NORTH CAROLINA WILLS PROFESSOR ALFRED L. BROPHY UNIVERSITY OF ALABAMA SCHOOL OF LAW INTESTACY A. Intestacy v. Testacy 1. Vocabulary o When somebody dies without a will, the property is distributed through ______________________________. o When somebody has a valid will, we call the person a ______________________________. o Somebody who dies without a will is called the ______________________________ or the decedent. o The people who are entitled to receive property under intestacy are known as heirs. If there is a valid will, the people who take are called devisees. o Probate Estate: The property that passes either by intestacy or by will. o Non-Probate Estate: The property that passes outside of the will. 2. Partial Intestacy o If a will does not dispose of all the testator’s property. o The property not distributed by will is distributed according to the rules of intestacy. Exam Tip 1: North Carolina bar examiners have tested on this in the past. B. Distribution of Intestate’s Real Property 1. Share When There is a Surviving Spouse Exam Tip 2: First, look to see if there is a surviving spouse. That spouse will take one-third, one-half, or 100% of the real property depending on the scenario of other survivors. Note 1: North Carolina has different rules for distributing an intestate’s real property and personal property. a. Are there surviving issue (children or descendants of children)? ▪ Surviving spouse and no surviving issue: The surviving spouse takes ______________________________ of the real property. ▪ Surviving spouse and ONE surviving child (or surviving issue of that child): The surviving spouse takes ______________________________ of the real property. The surviving child or issue takes the other half.
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NORTH CAROLINA WILLS PROFESSOR ALFRED L. BROPHY
UNIVERSITY OF ALABAMA SCHOOL OF LAW
INTESTACY
A. Intestacy v. Testacy
1. Vocabulary
o When somebody dies without a will, the property is distributed through
______________________________.
o When somebody has a valid will, we call the person a ______________________________.
o Somebody who dies without a will is called the ______________________________ or the
decedent.
o The people who are entitled to receive property under intestacy are known as heirs. If there
is a valid will, the people who take are called devisees.
o Probate Estate: The property that passes either by intestacy or by will.
o Non-Probate Estate: The property that passes outside of the will.
2. Partial Intestacy
o If a will does not dispose of all the testator’s property.
o The property not distributed by will is distributed according to the rules of intestacy.
Exam Tip 1: North Carolina bar examiners have tested on this in the past.
B. Distribution of Intestate’s Real Property
1. Share When There is a Surviving Spouse
Exam Tip 2: First, look to see if there is a surviving spouse. That spouse will take one-third, one-half, or 100% of the real property depending on the scenario of other survivors.
Note 1: North Carolina has different rules for distributing an intestate’s real property and personal property.
a. Are there surviving issue (children or descendants of children)?
▪ Surviving spouse and no surviving issue: The surviving spouse takes
______________________________ of the real property.
▪ Surviving spouse and ONE surviving child (or surviving issue of that child): The surviving
spouse takes ______________________________ of the real property. The surviving
Note 2: A surviving child or issue cuts off the ability of parents and collateral relatives to inherit from the intestate decedent.
▪ Surviving spouse and TWO OR MORE surviving children (or issue): The surviving spouse
takes a one-third interest in the real property. The surviving children share the
remaining two-thirds interest.
b. Are there surviving parents?
▪ No surviving children (or issue of children), but one or more surviving parents of the
decedent: The surviving spouse takes a ______________________________ share of
the decedent’s real property. The other half goes to the decedent’s surviving parent or
parents.
▪ No children and no surviving parents: The surviving spouse takes
______________________________ of the real property.
Note 3: Property owned by the surviving spouse as a joint tenant or tenant by the entirety with the decedent: The property passes outside of the probate system and is not governed by the rules of intestacy. It goes immediately to the surviving spouse.
2. What if There is No Surviving Spouse?
o No surviving spouse but one or more surviving children: The surviving children or issue
takes ______________________________ of the real property.
o No surviving spouse and no issue: The surviving parents take the real property in equal
shares.
o No surviving spouse and no issue and no surviving parents: Look to the issue of the
decedent’s parents (i.e., siblings and issue of siblings).
o No surviving spouse and no issue and no surviving parents and no issue of parents: Look
up to the level of the grandparents. If there are no surviving grandparents, then look to
issue of the grandparents.
C. Distribution of Intestate’s Personal Property
1. Is there a surviving spouse?
o The surviving spouse takes the first $______________________________ of personal
property.
