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Do You Need A Will?

Published April 14, 2014 by The Wooten Law Firm
Do You Need A Will?

You may wonder whether you really need a will. North Carolina law does not require you to have a will. Still, there are many good reasons for having a will. Most important, a will allows you to decide how your assets will be distributed after your death and to whom. As described below, the ability to direct your assets can spare your family major inconvenience after your death.

What If You Die Without A Will?

If you die without a will, it is called dying intestate. When you do not have a will, your assets are distributed based on North Carolina’s intestacy statutes. The law works as follows:

  • If you have a spouse and no children or parents, your spouse gets everything.
  • If you have children and no spouse, your children divide everything equally.
  • If you have parents and no spouse, children, or grandchildren, your parents get everything.
  • If you have siblings but no spouse, children, grandchildren, or parents, your siblings split everything equally (so far, so good).
  • If you have a spouse and one child or a descendant of one child, your spouse gets half of your real property and the other half goes to your child or your child’s descendant. The first $60,000 in your personal property goes to your spouse with the excess being divided evenly between the spouse and the child or child’s descendant.
  • If you have a spouse and more than one child or descendants of children, the spouse gets 1/3 of the real property with 2/3 divided among children and descendants. The first $60,000 in your personal property goes to your spouse with the excess being divided evenly between the spouse and the child or child’s descendant.
  • If you have a spouse, parents, but no children, your spouse gets 1/2 of the real property and your parents get the other half. Your spouse also gets the first $100,000 of your personal property, with the excess being divided evenly between your spouse and your parents.

Why is Intestacy Bad?

Intestacy often achieves results that are inconsistent with what one would normally want. For instance, if you die and are survived by a spouse and children, most people will leave everything to the spouse (either out right or in trust) with the expectation that the spouse will use the assets to provide for both the spouse and the children. Not so under the intestacy laws which requires the spouse to split the assets with the surviving children.

Similarly, if you die survived by your spouse and parents, but no children, the intestacy laws divided your estate between the surviving spouse and the deceased spouse’s parents. Never have I drafted wills for a young married couple without children that directed that upon the death of one spouse the assets be divided between the surviving spouse and the parents of the deceased spouse. It just does not happen that way.

Splitting the assets between the surviving spouse and children can cause other headaches too. First, if the children are minors, the court will have to appoint a guardian to take custody of the child’s share of the estate. The guardian, presumably the surviving spouse, will have to file a costly accounting with the court every year documenting all the receipts and disbursements made by the parent as guardian for the child over the course of the year. Once the child reaches age 18, he or she gets her inheritance. This too is inconsistent with what most clients want. In my experience, clients typically prefer to keep all the assets together until all the children reach adulthood, so that all the family’s assets can be used to raise all the children. They do not peel off each child’s share on the child’s eighteenth birthday and give it to the child. In addition, not many parents want to give an eighteen year old substantial financial assets. Instead, there is a strong preference for keeping the assets in a trust for the benefit of the child until the child is older and has the maturity and experience to manage the inheritance. That, however, does not happen under state law where the assets are given to the child outright on the child’s eighteenth birthday.

Nontraditional couples present another big void in the intestacy laws. If you have a partner to whom you are not married under the North Carolina intestacy laws, that person gets nothing. This is so often inconsistent with the wishes of the couple who have built a life and home together and who would naturally want the surviving partner to be the beneficiary of the deceased partner’s estate. Without a will, that wish will go unfulfilled.

What A Will Allows

When you work with a lawyer to prepare your will, you can decide exactly how you would like your assets and belongings distributed (subject to North Carolina’s elective share statutes which essentially provide a minimum amount you must leave your spouse under your will). By doing so, you can avoid the anomalous results described above. Your spouse and parents do not have to share your estate and your children do not inherit your estate on their eighteenth birthday. Your life partner to whom you are not married can inherit his or her share of the family nest egg you built together and if none of your close relatives are living, you can leave your estate to a charity you support. In addition to controlling your assets, you can select your executor, trustee and the guardian for your minor children.

The Wooten Law Firm of Raleigh is committed to providing careful and thoughtful estate planning so that your wishes are respected. Avoid the pitfalls of dying intestate described above and contact us for an appointment to begin your estate plan today.


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