Short Answer

In North Carolina, if someone dies without a will and is survived by a spouse and one child, the spouse takes the first $60,000 of personal property, one-half of the remaining personal property, and a one-half interest in real estate. The child takes the rest. Nonprobate assets (like joint or payable-on-death accounts) may pass outside the estate, and wrongful death proceeds are distributed to heirs by intestacy rather than paying estate debts first.

Understanding the Problem

You want to know, under North Carolina probate law, what you inherit as the surviving spouse and whether your spouse’s child also inherits when there is no will. Here, there is one child, and you also need to open an estate and be appointed personal representative to receive a personal injury settlement.

Apply the Law

North Carolina’s intestate succession rules control when there is no will. For a decedent survived by a spouse and one child, the spouse’s share differs between personal property and real property. Some assets transfer outside probate by title or beneficiary designation. A separate spousal year’s allowance can be claimed from personal property. Wrongful death recoveries are distributed to heirs under intestacy, while survival-type personal injury proceeds typically become estate assets.

Key Requirements

• Open the estate in the right county: File in the Clerk of Superior Court where the decedent was domiciled at death; the spouse generally has priority to serve as administrator.
• Spousal intestate share with one child: Spouse receives the first $60,000 of personal property, one-half of the remaining personal property, and a one-half interest in real estate; the child takes the balance.
• Real property and mortgages: Title to nonsurvivorship real estate vests in heirs at death, subject to existing liens; the personal representative may bring real property into the estate if needed to pay debts.
• Year’s allowance: A separate $60,000 allowance for the spouse is payable from personal property; if letters have been issued, apply within six months after issuance.
• Estate vs. nonprobate assets: Joint/survivorship or payable-on-death accounts usually bypass probate, but some funds can be reached to pay claims if the estate is short.
• Injury/wrongful death proceeds: Survival-type personal injury proceeds belong to the estate; wrongful death proceeds are distributed to heirs under intestacy and generally do not pay ordinary estate debts.

What the Statutes Say

• North Carolina Gen. Stat. § 29-14 (Share of surviving spouse) – Sets the spouse’s intestate share by family makeup and asset type.
• North Carolina Gen. Stat. § 29-15 (Distribution to other heirs) – Identifies who inherits the balance after the spouse’s share.
• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Provides a $60,000 allowance to the surviving spouse from personal property, with filing timing tied to issuance of letters.
• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death) – Directs distribution of wrongful death proceeds to heirs under intestacy.

Analysis

Apply the Rule to the Facts: With one child as the only other heir, you, as the surviving spouse, take the first $60,000 of personal property, one-half of the remaining personal property, and a one-half interest in the residence; the child takes the other half of each category. Any survival-type personal injury settlement is an estate asset the personal representative receives and administers. If any part of a claim is wrongful death, that portion is distributed to heirs by intestacy rather than used for ordinary estate debts.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: Application for Letters of Administration (and related oath/bond forms) to qualify as personal representative; open an estate account. When: File promptly so you can publish notice to creditors and receive any settlement funds.
2. After qualification, publish and mail notice to creditors; creditors typically have at least 90 days from first publication to present claims. Seek court approval before disbursing a wrongful death settlement; deposit survival-type personal injury proceeds into the estate account.
3. File an inventory (commonly due about three months after qualification), address claims, and complete a final accounting. If property sits in another state, coordinate ancillary administration there. Distribute the estate by the intestacy shares.

Exceptions & Pitfalls

• Acts barring spousal rights (like certain separations or abandonment) can forfeit inheritance; confirm eligibility before claiming.
• Summary administration is not available unless the spouse is the sole heir; with a child also inheriting, expect a regular administration.
• Do not rely on access to a joint or payable-on-death account; some of those funds can be pulled back to pay estate costs and creditor claims if needed.
• Real estate passes subject to mortgages; the estate does not automatically pay off liens unless needed or ordered.
• Out-of-state storage or property may require ancillary administration in that state; start with the North Carolina estate first.

Talk to a Probate Attorney

If you’re dealing with intestacy, a pending injury settlement, and questions about shares between a spouse and child, 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.