2. If there is more than $60,000 in personal property in the estate:
o Surviving spouse and ONE surviving child (or surviving issue of that child): The surviving
spouse takes the first $60,000 plus half of the remaining personal property.
o Surviving spouse and TWO OR MORE surviving children (or surviving issue): The surviving
spouse takes the first $60,000 and ______________________________ of the remaining
personal property. The surviving children or issue take the remaining two-thirds of the
o Surviving spouse and surviving parent but no surviving children: The surviving spouse takes
the first $______________________________, plus one-half of the remaining personal
property. The parent or parents take the remaining one-half of the personal property.
o Surviving spouse and no surviving issue and no surviving parents: The surviving spouse
gets all of the personal property.
D. Surviving Spouse
1. Marriage Requirement
o For a surviving spouse to take under the intestacy statute, the couple must have been
married.
Exam Tip 3: The exam may test your recognition of couples who are married but are on their way to divorce. If the divorce is finalized, then a spouse can no longer be a “surviving spouse” for intestacy purposes.
o A spouse who has willfully and without cause ______________________________ another
is not entitled to inherit through intestacy. The abandoning spouse is not considered a
surviving spouse for purposes of intestacy.
o Generally, separated spouses or spouses in the process of getting a divorce are considered
to be spouses until the final decree of ______________________________ for purposes of
intestate succession.
2. Survival Requirement
o North Carolina has adopted the Revised Simultaneous Death Act. It requires that an heir be
proven by ______________________________ evidence to have survived the decedent by
______________________________ hours to take by intestacy or by will. (This is the
default rule. It can be altered by a will.)
Example 1: The will of JFK, Jr. altered the default rule by requiring that a
beneficiary survive by six months.
ISSUE
A. Issue
1. Qualifications
o Lineal descendants: People descended in the immediate line from the decedent, i.e.,
children, grandchildren, great-grandchildren, etc.
o Does not include siblings, nieces and nephews, and other collateral relatives.
o A child born during a marriage is ______________________________ to be the marital child
of the parties to the marriage.
▪ In North Carolina, a child born within 10 months after the intestate’s death to that
man’s wife is ______________________________ to be the issue of that man.
In North Carolina, a non-marital child can inherit from and through a decedent if:
o Decedent was judged to be the father of the child by ______________________________
evidence;
o Decedent acknowledged himself to be the father in writing executed and acknowledged
before a certifying officer and during his lifetime and the child’s lifetime;
o Decedent died within ______________________________ of the child’s birth and can be
established through ______________________________ testing as the child’s father; OR
o Decedent acknowledged the child in his will.
5. Posthumously Conceived Children and Assisted Reproduction Technology
o A child born within ______________________________ months of a decedent’s death to
the decedent’s surviving spouse is presumed to be the decedent’s issue and inherits
intestate as if the child was born during the father’s life.
o In North Carolina, any child born as the result of reproductive technology is considered
legally the same as a naturally conceived marital child of a husband and wife requesting and
consenting in writing to the use of such technique.
Exam Tip 4: You may see these issues in the context of determining whether the child is entitled to Social Security benefits. That question is determined based on North Carolina law.
CALCULATING SHARES
A. Calculating Issue Shares: Per Capita at Each Generation
Exam Tip 5: This topic frequently appears on the exam.
Like the Uniform Probate Code, North Carolina uses the per capita at each generation approach to
distribution. This treats people who are equally distant from the decedent in an
______________________________fashion.
Example 4: Decedent has two surviving children and no surviving spouse. If
they are the only survivors, they are each entitled to a one-half share.
Example 5: A grandparent decedent passes away with no surviving spouse.
The decedent had three children. If all three children were still alive, each
would be entitled to a 1/3 share. If there were any grandchildren, the
grandchildren would not take because their share is represented by their parent.
• Procedure:
o First, divide the property into equal shares at the first generation where there is a surviving
o A holographic will does not have to be ______________________________ for it to be
valid. The testator must write her ______________________________ in her handwriting,
but that can appear in the body of the will.
o A holographic will does not require witnesses.
o Clear testamentary intent: It must be clear that the document was intended by the testator
to be a will.
o At probate, a holographic will requires:
▪ The testimony of at least ______________________________ competent witnesses
that the will, along with the name of the testator, is written entirely in the testator’s
handwriting; and
▪ The testimony of ______________________________ witness that the will was found
after the testator’s death among her valuable papers or effects, or otherwise in a place
of safekeeping.
