Legal Question in Wills and Trusts in North Carolina

Your stepmother may be correct but it depends on what assets your father owned and their value and how they were titled. You do not indicate where your father resided at the time of his death. I assume it was in NC, but if it was not, then you need to check with a probate attorney in the county/state where your father lived at the time of his death as each state has different intestacy laws.

In NC, where a man dies without a will and has a living spouse, then his spouse and any children will split his estate. I do not know if you have any siblings. Generally, it is 50-50 if there is one child and 1/3-2/3 if there are two or more children. I have copied the NC statutes below for you. Exceptions might be if your father and his wife were separated and they had a marital settlement agreement or some other type of pre or post nuptial agreement limiting or waiving your stepmother's rights.

These percentages are for real property only. For personal property, the stepmother inherits the first $30,000 worth of assets; after that, anything else is split as above.

Of course, the above is only general percentages and I do not know what your father owned or how the assets were titled. For example, the proceeds in a joint checking account between your father and stepmother would automatically pass to your stepmother. Land owned as a tenancy by the entirety between your father and stepmother would also pass to her. I could easily envision scenarios where everything would pass to you stepmother as your father did not have probate assets of sufficient value such that there would be enough for you and any siblings to share.

What I suggest you do is that you meet with a probate attorney to specifically review your father's assets and how they were titled so that the attorney will be able to tell you specifically what you will be entitled to receive, if anything, from your father's estate.

Your father could have avoided this situation by creating a will or trust and making sure that his assets would pass to his children if tht is what he desired. Please learn from his mistakes and make sure that you have a will and trust in place. I can prepare wills or trusts and related documents in NC for a reasonable fee. Contact my office if you are interested by emailing me at [email protected].

NC Intestacy Statutes:

29‑14. Share of surviving spouse.

(a) Real Property. � The share of the surviving spouse in the real property is:

(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, a one‑half undivided interest in the real property;

(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children, a one‑third undivided interest in the real property;

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by one or more parents, a one‑half undivided interest in the real property;

(4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, or by a parent, all the real property.

(b) Personal Property. � The share of the surviving spouse in the personal property is:

(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, and the net personal property does not exceed thirty thousand dollars ($30,000) in value, all of the personal property; if the net personal property exceeds thirty thousand dollars ($30,000) in value, the sum of thirty thousand dollars ($30,000) plus one half of the balance of the personal property;

(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, and the net personal property does not exceed thirty thousand dollars ($30,000) in value, all of the personal property; if the net personal property exceeds thirty thousand dollars ($30,000) in value, the sum of thirty thousand dollars ($30,000) plus one third of the balance of the personal property;

(3) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, but is survived by one or more parents, and the net personal property does not exceed fifty thousand dollars ($50,000) in value, all of the personal property; if the net personal property exceeds fifty thousand dollars ($50,000) in value, the sum of fifty thousand dollars ($50,000) plus one half of the balance of the personal property;

(4) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, all of the personal property.

(c) When an equitable distribution of property is awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent, the share of the surviving spouse determined under subsections (a) and (b) of this section shall be first determined as though no property had been awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent, and then reduced by the net value of the marital estate awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent.

29‑15. Shares of others than surviving spouse.

Those persons surviving the intestate, other than the surviving spouse, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, as follows:

(1) If the intestate is survived by only one child or by only one lineal descendant of only one deceased child, that person shall take the entire net estate or share, but if the intestate is survived by two or more lineal descendants of only one deceased child, they shall take as provided in G.S. 29‑16; or

(2) If the intestate is survived by two or more children or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, they shall take as provided in G.S. 29‑16; or

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share; or

(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29‑16; or

(5) If there is no one entitled to take under the preceding subdivisions of this section or under G.S. 29‑14,

a. The paternal grandparents shall take one half of the net estate in equal shares, or, if either is dead, the survivor shall take the entire one half of the net estate, and if neither paternal grandparent survives, then the paternal uncles and aunts of the intestate and the lineal descendants of deceased paternal uncles and aunts shall take said one half as provided in G.S. 29‑16; and

b. The maternal grandparents shall take the other one half in equal shares, or if either is dead, the survivor shall take the entire one half of the net estate, and if neither maternal grandparent survives, then the maternal uncles and aunts of the intestate and the lineal descendants of deceased maternal uncles and aunts shall take one half as provided in G.S. 29‑16; but

c. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the paternal side, then those of the maternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole; or

d. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the maternal side, then those on the paternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole.