Legal Question in Wills and Trusts in North Carolina

Your step-mother may or may not be lying. But its impossible to know and specifically answer the question without more information.

First, when did your father die? Where did he live at the time of his death? Did he have a will? Have at least 30 days elapsed since he died? If so, has an estate been probated, regardless of whether or not there was a will?

What assets did your father own? Are they probate assets or do they pass outside of probate? How were the assets titled? What debts did your father have?

The answers to all of these questions are necessary before a decision can be made as to what you do.

Assuming that the estate for your father is or would be pending in NC, the procedure is to see whether your father had a will. This may come as a surprise to you, but there is no requirement that a parent leave anything to a child or children. Your father, if he so desired, could have made a will leaving everything to the wife. In such case, if the will is valid, then the children get nothing.

If there is no will, then the children would split the estate with the spouse. The spouse gets the first $30,000 of personal property plus 1/3 of any other personal property, and 1/3 of any land. However, this all assumes that there are probate assets. Are there? Not everything is. Life insurance, annuities, IRAs, pensions, joint checking accounts or land owned as a tenancy by the entireties (as husband and wife) all are things which pass outside of probate.

Finally, what debts are there? Before the heirs under either a will or the state intestacy laws can receive anything, all claims against the estate have to be paid before anybody gets anything (other than the spousal allowance which comes first).

The process in NC is that if there is or is not a will, usually the surviving spouse would file a petition to probate the estate. The children have to be notified regardless of whether they would inherit or are disinherited by a will. If no estate has been probated at all, and at least 30 days have elapsed, you or any of the children can get a lawyer and compel the step-mother to produce a will/probate the estate. You can also apply yourself, or, after 6 months, you can request the appointment of a public administrator. I suggest that you or another child seek to do it rather than a public administrator.

If your father made a will shortly before his death which left everything to the stepmother, it is possible to challenge the will, especially if your father had an illness which affected his mental capacity or if you think the stepmother used improper influence to affect your father's decision. However, litigation is very costly and you should carefully review the circumstances with a probate attorney to see if these grounds would exist to get the will invalidated.

Other states have different procedures, but those that I outlined for North Carolina should be fairly common. I would start by contacting the probate court in the county/state where your father lived at the time of his death and see if an estate has been probated if at least 30 days have passed since your father's death. If not, wait until it has. If an estate file has been opened, make a copy of any will or other documents on file (a preliminary inventory of assets etc.) If there is no will, then make a copy of the application for probate and preliminary inventory, if any. Have the documents reviewed by a probate attorney who practices in the county/state where the estate is pending. If there is no estate pending and over 30 days have elapsed, ask the probate attorney about compelling production of the will and probating the estate.

If your parents owned land or vehicles, contact the register of deeds in the county where the land is located and get a copy of the deed to see how the land is titled. In NC, there are personal property records for cars and you can check and see whether any vehicles were owned and how they were titled too. This will give you an idea as to whether there are or are not probate assets.