North Carolina Inheritance Laws

Throughout the fiscal year 2022–2023, North Carolina recorded more than 87,000 estate dispositions. These made up almost 4% of the state’s total dispositions in terms of civil cases. Furthermore, 8.4% of the state’s pending cases involved estate disposition, with the total reaching more than 86,000.

The number of estate disposition cases in North Carolina highlights how frequently probate-related matters can occur. Even if a person dies with a will, the probate process can be more complicated than some would initially think. Issues related to inheritance may arise, and those unfamiliar with the state’s guidelines can be overwhelmed. This can delay the proceedings and put family members in a position where they deal with additional legal burdens.

To help alleviate these potential difficulties, this article provides North Carolinians with information related to the state’s inheritance laws. It will also help them when they seek out legal assistance or encounter any issues when distributing the estate of a deceased loved one.

What Happens if Someone Dies With a Will in North Carolina?

If a person in North Carolina dies with a will, the document will be used in the subsequent probate process to distribute the estate. In a will, a person can state who among their relatives will receive a share of their estate. They can also specify who will become the guardian of their children or how their beneficiaries will share the property they are left with.

Under North Carolina law, any person can make a will as long as they are at least 18 years old. They must also be “of sound mind,” or mentally capable of creating a will. If a person fails to meet these requirements, any will they create is rendered invalid.

Types of Accepted Wills in North Carolina

In general, people in North Carolina use attested written wills. These must be signed by the testator or the individual who made them. Additionally, two witnesses must sign the will in the presence of the testator or acknowledge the latter’s signature. However, witnesses are not required to do so in each other’s presence.

If a testator cannot sign their will on their own, another individual may do so for them under their direction and observation. 

Another type of will that is used in North Carolina is the “holographic” or handwritten will. This will is only deemed valid if it is signed and made entirely in the testator’s handwriting. Unlike an attested will, however, it does not require any witnesses.

In contrast to most states, North Carolina recognizes nuncupative wills. These are made orally by an individual who is severely ill or is facing imminent death. For a nuncupative will to be declared valid, the testator must not survive their illness or imminent death. They must also make the will in the presence of two witnesses who are simultaneously present and were specifically chosen by them.

Written wills can be revoked by making another written will or a document that specifically stipulates their revocation. Nuncupative wills may also be revoked in this manner. Additionally, a testator may revoke a written will by destroying it or by giving another person the authority to do so in their presence.

Choosing a Personal Representative

After a person dies in North Carolina, their estate is distributed following their will with the help of a personal representative. This person, also called an executor, can be chosen specifically by a testator in their will. They will be officially appointed by the Clerk of the Superior Court when the probate process begins.

In case a testator did not name a representative in their will, an individual can apply to become one using a petition for letters of authority. These letters serve as proof of the person’s authority to administer the testator’s estate.

If a decedent’s will is deemed invalid, or if they died without any will, the probate court will name an administrator instead. An administrator’s duties generally do not differ from those of an executor.

Choosing Witnesses

In North Carolina, any person who is deemed sufficiently competent to become a witness for a will may be chosen as one. A personal representative is also not barred from becoming a witness. They may confirm the validity or invalidity of a testator’s will if they are chosen to witness it.

Additionally, the state allows interested parties, such as heirs or beneficiaries, to become witnesses. However, a will must have at least two other witnesses who will not inherit anything from it if an interested party becomes a witness. If this provision is not followed, the interested party in question will gain nothing.

If an interested party is chosen as a witness for a holographic will, they may attest to the will’s validity without forfeiting their rights to inheritance.

North Carolina’s Probate Process

The probate process in North Carolina officially starts when an executor files an application for probate after a testator’s death. They must submit this to the Clerk of Superior Court within the county where the testator lived. The executor must also submit the testator’s death certificate, their will (if there is one), and an initial inventory of their estate.

Generally, an executor must file an application for probate within 60 days from the date of a testator’s death. Once the executor has been officially recognized and appointed by the probate court, they will be given 30 days to inform the decedent’s beneficiaries.

In addition, the executor must notify any creditors or people who have claims against the decedent’s estate within 75 days. These creditors will have up to three months from the day they were notified to file their claims. Notifications can be made through a publication in the local newspaper.

Throughout the proceedings, the executor must catalog the decedent’s estates and address any of the latter’s outstanding debts or taxes. Additionally, they must record the estimated value of the decedent’s assets and real estate property. An inventory of the estate must be completed within three months after the executor’s appointment.

Certain assets are not required to go through probate. These include:

• Any property held by a revocable living trust.

• Retirement accounts with a designated beneficiary.

• Life insurance policies with a designated beneficiary.

• Bank accounts that are paid or transferred upon a decedent’s death.

An executor can only distribute any remaining assets to the decedent's beneficiaries after the executor has paid off any debts, claims, or administrative costs. Afterward, they must submit a final account of the estate to the Clerk of Superior Court to officially close it.

The probate process in North Carolina can last for anywhere from six to 12 months. This often depends on the size of the decedent’s estate and the potential issues that can arise. Executors can work with a probate lawyer who can facilitate a smooth process.

Small Estate Administration

North Carolina allows beneficiaries to skip standard probate proceedings if a decedent’s estate is worth $20,000 or less, excluding any debts or liens. If a person’s spouse is the sole beneficiary of their property, they can skip probate if the estate’s total value is $30,000 or less. This is referred to as small estate administration.