OTHER TYPES OF WILLS; CODICILS; WILL SUBSTITUTES
A. Self-Proved Will
• Includes notarized signatures of the testator and witnesses, acknowledging the will.
• A self-proved will facilitates probate: There is no need for further evidence of witnesses at a
formal probate hearing.
B. Nuncupative (Oral) Wills
Exam Tip 7: Bar examiners have tested on the topic several times.
• A nuncupative will is:
o Made ______________________________ by someone in their last sickness or imminent
peril of death, who in fact does not survive that sickness or peril; and
o Declared to be that person’s will before ______________________________ competent
witnesses who are simultaneously ______________________________ and asked to
witness the will.
• Only ______________________________ property can be disposed of by a nuncupative will.
• It must be probated within ______________________________ months from the time of
making unless it was reduced to writing within ______________________________ days of
when it was made.
C. Codicils
• A codicil is a ______________________________ to a will that alters, amends, or modifies it.
Editor's Note 1: The professor intended to say, “In North Carolina, a holographic codicil to an attested will and an attested codicil to a holographic will are valid.”
allows us to probate the second will BUT, it must be shown that reviving the
second will would be more in keeping with the testator’s desires than would
being intestate.
Exam Tip 8: If you see an otherwise valid revocation based upon a mistake (whether of law or fact), begin your analysis by stating the DRR rule.
E. Will Contracts
1. Examples
o Contracts to ______________________________ a will: (e.g., “If you take care of me for
the rest of my life, I will leave you property.”)
o Contracts not to revoke a will: (e.g., a married couple makes a mutual contract that
whoever survives will not revoke their will and they will leave property to their children
together.)
o Contracts to die ______________________________: (e.g., “I promise I won’t leave
property to someone else. I will allow my property to pass by intestacy.”)
Exam Tip 9: North Carolina bar examiners have asked several questions on this topic in the recent past. Apply principles of contract law when faced with a question involving a will contract.
2. Writing requirement
o The writing may be a will that states the material provisions of the contract; or
o A separate writing with the material terms of the contract; or
o Reference in a will to such a contract and extrinsic evidence proves the terms.
• Look for ______________________________ for the promise.
Exam Tip 10: You may see will contracts in the following contexts: • Joint wills (e.g., a married couple signs the same document); • Reciprocal wills (wills with identical or reciprocal provisions). If you see this fact pattern, analyze if there is a contract between the parties to continue to have that will provision. Look for clear evidence of intent not to revoke.
CONSTRUCTION AND INTERPRETATION OF WILLS
A. Definitions
• A gift of real or personal property is a called a ______________________________.
o Specific devise:
Example 15: “I leave my car to my next-door neighbor.”
o Add all those together; then give the surviving spouse a percentage of that total based on
the ______________________________.
Exam Tip 12: This has been recently revised in North Carolina. Bar examiners might test on this change.
o Surviving spouse’s share:
▪ If the marriage is less than five years: 15% of the decedent’s total assets;
▪ At least five years but less than 10 years: ______________________________%;
▪ At least 10 years but less than 15 years: 33%;
▪ 15 years or more: ______________________________% of the decedent’s total assets.
o Net property passing to the surviving spouse includes:
▪ Property devised to spouse or passing through ______________________________ or
beneficiary designation;
▪ Surviving spouse’s interest in ______________________________;
▪ Property transferred during life to the surviving spouse for which there is a signed
acknowledgement;
▪ Property awarded posthumously pursuant to an equitable distribution claim;
▪ Property held in a spousal trust.
Example 29: A husband dies with the following assets: (i) $100,000 in life
insurance proceeds, payable to his surviving spouse, (ii) non-marital real
property worth $500,000, devised to his adult children in his will, and
(iii) $50,000 in stocks, devised to his children. The husband’s Total Net Assets
equal $650,000. The couple have been married 30 years; the surviving spouse’s
applicable share of the Total Net Assets is 50%, or $325,000. The property
passing to the surviving spouse is $100,000 (the insurance policy). Therefore,
the surviving spouse is entitled to an elective share of $225,000.
o The spouse may waive her right to the elective share:
▪ Fair and reasonable disclosure of the decedent’s property; unless
▪ The spouse has waived her right to the disclosure.
Note 10: A will executed before marriage is not revoked upon marriage; the spouse is entitled to an elective share. That is the extent of her protection.
Note 11: How North Carolina treats a spouse who gets married after the execution of a will is different from how it treats children born after the execution of a will.
