Dying without a will, also known as dying intestate, can create significant legal and financial complications, especially if the person who passed away owned real estate or other assets in multiple states, such as New York and North Carolina. The probate process must adhere to each state's laws, which can result in delays, increased expenses, and added stress for surviving family members. Whether you're planning your estate or administering someone else's, understanding how intestacy works across state lines is essential to avoiding these pitfalls and protecting your family's interests.
What Is Intestacy?
Intestacy refers to the legal process that occurs when someone dies without a valid will. In that situation, state laws step in to determine how the deceased person's property will be distributed. These rules are known as intestate succession laws, and they follow a specific order, typically giving priority to spouses and biological children, followed by more distant relatives, such as parents, siblings, or nieces and nephews.
Each state has its own intestate succession laws. That means if a person lived in North Carolina but owned a second home in New York, the two states may handle the distribution of those properties very differently. And when there is no will to provide direction, family members are left navigating a system they likely don't fully understand, with little room to correct unintended outcomes.
Multi-State Estates: Why Two Courts Get Involved
When someone owns real property in more than one state, probate proceedings must typically be opened in each state where the property is located. The court in the state where the person lived, called the domiciliary probate court, will handle the main estate proceeding. However, courts in other states where the person owned real estate will require what's known as ancillary probate.
For example, if a decedent lived in Charlotte, NC, but owned a rental property in upstate New York, the North Carolina court would oversee the primary probate process. However, New York's Surrogate's Court would need to open an ancillary probate case to transfer or sell the New York property. That means two sets of court filings, two judges, and often two lawyers, all of which increase costs and delays for the surviving family.
These multiple layers can be especially stressful for out-of-state heirs who may be unfamiliar with the laws of one or both jurisdictions. According to recent research, nearly two-thirds of American adults do not have a will, meaning these kinds of legal complications are more common than many families realize.
The Differences Between New York and North Carolina Intestacy Laws
Although both New York and North Carolina rely on similar principles to determine who inherits property when someone dies intestate, there are essential differences in how each state approaches the issue. For instance, in North Carolina, if someone dies, leaving behind a spouse and children, the estate is typically divided between the surviving spouse and the children.
In New York, the surviving spouse receives the first $50,000 of the estate plus half of the remaining balance, with the rest going to the children. These distinctions might sound minor, but they can lead to very different outcomes, especially when high-value real estate is involved. Additionally, the treatment of half-siblings, adopted children, or stepchildren may vary between the two states.
For multi-state estates, this means that different family members may inherit different assets based solely on the state in which the asset is located, a scenario that can often be confusing and sometimes emotionally charged.
The Impact on Real Estate
One of the most common and consequential assets in a multi-state estate is real estate, and it comes with its own set of rules. Under long-standing legal principles, real property is governed by the laws of the state where it is located. So, even if a person lived in North Carolina, any home, land, or commercial building they owned in New York is subject to New York real estate and probate laws, not North Carolina's.
This has two significant effects. First, it can change who inherits the property, depending on the state's intestacy laws. Second, it adds a layer of probate that cannot be avoided unless the property is placed in a trust or otherwise removed from the probate estate before death. Ancillary probate also entails additional court fees, paperwork, and, if the property needs to be sold, potential delays that can hinder financial planning for the estate or the surviving heirs.
Why Estate Planning Makes a Difference
The most effective way to prevent complications is to work with an estate planning attorney who understands the legal landscape in both New York and North Carolina. A well-drafted estate plan can significantly reduce the burden on surviving family members, minimize court involvement, and ensure that your wishes are carried out.
Establishing a revocable living trust, for example, allows real estate and other assets to pass outside the probate process altogether. This means that no ancillary probate is needed for out-of-state property, which can save thousands of dollars in legal and administrative fees and eliminate the need for months of waiting for court approvals. Trusts are also private documents, whereas wills, become part of the public record once submitted to probate court.
Additionally, clarifying your domicile can help ensure that the correct state's laws are applied to the bulk of your estate. Courts look at multiple factors to determine domicile, including voter registration, driver's license address, tax filings, and the location of your primary residence. Without these indicators being aligned, disputes may arise about which state should handle your estate, a costly disagreement that can usually be avoided with proper documentation.
Act Before It's Too Late
Dying without a will is never ideal, but when real estate or assets are spread across multiple states, the potential for confusion, expense, and conflict grows exponentially. New York and North Carolina each have their own rules, forms, and court procedures. If no planning is done, your family may be left to piece together a multi-state probate puzzle during one of the most difficult times in their lives.
By taking proactive steps to create a comprehensive estate plan that accounts for property in both states, you can ensure your wishes are honored, and your loved ones are protected.
Whether you're handling a loved one's estate or planning your own, we can guide you through the legal requirements with compassion, clarity, and precision. Contact us today to schedule a consultation.