Why Have a Will? The Risk of Intestate Succession

Name: ESTATE PLANNING – Avoid Probate and Take Control of Your Future
Start: 2026-06-27T05:00:00-04:00
End: 2026-06-27
Location: Nellie's Southern Kitchen

Welcome to another insightful episode of the Elder Law Report, presented by McIntyre Elder Law. In this episode, attorneys Samantha Gordon and Jane Dearwester delve into a significant topic: the implications of probating an estate without a will. The discussion sheds light on what probate entails, why it can be a burdensome process, and the often-overlooked consequences of dying intestate, meaning without a will.

Probate: An Unpleasant Necessity

Probate is the legal process that occurs after someone passes away. During probate, the court is asked to distribute the deceased person’s assets. This distribution is based on whether the deceased left behind a Last Will & Testament. If there is no will, the court follows state laws to determine how the assets should be divided, a process that can be both time-consuming and expensive.

In North Carolina, probate can take anywhere from one to two years, especially in larger counties. This timeframe can take a financial and emotional toll on the deceased person’s loved ones. Probate can be particularly complicated if minor beneficiaries are involved, multiple properties need to be managed, or if the estate includes various assets that require careful distribution.

Probate can be made easier or bypassed altogether with a comprehensive estate plan.

The Consequences of Dying Intestate

When a person dies without a will, intestate succession occurs. In such cases, state legislators have predetermined how the deceased’s assets will be distributed. This distribution may not align with what most people expect or desire. For example, many married individuals assume that their spouse will automatically inherit everything upon their death. However, this is not always the case.

The law may divide the estate among the surviving spouse, children, and even parents or other next of kin, depending on the circumstances. This can lead to unexpected and potentially distressing outcomes, especially for the surviving spouse, who might not receive the entirety of the estate. The process can be further complicated if the deceased had children from a previous marriage, minor children, or if any children predeceased the parent.

The statutes governing intestate succession in North Carolina are extensive, running over 12 pages to cover various scenarios. This process involves a formula to determine who inherits based on the specific family situation of the deceased. This complexity underscores the importance of having a will to clearly dictate how one’s assets should be distributed, avoiding the automatic and often impersonal decisions made by the state.

The Risk of No Control: From Strangers to the State

There can potential consequences if no family member steps forward to administer the estate. In such cases, a public administrator, often a stranger appointed by the county, could be responsible for managing and distributing your estate. This person, who has no personal connection to the deceased, would handle everything from selling personal belongings to settling debts, which could lead to decisions that are not in line with what the deceased or their family would have wanted.

Moreover, if the deceased has no identifiable next of kin, their assets could ultimately go to the state under a principle known as escheat. This means that all the deceased’s belongings, including sentimental items and hard-earned savings, could end up in the hands of the government rather than benefiting friends, distant relatives, or charitable causes the deceased might have preferred.

The lack of a will also opens the door for creditors to claim against the estate, potentially leading to the sale of family homes or other significant assets to satisfy debts. This could result in the loss of a family’s heritage and security, further highlighting the necessity of having a will and a clear estate plan.

Simplifying the Process for Loved Ones

One of the key takeaways from this episode of the Elder Law Report is the importance of making the probate process as smooth as possible for loved ones left behind. Samantha and Jane discuss that a well-crafted estate plan, including a will, an significantly reduce the stress, cost, and time involved in probate. Such a plan provides a clear guide for the court and family members, ensuring that the deceased’s wishes are honored without unnecessary complications.

We encourage our readers and listeners to take proactive steps in planning their estates, which can include setting up trusts, designating beneficiaries on accounts, and using other legal tools to bypass the probate process entirely. This not only protects the assets but also spares family members from the emotional and financial burden of a lengthy court process during a time of grief.

Conclusion: The Importance of Planning

The importance of estate planning cannot be overstated. The process of probate, particularly without a will, can be lengthy, costly, and emotionally draining. By creating a will and establishing a comprehensive estate plan, individuals can ensure that their assets are distributed according to their wishes, avoid unnecessary legal battles, and provide peace of mind for their loved ones.

For those interested in learning more or needing assistance with their estate planning, McIntyre Elder Law offers free consultations to discuss how to protect assets, avoid probate, and create a plan that fits each individuals unique needs.

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McIntyre Elder Law is here to help. Schedule a consultation with one of our experienced attorneys by calling 888-999-6600 or visiting m c e l d e r l a w .c o m /s c h e d u l i n g. Let us provide the expertise and peace of mind that only a seasoned professional can offer.