Forest City, NC asked in Probate for North Carolina

Q: Do we need a probate lawyer if there was no will,but everyone agrees we get the personal property? We live in NC.

Husband and I lived with his dad for several years. He has bought things through the years that he says is for us (our household.) Example: dishes,furniture,computer,outdoor tools,his car...mainly stuff to run our home. He stated several times these things were for us as the other siblings could afford to buy these things. If he dies without a will, would these things go to us or would we have to spilt the value with any of my husbands sibilings?

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2 Lawyer Answers
Amanda Bowden Johnson
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Answered
  • Jacksonville, NC
  • Licensed in North Carolina

A: If he dies without a will his property will be divided according to intestate succession meaning the siblings could take a share if they wanted. Dad's verbally expressed wishes are virtually meaningless. To avoid confusion and headaches in the future, dad should be encouraged to have a will done. For an estate like you describe, it likely would not be an expensive proposition - a couple of hundred bucks or less. Any more than that and dad would likely be getting ripped off. Good luck to you!

Rachel Lea Hunter
Rachel Lea Hunter
Answered
  • Estate Planning Lawyer
  • Cary, NC
  • Licensed in North Carolina

A: It depends. Did the father-in-law make gifts to you and your husband during his lifetime of dishes, furniture and so on? It does not matter who paid for it but whether the property was given to you or not. If the father-in-law has bought things and given them to you for use, then a gift is a gift. It is yours to keep and need not be distributed between your husband and his siblings once father-in-law dies.

If the father-in-law has bought items and keeps them then if he intends for you and your husband to have them on his death then he needs to make a will and say this. I don't know what you mean by "everyone agrees." "Everyone's" agreement is irrelevant if your father-in-law is still alive. And "everyone" being in agreement now means nothing. People have a funny way of changing once a death occurs. All of a sudden they are going to want a piece of what their daddy allegedly gave to you. So father-in-law needs to make a will.

You ask a second question as to whether you need a probate lawyer. If the father-in-law has died then an estate may need to be probated for him if there were probate assets titled solely in father-in-law's name. The question of whether you need a lawyer or not depends on what assets the father-in-law owned at the time of his death. You do not need a lawyer for probate but it may be useful to at least consult with a probate attorney who practices in the county/state where your father-in-law resided at his time of death (where you are at is irrelevant - where did your father-in-law live if he died)?)

If father-in-law had no will, then any land or personal property actually owned by your father-in-law (not any prior gifts to you) would be equally divided between your husband and his siblings (assuming your father-in-law did not have a wife who survived him) once the debts of the estate for your father-in-law are paid. What assets did your father-in-law own? How were these things titled? Some assets are not probate assets, like life insurance or joint checking accounts. Anything with a named, designated beneficiary would be a non-probate asset.

Your post-really is unclear - I cannot tell if father-in-law is living or dead. If alive, father-in-law needs to make a will and also needs a financial and healthcare power of attorney and a living will. Even if "everyone" agrees, its better to make this crystal clear and have a will so there will be no arguments when father-in-law dies. If father-in-law is in NC and if he is mentally competent, have father-in-law contact me at rachelforjustice@hotmail.com if he is interested in having a will and the other necessary documents prepared.

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