What share of my father’s real property and personal assets am I entitled to under intestacy? – North Carolina

Short Answer

In North Carolina, when a parent dies without a will and is survived by a spouse and two or more children, the spouse generally receives a one-third undivided interest in the real property and $60,000 of personal property plus one-third of the remaining personal property. The children split what is left, typically in equal shares. Property that passes outside probate (like many joint-with-right-of-survivorship assets and beneficiary-designated accounts) may not be part of the intestate estate, even if it was “owned” by the decedent.

Understanding the Problem

Under North Carolina probate law, what share can a child claim when a father dies without a will, leaves a surviving spouse, and leaves multiple children? How does the answer change depending on whether the asset is real property titled only in the father’s name versus real property titled jointly with the spouse? How do personal assets and business interests get counted for intestacy when probate has not been opened and the surviving spouse appears to be claiming the entire estate?

Apply the Law

North Carolina’s Intestate Succession Act controls who inherits when someone dies without a valid will. The surviving spouse’s share depends on (1) whether the property is real property or personal property and (2) whether the decedent left one child or two or more children. After the spouse’s share is set, the remaining “net estate” passes to the children (and, if a child is deceased, that child’s descendants) under North Carolina’s class-based distribution rules. A key practical point is that not everything “owned” at death is part of the intestate probate estate; some assets transfer automatically by title or beneficiary designation.

Key Requirements

Intestacy (no will controlling the asset): The asset must be part of the estate that is not disposed of by a valid will or other controlling transfer mechanism.
Identify the heirs and the correct class: When there is a surviving spouse and children, the spouse takes the statutory share first, and the children take the remainder as the next class of heirs.
Identify what property is in the “net estate”: The intestate shares apply to the probate estate after administration expenses and valid debts are handled, and they generally do not override assets that pass by survivorship or beneficiary designation.

What the Statutes Say

N.C. Gen. Stat. § 29-14 (Share of surviving spouse) – Sets the spouse’s intestate share and treats real property and personal property differently, including the $60,000 personal property allowance when the decedent is survived by children.
N.C. Gen. Stat. § 29-15 (Shares of others than surviving spouse) – Provides that children (and descendants of deceased children) take the remainder after the spouse’s share.

Analysis

Apply the Rule to the Facts: The facts describe a North Carolina intestate estate where the decedent is survived by a spouse and multiple children. Under the statute, the surviving spouse does not automatically receive “everything” just because probate has not been opened. For real property owned solely by the decedent, the spouse generally takes a one-third undivided interest (when there are two or more children), and the children split the remaining two-thirds. For personal property in the probate estate, the spouse generally takes $60,000 plus one-third of the remaining net personal property, and the children split what remains.

Process & Timing

Who files: A qualified person (often a spouse or an adult child) may apply to serve as the personal representative. Where: The Clerk of Superior Court (Estates) in the county where the decedent was domiciled in North Carolina. What: An application to open an estate and be appointed (the clerk’s office provides the required forms and procedures). When: As soon as practical after death, especially when assets need to be secured, bills are being paid from estate funds, or title issues exist.
Notice and administration: After appointment, the personal representative gathers and values probate assets, determines which assets pass outside probate, gives required notices, and addresses valid debts and expenses before distributing the net estate to heirs.
Distribution: The personal representative distributes the intestate shares (including the spouse’s statutory share and the children’s remainder shares) and completes the required filings to close the estate.

Exceptions & Pitfalls

Jointly titled real estate may not be part of the intestate estate: Real property held as tenants by the entirety (common for married couples) or as joint tenants with right of survivorship usually passes automatically to the surviving spouse and is not divided under intestacy.
“Personal assets” can include non-probate transfers: Life insurance, retirement accounts, payable-on-death accounts, and similar assets often pass by beneficiary designation and may not be controlled by intestacy.
Business interests require document review: Ownership interests may pass through the estate, but operating agreements, shareholder agreements, buy-sell agreements, and beneficiary designations can change what transfers and to whom.
Debts and expenses affect what children actually receive: Intestate shares apply to the net estate after proper administration; assuming a percentage of “everything owned” can be misleading.
Family relationships matter: A half-sibling generally does not inherit if the decedent is survived by children; siblings typically inherit only if there is no surviving spouse, no children (or descendants), and no surviving parent in the statutory order.

Conclusion

In North Carolina intestacy, when a father dies without a will and is survived by a spouse and two or more children, the spouse generally receives a one-third undivided interest in real property and $60,000 plus one-third of the remaining net personal property, and the children split what remains. Joint-with-right-of-survivorship property and beneficiary-designated assets often pass outside intestacy. The next step is to open an estate with the Clerk of Superior Court (Estates) in the county of domicile so a personal representative can identify probate assets and distribute the intestate shares.

Talk to a Probate Attorney

If a parent died without a will and a surviving spouse is claiming the entire estate, a probate case can clarify what is probate property, what passes outside probate, and what shares the children receive under North Carolina intestacy. Our firm has experienced attorneys who can help explain 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.