North Carolina Intestate Succession: What Happens When There Is No Will, No Spouse, and Two Children?

Detailed Answer

When someone who was domiciled in North Carolina dies without a valid will (dies “intestate”), the North Carolina Intestate Succession Act—N.C. Gen. Stat. Chapter 29, Article 1—determines who inherits the probate estate.

1. Order of Inheritance

Because the decedent left no surviving spouse, the next class of heirs is the decedent’s lineal descendants.

• § 29-15 provides that the entire personal and real property passes to the decedent’s children and the issue of any deceased child.
• § 29-16 explains that distribution occurs by “representation” (often called per stirpes): each living child receives an equal share; if a child predeceased the decedent, that child’s share is divided equally among his or her descendants.

2. How the Two Children Inherit

Assume the decedent had two adult children, Alice and Ben, who both survived. Under § 29-15, the probate estate is divided 50 / 50. Each child takes outright ownership of one-half of:

1. Probate real estate (land titled solely in the decedent’s name); and
2. Probate personal property (bank accounts, vehicles, household goods, etc.).

If Alice survived but Ben predeceased leaving two children (the decedent’s grandchildren), Alice would take 50 %, and Ben’s two children would each take 25 % (they share their late parent’s 50 % slice).

3. Opening the Estate

1. Apply for administration. Any heir (often the eldest child) files an Application for Letters of Administration with the Clerk of Superior Court in the county where the decedent resided. See § 28A-4-1.
2. Post bond, unless waived. The clerk may require a bond under § 28A-8-1.
3. Identify, value, and safeguard assets. The administrator prepares an inventory within 90 days (§ 28A-20-1).
4. Pay valid debts and expenses. Creditors must be notified and given 90 days to file claims (§ 28A-19-3).
5. Distribute remaining assets. Once obligations are satisfied, the administrator transfers each child’s one-half share and files a final account.

4. Special Considerations

• Non-probate property. Assets with designated beneficiaries (life insurance, retirement accounts) or property held with survivorship rights pass outside the probate estate and are not divided under Chapter 29.
• Minor children. If either heir is under 18, funds may need to be placed in a guardianship or UTMA account. See Chapter 35A.
• Taxes. North Carolina repealed its estate tax, but large estates may owe federal estate tax. Income earned by estate assets remains subject to income tax.

Helpful Hints

• File the application for administration in the county of the decedent’s permanent residence to avoid jurisdictional delays.
• Order several certified death certificates; banks and the DMV usually require originals.
• Open a dedicated estate checking account—never mix estate funds with personal money.
• Keep detailed records; the clerk can surcharge an administrator for undocumented expenditures.
• If real property must be sold to pay debts, ask the clerk for a special proceeding early; sales take time.
• Communicate regularly with your sibling-co-heir; clear information reduces conflict and attorney fees.

Bottom line: When a North Carolina resident dies without a will, no spouse, and two surviving children, Chapter 29 gives each child an equal one-half share of the probate estate—after debts and costs are paid. The process can be straightforward, but missed deadlines, unclear titles, or creditor disputes can derail even a modest estate.

Our firm guides families through every step of North Carolina probate, from opening the estate to final distribution. If you have questions about your rights or duties as an heir or administrator, call (919) 341-7055 or email intake@piercelaw.com for a confidential consultation.