North Carolina State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

North Carolina General Statutes
Probate jurisdiction rests with the Superior Court
Probate laws are primarily under Chapter 47 and Chapter 31

Minimum age requirement to:

Distribute property by will: 18 (Section 31-1)
Which minor gets property: 18 to 21

Holographic will recognized (Section 31-3.4)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Section 105-32.2)
State gift tax:Inheritance tax: No inheritance tax (Section 105-32.2)
- Imposes a state gift tax(Section 105-32.2)
- Anatomical Gift Act (Section 130A-402)
Inheritance tax: No inheritance tax (Section 105-32.2)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 29-14 to 29-15)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - If only one surviving child, then $30,000 (taken from personal property, if any) and one-half (1/2) of your estate to the surviving spouse, and the other one-half (1/2) of your estate, split equally among your children or to their children in accordance to their per stirpes share, and
  - If more than one surviving child, then $30,000 (taken from personal property, if any) and one-third (1/3) of your estate to the surviving spouse, and two-thirds (2/3) of your estate, split equally among your children or to their children in accordance to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - If only one surviving child, then $30,000 (taken from personal property, if any) and one-half (1/2) of your estate to the surviving spouse, and the other one-half (1/2) of your estate, split equally among your children or to their children in accordance to their per stirpes share, and
    - If more than one surviving child, then $30,000 (taken from personal property, if any) and one-third (1/3) of your estate to the surviving spouse, and two-thirds (2/3) of your estate, split equally among your children or to their children in accordance to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - $50,000 (taken from personal property, if any) and one-half (1/2) of your estate to your surviving spouse, and
      - the other one-half (1/2) of your estate is split equally among the surviving parents
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents and the other one-half (1/2) to paternal grandparents. If none, then to your next of kin

Who must be named as a beneficiary in your will:

Surviving spouse (Section 31-5.5), andChildren, born or adopted (Section 29-30)
- Surviving spouse must be given either:
  - If there are one or no children, then the surviving spouse gets one-half (1/2) of your estate
  - If there are two or more children or grandchildren, then the surviving spouse gets one-third (1/3)
  - Surviving spouse may choose a life estate of one-third (1/3) of all real estate you owned on your death; see statute (Section 29-30 and 30-3.1)
Children, born or adopted (Section 29-30)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced spouse (Section 31-5.4)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will (Section 31-5.3)

Out of state executors: Must appoint an in-state agent to accept legal papers (Section 28A-4-2)

Witnesses:

Minimum number of witnesses required: Two (Section 31-3.3)
Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void, unless there are two other disinterested witnesses (Section 31-10)
Requirements to be a witness, witnesses must:
- be an adult or a notary public,
- not have a claim against your estate on your death,
- not be related to you by blood or marriage,
- not be an owner, operator, or employee of a healthcare institution where you are a patient,
- not be entitled to anything in your will, and
- not be finically responsible for your healthcare

Property ownership (Sections 39-7+):

Common law state
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is recognized in this state, but not for personal property
Tenancy in common and joint tenancy are recognized in this state

Other types of wills:

Self-proving wills recognized: Yes, recognized (Section 31-11.6)
Living will: Declaration of a Desire for a Natural Death (Section 90-23-321) requires certification in writing that you are in a terminal condition and death will occur within a relatively short period of time without life-sustaining medical care
Health Care Power of Attorney (Section 32A-2-25)
Durable Power of Attorney (Section 32A-8 to 32A-14)