Can I be appointed as the estate administrator even though we were living apart, and how does that affect our adult children’s shares? – North Carolina

Short Answer

In North Carolina, a legally married spouse usually has first priority to be appointed as the estate administrator when someone dies without a will, even if the spouses were living apart. However, a long separation can matter if facts exist that legally bar the spouse’s rights (for example, certain types of abandonment or adultery-based separation) or if the spouse waives the right to serve. Living apart by itself does not automatically change the adult children’s intestate shares, but it can if the spouse is legally barred from inheriting.

Understanding the Problem

When a person dies without a will in North Carolina, can the surviving spouse be appointed as the estate administrator even though the spouses lived apart for years, and does that separation change how the estate is divided between the spouse and the adult children? The question usually comes up when at least one asset has no beneficiary designation and a court-appointed administrator is needed to access and distribute it.

Apply the Law

North Carolina intestate estates are handled through the Clerk of Superior Court (often called the “estate clerk”) in the county where the decedent was domiciled. Appointment as administrator and the amount each heir receives are related but separate issues: (1) appointment decides who has authority to collect assets and pay valid bills, and (2) intestate succession decides who inherits what remains after administration. A separated spouse often can still serve and inherit, unless a statutory bar applies or the spouse gives up (renounces) certain rights.

Key Requirements

Proper priority to serve: The Clerk of Superior Court generally appoints a qualified person with statutory priority. A surviving spouse typically ranks first for appointment in an intestate estate, unless the spouse declines or is disqualified.
No statutory bar to spousal rights: Even if still legally married, certain misconduct-based situations can bar a spouse from inheriting and from administering the estate, which can shift both appointment and inheritance to the children.
Correct intestate share calculation: If the spouse is not barred, the spouse and children usually share the “probate estate” under North Carolina’s Intestate Succession Act. Non-probate assets (like a payable-on-death account) generally pass outside the estate and do not get re-divided as part of intestate shares.

What the Statutes Say

N.C. Gen. Stat. § 31A-1 (Acts barring rights of spouse) – Lists situations where a spouse can lose rights to inherit, claim allowances, and administer the estate.
N.C. Gen. Stat. § 29-13 (Intestacy; survivorship requirement) – States that an intestate estate passes to heirs under Chapter 29, subject to costs and claims, and includes a survivorship requirement.

Analysis

Apply the Rule to the Facts: The facts indicate the couple was still legally married but had lived apart for years, and the decedent died without a will. That usually means the spouse can apply to the Clerk of Superior Court to be appointed administrator, unless the adult children (or another interested person) raise a statutory-bar issue under North Carolina law. On the inheritance side, one bank account already paid to a child by beneficiary designation, which typically means it is not part of the probate estate; the other account without a beneficiary generally becomes a probate asset to be collected and distributed under intestate rules after expenses and valid claims.

Process & Timing

Who files: Usually the surviving spouse (or, if the spouse does not serve, an adult child or other qualified applicant). Where: The Clerk of Superior Court (Estates) in the county where the decedent was domiciled in North Carolina. What: Application for Letters of Administration and the supporting information the estates office requires (commonly including a death certificate and heir information). When: As soon as practical after death, especially if assets require a court-appointed fiduciary to access.
Appointment issues get resolved: If multiple people want to serve, or if someone argues the spouse is barred from serving, the Clerk may require additional information and may treat the matter as a contested estate proceeding, which can extend timelines.
Administration and distribution: After appointment, the administrator collects probate assets (like the non-beneficiary bank account), pays allowed expenses and valid creditor claims, then distributes what remains to the heirs based on intestate succession (or distributes to the children alone if the spouse is legally barred).

Exceptions & Pitfalls

Living apart is not the same as being barred: A long separation alone does not automatically disqualify a spouse from serving or inheriting. A bar generally requires specific facts that fit within the statutory grounds (for example, a divorce from bed and board, abandonment without just cause, or separation with adultery that was not condoned).
Non-probate assets can cause confusion: A payable-on-death or beneficiary-designated account typically passes directly to the named beneficiary and is not re-divided as part of intestate shares. That can lead to a result where one child receives that account plus an intestate share of probate assets unless there is some other enforceable arrangement.
Serving as administrator does not increase the inheritance share: Appointment gives authority and duties (collect, safeguard, pay bills, report to the court). It does not automatically change how the estate must be divided under intestate succession.
Disputes can turn into contested estate proceedings: If the children believe a bar applies, or if there are disagreements about assets or distributions, the matter may require formal service of process and hearing procedures, which can slow access to accounts.

Conclusion

In North Carolina, a surviving spouse usually has first priority to be appointed as the estate administrator even if the spouses lived apart, as long as the spouse is still legally married and no statutory bar applies. Separation by itself does not change the adult children’s intestate shares, but a spouse who is legally barred from spousal rights can also lose the right to inherit and to administer, which can shift the estate to the children. The next step is to file an application for Letters of Administration with the Clerk of Superior Court in the decedent’s county of domicile.

Talk to a Probate Attorney

If you’re dealing with an intestate estate where the surviving spouse was separated and there are adult children and bank accounts that need court access, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.