In life, we really don’t get to make too many of our own decisions. We will always have limitations on our choices, whether they are limits set by people, laws or other factors, such as health, wealth and personality.
I may want to eat a high-fat, cholesterol-laden meal every night, but I know what it will do to my body, so I decide not to. Now if I decide to, I’ll enjoy it, but only for a few years until I die.
If I die with a will, I have made the choices of what I want to happen to the stuff I’ve accumulated, the cash in my bank account, my house and other investment properties.
If I die without a will, called “intestate,” then ol’ Aunt Virginia will walk in and spoil the party. She — the state court system — is going to tell all my loved ones who gets what of my stuff. I live in Virginia, but you could have an Aunt Maryland or an Uncle D.C. who might do the same for you.
Now, there’s a funny thing about estate law — it might not be fair, or what you and I would call fair. Every state has its own set of estate laws, and if you die without a will, all the decisions about your property (real and personal) will be made by the probate court.
Obviously, the prudent step to avoid all the hassle of estate court decisions is to have a will. If your loved one dies without a will, then you have to understand what the court is about to do to all the belongings that person has left.
I had a reader ask me how to proceed in selling his mother’s trailer and property. His dear old mom had died without a will, so he and the siblings wanted to just step in, sell the property to a neighbor and split the proceeds. Sounds fair and equitable, right? Not so. He first should go to Cornell University Law School’s Legal Information Institute (www.law.cornell.edu) and look up his state’s probate laws.
At the site, click the search button, type in “probate,” click the search button again, then click Statutes by Topic. Finally, click “probate” in the list of topics, and, voila, you have a complete listing of all the state probate laws at your fingertips.
I would make one overriding suggestion to all reading these words: Don’t be stupid. The great cowboy philosopher John Wayne reportedly said: “Life is hard, but it’s harder if you’re stupid.” Guide your life with these words: Don’t take the law into your own hands.
As states create their own versions of probate law, there is a Uniform Probate Code, which has shaped state law in this field.
According to the Legal Information Institute: “It includes provisions dealing with affairs and estates of the deceased and laws dealing with specified nontestamentary transfers, like trusts and their administration. The theory behind the code is that wills and trusts are in close relationship and thus in need of unification. Since its creation, over thirty percent of states have adopted the Code substantially in whole.”
So far, only 16 states have adopted this code completely into their own estate law structure, according to the LII list. Maryland, Virginia and the District are among the 35 other states that have individual interpretations, especially when it comes to the passage of real estate from the deceased to the heirs.
Unlike personal property, the residency of the deceased does not control the disbursement of real property.
For example, if Grandpa dies in his personal residence in North Carolina, all his personal property, wherever it is located, is disbursed according to North Carolina probate law. The house he owns in South Carolina, though, is governed by that state’s probate laws.
I found this very eye-opening information in a pamphlet by attorney Carol A. Schwab, who explains all of this in “Who Gets Your Property If You Die Without a Will in North Carolina?”
The online version of her brochure was created for the North Carolina Cooperative Extension Service provided through North Carolina State University in Raleigh.
It serves as a good example of how a family can really get in a tiff if they rely on the state to disburse property instead of using a will.
Here’s what happens to an estate of someone who dies in North Carolina when there is no will. This interests me greatly since I still have family who live there.
“In North Carolina, if you die without a will and leave behind a spouse and children, (or descendants of deceased children) your spouse will take the first $30,000 in personal property plus one-third the remainder of your net estate. The remaining two-thirds will be divided equally among your children,” Ms. Schwab writes.
I don’t know about you, but that’s not how I intended to leave my belongings to my wife — and she would curse my grave if I left her in such a situation. To gain control back from her children, she may be required to buy her own house back if the house was not held in title appropriately.
When you consider the nuances of a blended family, where two families have married with his, hers and their children, you could see how this could deteriorate quickly into a legal horror story.
Suffice it to say, this is serious stuff. I’ve seen otherwise sane, loving families go crazy when it comes to inheritance time.
Call an attorney, get a will, lay out what you want to happen with your property, and file it away in a safe place. It just makes sense.
M. Anthony Carr has written about real estate for more than 15 years. Contact him by e-mail (firstname.lastname@example.org).