Legal Question in Wills and Trusts in North Carolina

I live in nc. my father just died in july 2011. many times over the years, my dad told my brother and i that there was money set aside for us at the time of his death. a few months before he passed, he put my step moms name on his account so she could pay his bills from the account. he died quicker than he thought, didnt have a will and now she is completely ignoring my brother and i. she refuses to give us any money and claims there isnt any, but wont let us see any bank statements. she also refuses to share any of his assets with us, no matter how small..there is a lot more to it, but that is it in a nut shell. do my dads adult children have any rights? we were not estranged; in fact very close. at this point in time, his wife and stepchildren will inherit his entire estate, leaving my brother, i and my nephews with nothing. we feel helpless and have no idea what to do.

Asked on 8/21/11, 3:49 pm

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I don't care what your father told you. If he did not make a will, too bad. And it doesn't matter how close you were. Your nephews are not relevant. If your father had children, they would inherit, not the nephews. I am not being rude or ugly, but that is the way it is.

By your father putting his wife's name on his checking account, the rules are that whatever is in the account passed to the survivor named on the account. In this case, its your stepmother and she is not obligated to give any of that money to you. Nor does she have to share bank statements with you.

If your father lived in North Carolina when he died, funds from the checking account might have to be pulled back into your father's estate if there is not enough money to pay the bills.

I do not understand when you say that your father's stepchildren will inherit. That is not true. The stepchildren get nothing from your father's estate unless your stepmother chooses to give them things belonging to your father. Any assets of your father's estate (again assuming that your father lived in North Carolina) would pass to your stepmother and your father's biological children

I don't know what assets your father had besides his checking account. For example, did he own land? If so, how was it titled? If he owned it jointly with your stepmother, then the land would have passed to her on his death. What about cars? Anything else? Did he have life insurance? Retirement benefits? If so, who was the beneficiary? If he had something that passed outside of probate to you as a named beneficiary (like life insurance, retirement or possibly a certificate of deposit or POD (payable on death) account at a bank, then these assets would pass to you.

While it may be unfortunate that your step-mother is not sharing information, there is a simple solution. Go to the clerk of the probate court in the county/state where your father resided at the time of his death. See if an estate has been probated by your stepmother. If so, make a copy of what is in there. I suggest that you pay a probate attorney to review all of the documentation (there should be a preliminary inventory/inventory in the file if an estate has been probated).

If no estate is probated and at least 6 months have elapsed since the date of your father's death, then either you can apply to be the personal representative of your father's estate or you can ask the clerk of court to appoint a public administrator. The personal representative will have the authority to know what is in the estate, pay the bills and then divide the rest to your stepmother and your father's children. However, before you invest this much trouble, make sure that your father has a substantial estate which would pass to you.

The spouse gets a spousal share, before any creditors are paid. After the bills are paid, your step-mother gets the first $30,000-$50,000 in personal property plus 1/3 of the remainder. You children get the other 2/3rds. The probelm is that I don't know what assets your father has and if it will all be exhausted by the bills and your step-mother's portion, leaving you with nothing anyway..

I have set forth the relevant provisions of the North Carolina law concerning intestacy and the spousal share for you:

29‑14. Share of surviving spouse.

(a) Real Property. The share of the surviving spouse in the real property is:

(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, a one‑half undivided interest in the real property;

(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children, a one‑third undivided interest in the real property;

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by one or more parents, a one‑half undivided interest in the real property;

(4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, or by a parent, all the real property.

(b) Personal Property. The share of the surviving spouse in the personal property is:

(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, and the net personal property does not exceed thirty thousand dollars ($30,000) in value, all of the personal property; if the net personal property exceeds thirty thousand dollars ($30,000) in value, the sum of thirty thousand dollars ($30,000) plus one half of the balance of the personal property;

(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, and the net personal property does not exceed thirty thousand dollars ($30,000) in value, all of the personal property; if the net personal property exceeds thirty thousand dollars ($30,000) in value, the sum of thirty thousand dollars ($30,000) plus one third of the balance of the personal property;

(3) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, but is survived by one or more parents, and the net personal property does not exceed fifty thousand dollars ($50,000) in value, all of the personal property; if the net personal property exceeds fifty thousand dollars ($50,000) in value, the sum of fifty thousand dollars ($50,000) plus one half of the balance of the personal property;

(4) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, all of the personal property.