To inherit under the small estate process, you must:

1. Complete a small estate affidavit.

2. Have the affidavit notarized.

3. Sign the affidavit under oath.

4. Include a statement that you are entitled to a specific asset.

After completing the affidavit, the beneficiary must submit it to the Superior Court in the county where the decedent resided. Afterward, they can present a copy to the party managing the decedent’s property.

However, a beneficiary cannot opt for small estate administration until a mandatory 30-day waiting period has passed. They also cannot use this option to collect real estate inheritances.

Summary Administration

North Carolina also has a summary administration process that can speed up probate proceedings. However, this is only available as an option if the decedent’s spouse is the sole beneficiary of the estate. Additionally, the decedent must not have used any type of trust for the estate he left behind.

When choosing this option, the spouse may be responsible for the estate’s debts. This can go up to the value of the property they will potentially receive.

To apply for summary administration, a spouse must file an application and petition for it. If the decedent had no will, they must file a Petition for Summary Administration of Estate Without a Will instead.

Contesting a Will

An interested party in North Carolina may “file a caveat” or contest a will through the Clerk of Superior Court if they have the legal grounds to do so. They are given up to three years after the will has been admitted to probate to contest it. When this is done, the contesting party must notify all the beneficiaries of the proceedings.

The grounds for contesting a will are as follows:

• The will was made under duress.

• The will’s creation did not follow the state’s provisions.

• There was undue influence on the testator when they made the will.

• The testator lacked the mental capacity to understand the will or its creation.

When a will is contested, the probate process cannot continue until the matter is resolved. Furthermore, the burden of proof lies with the contesting party. Those involved can settle the issue through mediation.

What Happens if Someone Dies Without a Will in North Carolina?

North Carolina follows the process of intestate succession when a person dies without a will. In this process, the decedent’s estate will be distributed to their closest relatives. A relative’s share will depend on whether the decedent had a spouse, children, parents, or other family members. Non-probate assets are unaffected by intestate provisions.

The state also has a survivorship provision for intestate succession. In North Carolina, if someone dies without a will, an heir must survive the deceased person by at least 120 hours (5 days) to inherit any property.

Spousal Rights

In North Carolina, if a person has a spouse but no children or parents, their spouse will inherit everything upon their death. On the other hand, their inheritance will change slightly if there are parents or children involved, as follows:

Children’s Rights

Biological children will receive the remainder of an intestate decedent’s estate after the latter’s spouse has received their share, as enumerated above. If a decedent only had children, they would inherit everything.

North Carolina also has the following provisions for other types of children:

The Rights of Other Surviving Relatives

If an intestate decedent has no spouse or children, their estate will be passed to the following relatives in descending order:

• Parents (if only one parent remains, they will inherit everything).

• Siblings or their descendants.

• Grandparents (equal split between paternal and maternal grandparents; if only one side remains, they will inherit everything).

• Aunts and/or uncles or their descendants.

• Next closest kin.

It should be noted that under North Carolina’s intestacy laws, half-relatives have the same rights to inheritance as full relatives.

Estates With No Heirs

In case a decedent has no surviving blood relatives, their property will be given to the state.

Unique Situations in North Carolina Inheritance Law

LGBTQ+ Couples

With the legalization of same-sex marriage in North Carolina in 2014, LGBTQ+ couples are now covered by the state’s inheritance laws. This allows the surviving spouses and legally adopted children of LGBTQ+ decedents to inherit their estate. This also applies if the person died intestate.

Non-residents and Aliens

Non-naturalized citizens and non-residents in North Carolina are not barred from inheriting property. The same provision applies in intestate succession. However, the state does prohibit aliens residing outside the country from inheriting personal property if the country they live in also prohibits United States citizens from doing so.

The Slayer Statute

According to North Carolina’s Slayer Statute, if a beneficiary is convicted of killing the person who left them an inheritance (whether or not there was a will), they cannot receive any property from the deceased person's estate.The probate or intestate process will continue as if the slayer had died before the decedent did. If the slayer has any descendants, their share will be passed to them instead.

Does North Carolina Impose Inheritance and Estate Taxes?

While North Carolina does not have any inheritance taxes and the state estate tax was repealed in 2013, federal estate tax provisions still apply in North Carolina. As of 2024, estates in North Carolina are taxed if their value exceeds $13.61 million. The tax can be up to 40% of the value that goes beyond this threshold.

Legal Resources Related to Inheritance Law in North Carolina

North Carolinians can access the following legal resources to look for information and potential assistance in probate cases. They can also seek the help of a probate lawyer to assist them and their families as they navigate probate proceedings.

North Carolina Judicial Branch - Estates Resources

The North Carolina Judicial Branch’s website has informative resources related to estate planning and administration that users can refer to. They offer a basic overview of probate-related processes, including summary and small estate administration. The website also has links to downloadable probate forms.

North Carolina State Bar

The North Carolina State Bar is open to those who seek legal help in probate and estate planning matters. The organization can assist users in finding attorneys in their area for potential legal representation through its membership directory. It also has a directory of links that redirect to pro bono groups, legal clinics, and other affiliates that users can approach for help.

North Carolina Estate Procedures Handbook

The Estate Procedures Handbook is a free online resource created by the NC Administrative Office of the Courts. It provides state residents with detailed summaries of probate processes and requirements, along with topics related to wills and claims. It also instructs people on what types of documents and affidavits they must use and where they can submit them. In addition, it helps executors and administrators learn more about their duties in a probate case.