Dying Without Will - Who Gets the Property

A will is a legal document that directs what happens to a person’s assets and property after their death. In North Carolina, the estate of an individual who dies without a will is distributed according to the NC Intestate Succession Act. Intestate probate is more expensive and time consuming than the probate process that occurs when a valid will is in place, and often produces unfortunate situations that would not have been the wishes of the deceased.

Many North Carolina families have lost land that had been theirs for generations because no wills were in place at the time of the owners’ deaths. Under the NC Intestate Succession Act, intestate property is divided up among legal heirs according to the type and number of surviving relatives the deceased left behind. The list of legal heirs may include a spouse, parents, children, grandchildren and great-grandchildren.

In the case of real property (defined as land and any structures on that land) if the Intestate Succession Act applies then the deceased’s heirs each receive a fractional interest in the property. If those heirs pass away without a will in place, then their heirs will also inherit fractional interest in the property. In this manner, the ownership of a piece of property can become hopelessly complex. The result is that many people who do not live on the land own a fractional interest in the property. This situation makes the property vulnerable to a forced sale.

In many instances, involuntary land loss has occurred because one of the fractional owners has forced the other owners to sell. As the law currently stands, any co-owner can seek the sale of a piece of property regardless of the size the interest they own. This means that someone who owns even a small interest in a piece of property can force a sell, even if the people who are actually living on the land do not want to sell it. This leads to the involuntary relinquishment of family land to the highest bidder. Prospective buyers who are not family members but have a financial motive often approach heirs who own a fractional interest and offer them buy-outs. In many cases, heirs who sold their fractional interest did not previously realize that they owned any piece of the property, and may not have understood their actions could lead to the forced sale of the land.

This problem of involuntary land loss has affected a disproportionately high number of African American families. In his article Reconstruction to Deconstruction: Undermining Black Land Ownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, Thomas W. Mitchell, (Northwestern University School of Law, Vol., 95, No. 2) estimated that, since the signing of the Emancipation Proclamation over 150 years ago, African Americans have lost ownership of tens of millions of acres of land, much of it involuntarily, through the process of forced sales.

Regardless of race, any individual who dies without a will leaves their estate to be divided up according to the law, and not their own wishes. If you do not currently have a will, consult with an attorney to see how you can protect your real property and other assets for successive generations.

Clement Law Firm, Asheville, NC
www.eclementlaw.com * 828-281-8160