In North Carolina, Real Property moves “outside of probate” meaning it is not part of the probate estate unless it must be brought into the probate estate in order to satisfy debts of the estate. This may seem like a reason to not worry about a will if you are only concerned with real estate, but it is not. Real property, like any assets that are not disposed of by a will, is divided using intestate succession laws. The main reason for a will is to make your own decisions about your property and not allow state statute to dictate. This is even more important for real estate because of the high value of the property and what can happen down the road.
Many times, individuals have plans for real property that are different from intestate succession laws controlling how property is inherited absent a will. For instance, if one child of the deceased is living in the house and has been for many years, their claim to the property is no stronger than other siblings, even if you had told everyone they can keep living in the house, they can be forced out. If that same child had been paying the mortgage for years thinking they will inherit the property, that does not create any claim.
The more concerning scenario arises when family members agree on the use of the property in the short term but leave the issue of title open. Say someone dies with 2 living children and 1 deceased child, who had 2 children. In this scenario, each living child inherits one-third of the property and the 2 grandchildren inherit one-sixteenth of the property. If the house is not sold for several years, the ownership can be complicated by other deaths. If one of the children passes away and, in their will gives real property to a friend, the friend is now part-owner of the property. If that friend wants to sell, they can force a sale. Or a more common scenario is the property continues to pass down through generations automatically. This is commonly called “heirs property.” It becomes difficult to determine all the owners and the percentages of ownership may be so small no one takes responsibility for the property. If the taxes are not paid, the property can be lost to the state to pay the taxes and the family loses their property.
Another possible scenario is an individual dying and the property passes to their only child. In this scenario it may seem obvious who the owner is, however, when it comes time to sell the property, the child must prove they are in fact the only child and sole heir of an intestate estate. If no probate occurred and there is no will this becomes time-consuming and potentially costly.
Even if you want the same person to inherit your real property as would under intestate succession, it is important to document this desire to eliminate any confusion about who are your heirs. A Last Will and Testament is then probated to put on record at the courthouse the ownership of real property.
Creating a “simple will” eliminates ambiguity. You can easily bring yourself peace of mind that when you are gone your family has a clear plan.
Revolution Law Group is located in Greensboro, NC serving individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit www.revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice, and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.