.


The only time that funds or property go to the state (called escheat) is when there is no person who is entitled to take under the North Carolina Intestate Succession Act.

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