Common Estate Planning Myth: “I don’t need a will because my spouse will inherit everything.”

In North Carolina, this is oftentimes false.  If the deceased dies without a will, the following distribution may take place:

• If the deceased is survived by a spouse but no descendants (meaning children or grandchildren), but the deceased has a living parent, the surviving spouse takes ½ the deceased’s real property, the first $100,000 of the deceased’s personal property, and ½ the remaining balance of the deceased’s personal property.
  

• If the deceased is survived by a spouse and only one child (or grandchildren, if that one child is deceased), the surviving spouse takes ½ the deceased’s real property, the first $60,000 of the deceased’s personal property, and ½ the remaining balance of the deceased’s personal property.
  

• If the deceased is survived by a spouse and two or more children (or grandchildren of a deceased child), the surviving spouse takes 1/3 the deceased’s real property, the first $60,000 of the deceased’s personal property, and 1/3 the remaining balance of the deceased’s personal property.  The descendants’ share would be split according to North Carolina law.
  

You can see the potential problems here.  Without a will, you may be inadvertently leaving your assets to people who do not need the assets.  If your parents are financially stable, perhaps the second ½ of your estate should go to your spouse.  If your children are minors, you would want your spouse to inherit your full estate to take care of your children.  If your children inherit the money as minors, they will not have access to it until age 18 without court approval.  If your children are financially stable adults, they may not need your estate as badly as your surviving spouse.  Finally, multiple people owning partial interests in the same real estate always presents problems.

There are only two ways to guarantee that your spouse inherits your entire estate: (1) you must not be survived by anyone other than your spouse (no descendants or parents), or (2) you create a simple will.