[NC] How is an estate divided under my father’s will between a surviving spouse and children?

Lexi, Chatbot

I understand that interpreting a will can be quite stressful. Can you tell me if the will is written in clear language or if there are any ambiguous terms?

Lexi, Chatbot

Have you had a chance to discuss the will with your family or any legal professionals?

Queeneth E. Esq

Hello and welcome to our service. My name is Queeneth. I am an attorney with over 8 years of legal experience. I will do my best to assist you today. First, I need to ask you a few questions to give you the best answer. (Kindly note that our conversation does not establish an attorney-client relationship.)

Which state or country is your father's will being probated in? Do you have a copy of the exact wording from the will regarding how the estate should be divided?

Queeneth E. Esq

Thank you for the feedback. Please allow me some time to prepare a response. I will get back to you shortly.

Queeneth E. Esq

Thank you for your patience. I can’t tell you which of those two meanings the will has without seeing the exact clause. But for North Carolina, there are a few big rules that matter more than the wording alone:

1. If the house is titled in both your father’s and mother’s names as spouses, North Carolina usually treats that as tenancy by the entirety, which means the surviving spouse takes the whole property by survivorship. In that situation, the house usually would not pass under your father’s will to you and your sister at all.
2. If the house is only in your father’s name, he can write a will leaving the house to you and your sister. But because he is still married, that does not necessarily mean your mother gets nothing. In North Carolina, a surviving spouse can claim an elective share of the estate. If they were married 15 years or more, that share is 50% of the total net assets; otherwise, the percentages are 15%, 25%, 33%, or 50% depending on length of marriage.

On top of that, a North Carolina surviving spouse who claims an elective share can also elect a life estate in one-third of the real estate, and can elect a life estate in the usual dwelling house occupied at death, together with related land and furnishings, unless those rights were waived.

North Carolina also gives a surviving spouse a $60,000 year’s allowance unless barred by law. So even if a will says “my daughters get everything,” that still does not safely mean your mother receives nothing.

Queeneth E. Esq

No - you should not assume your mother gets nothing just because the will leaves the house to you and your sister.

No - you should not assume you and your sister automatically get half-and-half either if the house is jointly owned by both spouses.

The answer depends first on how the house is titled, and second on the exact wording of the will. Since you said you are filling this in online in North Carolina, also make sure the execution is done correctly: an attested written will must be signed by your father and attested by at least two competent witnesses, and the witnesses must sign in his presence. (NC Gen Stat § 31-3.3)

The cleanest way to draft the house clause, if his goal is to leave the house to you and your sister, is usually something like:

"I devise my interest in the real property located at (full address), if I own any interest in that property at my death, to my daughters, (Name) and (Name), in equal shares, per stirpes."

But even with wording like that, your mother may still have surviving-spouse rights unless she has validly waived them in writing or is otherwise legally barred. (NC Gen Stat § 41-64)