Can a Verbal Understanding Regarding Personal Property Be Upheld in Probate in North Carolina When the Decedent Did Not Leave a Formal Will?
1. Detailed Answer
In North Carolina, probate courts distribute a decedent’s assets according to a valid will or, if no will exists, under the state’s intestate succession laws. North Carolina law requires certain formalities for a will to be valid. A purely verbal—or nuncupative—will cannot satisfy these requirements and will not control how personal property passes through probate.
Formal Requirements for a Valid Will
Under N.C. Gen. Stat. § 31-2, a will in North Carolina must be in writing, signed by the testator, and witnessed by at least two competent individuals. North Carolina does not recognize oral wills in probate:
Intestate Succession When No Will Exists
If the decedent dies without a valid written will, the estate moves through an intestate probate process. North Carolina’s intestate succession statute controls distribution of personal property to heirs in the following order:
- Surviving spouse
- Children
- Parents
- Siblings and more remote family members
This order appears in N.C. Gen. Stat. § 29-14. The probate court will follow this statutory hierarchy, not any informal or verbal promise.
Small Estate Affidavit Option
When the total personal property does not exceed a threshold set by statute, an heir may use a small estate affidavit to collect assets without formal probate. This option also does not enforce verbal understandings but speeds distribution under intestate law:
Enforcing a Verbal Agreement Outside Probate
Although probate courts will not uphold a verbal agreement about personal property, claimants may pursue a breach of contract or unjust enrichment claim in civil court. To succeed, a claimant must overcome the Statute of Frauds or show a clear-and-convincing proof of the agreement:
N.C. Gen. Stat. § 1-52 (Statute of Frauds)
2. Key Points to Consider
- North Carolina requires a written, witnessed will (N.C. Gen. Stat. § 31-2).
- Without a will, personal property distributes under intestate rules (N.C. Gen. Stat. § 29-14).
- Small estates may use an affidavit process, but verbal promises are not enforced (N.C. Gen. Stat. § 28A-25.2).
- Verbal agreements may give rise to civil claims, not probate directives.
- You must prove any contract claim by clear and convincing evidence, overcoming the Statute of Frauds.
Contact Pierce Law Group for Help
Dealing with probate questions about verbal understandings can feel overwhelming. At Pierce Law Group, our attorneys guide families through North Carolina’s probate system and protect your rights. Contact us today to discuss your situation. Email us at intake@piercelaw.com or call (919) 341-7055.