B. Gifts to Children
1. Advancements
o Advancements apply only to ______________________________, not wills.
▪ There does not need to be actual fraud—only abuse of a
______________________________ relationship to gain an advantage.
o Remedy: Constructive trust
7. Forfeiture Clauses
o A no-contest clause is an express clause in a will that disinherits a beneficiary who
challenges a will.
o They are generally enforceable, but are not enforced against people who in good faith and
with probable cause challenge a will.
8. Provisions in Restraint of Marriage
o A broad restraint against marriage (e.g., forfeiture of a gift if a beneficiary ever marries) is
generally void.
o A reasonable restriction on marriage (e.g., a restriction against an ill-advised marriage to a
specific individual) is valid.
PROBATE AND ADMINISTRATION
Exam Tip 17: Bar examiners have occasionally tested on the workings of probate and administration because it is an important part of the practice of lawyers whose practice is wills and trusts.
A. Vocabulary
• Probate: The judicial process that establishes the validity of a will, determines who the
devisees/heirs are, issues letters to the executor (or, if intestate, the administrator) of the
estate, allowing the person to (i) give notice to ______________________________, (ii) collect
money owed to the estate, (iii) pay creditors, (iv) distribute property to the heirs or
beneficiaries.
• “Probate” deals only with property subject to a will; “administration” deals with intestate
property.
• “Probate” also deals only with probate property; it does not deal with nonprobate property.
• Nonprobate property: Includes property passing by joint tenancy or tenancy by the entirety;
property paid pursuant to a ______________________________ policy; pension plan proceeds;
property subject to a revocable trust.
B. Procedure
Exam Tip 18: The North Carolina examiners are very likely to ask a question in this area.
▪ Exclusive: Power to appoint to anyone except a group, e.g., the donee herself, her
creditors, or her estate;
▪ Nonexclusive: Allows the donee to appoint among a class of people, e.g., grandchildren;
If the donee fails to exercise the power, the court will imply a gift to the objects of the
special power.
Example 36: A trust creating the power to give issue or children the power to
redirect property at a later date. It extends control over the trust:
Testamentary trust: A trust established by a will, giving lifetime income to each
of the testator’s children and then giving the children the power to redirect or
appoint, within a class, who will be the next generation of takers.
4. Exercise of the power of appointment
o Testamentary powers may be exercised only by ______________________________.
o In North Carolina, any general devise includes property subject to a power of appointment.
▪ Residuary clause: Exercises a general power of appointment if:
• The power is a general power of appointment;
• There is no taker in ______________________________;
• There is no contrary intent in the document creating the power; and
• The power has not been previously released by the donee.
▪ Blanket exercise clause (e.g., “…including any property over which I have power of
appointment”): Exercises the power of appointment unless the donor required a
______________________________ of the power.
Exam Tip 19: With questions on power of appointment, be prepared to answer whether the power has been exercised, and if so, whether it was properly exercised. Be on the lookout for a residuary clause and also for a “blanket exercise clause.”
Note 15: If a decedent has a presently exercisable power of appointment, that gets added to the total net assets of the decedent for purposes of the elective share.
B. Powers of Attorney
Exam Tip 20: This topic frequently shows up on the exam.
1. Definition: An ______________________________ for someone else (an “attorney in fact” or
“agent”) to act on behalf of the principal who executed the power.
2. Power of Attorney for Financial Matters
o General: Authorizes broad powers, such as those related to financial transactions, tax filings,
gifts. The power of attorney may even authorize agents to make gifts themselves.
o Special: E.g., to execute a deed to a particular piece of property.
o Allows an agent to make healthcare decisions for the principal when the principal becomes
______________________________;
o A health care power of attorney must be:
▪ In ______________________________;
▪ ______________________________ by the individual who is to receive care;
▪ In the presence of two qualified witnesses; and
▪ Notarized.
Note 16: General, special, and health care powers of attorney can be made durable powers of attorney (i.e., continue even if the grantor is incapacitated).
4. Scope of Authority: Fiduciary Duties
o Exercise of the powers for the ______________________________ of the principal;
o Hold separate the assets of the principal from the assets of the agent;
o Exercise ______________________________ care;
o Account for all transactions on behalf of the principal; and
o ______________________________ an accounting of administration when directed by a
court.
Example 37: The North Carolina general statutes provide a model form for a
durable power of attorney for financial matters. That form allows the principal
to give the agent the power to give herself a gift.