Legal Question in Wills and Trusts in North Carolina

I live on my moms propery in nc, she lives in wv and is married. she has willed the property to me at her death, does it fall to me or her husband? and if it falls to him, can he do anything with it without my permission?

Asked on 8/02/11, 10:14 am

1 Answer from Attorneys

I do not know how the property is titled. I also don't know what West Virginia law provides.

Assuming that the NC property is titled just in your mother's name and that there is enough property in West Virginia to satisfy any claims for a spousal share and any other creditors, then the property would pass to you. If there is not enough property to satisfy any claims, heirs do not get to keep stuff and not pay the creditors. In that event, the personal representative of your mother's estate would be able to petition the court to sell any of her property and use the funds to pay off any creditors. Then, if there is anything left, it would pass to you.

If the NC property is owned by your mother and her husband as husband and wife, then the land will automatically pass to the husband upon your mother's death if she died first and what her will says about the property does not matter. Wills only serve to direct the disposition of probate property. If land is owned as a tenancy by the entirety then the land is a non-probate asset.

In a really rare case where your mother owns the land jointly with someone other than her husband as a tenant in common, then her share of the property would pass as pere her will and you would receive 1/2 of the property. Again, it depends on what else your mother owns and what other claims there are to know if you will get the property.

You might want to check with a West Virginia probate attorney. The laws govrening the disposition of your mother's property will be governed by West Virginia law. not NC law.

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Answered on 8/02/11, 11:39 am

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