(c) When an equitable distribution of property is awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent, the share of the surviving spouse determined under subsections (a) and (b) of this section shall be first determined as though no property had been awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent, and then reduced by the net value of the marital estate awarded to the surviving spouse pursuant to G.S. 50‑20 subsequent to the death of the decedent.

29‑15. Shares of others than surviving spouse.

Those persons surviving the intestate, other than the surviving spouse, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, as follows:

(1) If the intestate is survived by only one child or by only one lineal descendant of only one deceased child, that person shall take the entire net estate or share, but if the intestate is survived by two or more lineal descendants of only one deceased child, they shall take as provided in G.S. 29‑16; or

(2) If the intestate is survived by two or more children or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, they shall take as provided in G.S. 29‑16; or

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share; or

(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29‑16; or

(5) If there is no one entitled to take under the preceding subdivisions of this section or under G.S. 29‑14,

a. The paternal grandparents shall take one half of the net estate in equal shares, or, if either is dead, the survivor shall take the entire one half of the net estate, and if neither paternal grandparent survives, then the paternal uncles and aunts of the intestate and the lineal descendants of deceased paternal uncles and aunts shall take said one half as provided in G.S. 29‑16; and

b. The maternal grandparents shall take the other one half in equal shares, or if either is dead, the survivor shall take the entire one half of the net estate, and if neither maternal grandparent survives, then the maternal uncles and aunts of the intestate and the lineal descendants of deceased maternal uncles and aunts shall take one half as provided in G.S. 29‑16; but

c. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the paternal side, then those of the maternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole; or

d. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the maternal side, then those on the paternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole.

29‑15. Shares of others than surviving spouse.

Those persons surviving the intestate, other than the surviving spouse, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, as follows:

(1) If the intestate is survived by only one child or by only one lineal descendant of only one deceased child, that person shall take the entire net estate or share, but if the intestate is survived by two or more lineal descendants of only one deceased child, they shall take as provided in G.S. 29‑16; or

(2) If the intestate is survived by two or more children or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, they shall take as provided in G.S. 29‑16; or

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share; or

(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29‑16; or

(5) If there is no one entitled to take under the preceding subdivisions of this section or under G.S. 29‑14,

a. The paternal grandparents shall take one half of the net estate in equal shares, or, if either is dead, the survivor shall take the entire one half of the net estate, and if neither paternal grandparent survives, then the paternal uncles and aunts of the intestate and the lineal descendants of deceased paternal uncles and aunts shall take said one half as provided in G.S. 29‑16; and

b. The maternal grandparents shall take the other one half in equal shares, or if either dead, the survivor shall take the entire one half of the net estate, and if neither maternal grandparent survives, then the maternal uncles and aunts of the intestate and the lineal descendants of deceased maternal uncles and aunts shall take one half as provided in G.S. 29‑16; but

c. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the paternal side, then those of the maternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole; or

d. If there is no grandparent and no uncle or aunt, or lineal descendant of a deceased uncle or aunt, on the maternal side, then those on the paternal side who otherwise would be entitled to take one half as hereinbefore provided in this subdivision shall take the whole.

30‑15. When spouse entitled to allowance.

Every surviving spouse of an intestate or of a testator, whether or not he or she has petitioned for an elective share, shall, unless the surviving spouse has forfeited his or her right thereto, as provided by law, be entitled, out of the personal property of the deceased spouse, to an allowance of the value of twenty thousand dollars ($20,000) for the surviving spouse's support for one year after the death of the deceased spouse. Such allowance shall be exempt from any lien, by judgment or execution, acquired against the property of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving spouse.

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Answered on 8/21/11, 10:01 pm

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