A person who passes away and has a will dies testate. That person’s will distributes the property. But more than half of the U.S. population (including more than two-thirds of Black Americans) dies without a will—that is, intestate. Intestacy laws are the state-specific default rules that distribute property when a person passes away without a will. When that happens, the answer to the question “who gets what” depends on the decedent’s family situation.
Here is an example: Draymond passes away intestate, i.e., without a will. He has a spouse named Lala. He also has three living children: Stephen, Klay, and Andrew. In North Carolina, the intestacy laws distribute Draymond’s property as follows:
Lala gets one-third (33%) of Draymond’s real estate and a portion of his personal property.
Stephen, Klay, and Andrew are the heirs. (An heir is someone who takes property under intestacy; distinguish this from a devisee, which is someone who takes property under a will). Together, they get two-thirds (66.67%) of Draymond’s real estate (as well as any personal property remaining after Lala’s share). Generally, this means that each individual child gets 22% of Draymond’s real estate.
Here, the property is heir property--land that Stephen, Klay, and Andrew jointly own. None of them can sell the property on their own. Neither can any of them use the property as collateral for a mortgage.
Does this mean that the heirs can never sell the property? No. An owner of heir property can sell his interest without another’s permission. Consistent with this, any sibling who wants to keep the property can buy the other siblings out of their interests.
But what if a sibling or a group of siblings wants to sell the property outright? Does North Carolina law permit such a sale? The answer is yes, through a petition for partition. A sibling who files a petition for partition asks the court to sell the home and divide the proceeds equitably between the heirs (this is a partition by sale; there is also a “partition in kind,” which involves physically subdividing the property). The law requires heirs to be parties in the proceeding. See N.C. Gen. Stat. § 28A-17-4 (2019).
To return to the above example: Suppose Stephen wishes to sell the property. If Klay and Andrew oppose the sale, then Stephen may file a petition for partition. Stephen must give notice to Klay and Andrew so that they can become parties in the proceeding. If Stephen succeeds, he will sell the property and give his brothers their shares of the proceeds. As you can see, a petition for partition is an adversarial proceeding that may cause personal challenges between family members.
Primary Takeaway: Siblings who are joint heirs have several options. One option is to keep the property so that everyone can enjoy it equally. Another option is simply to let one of the siblings live on the property. (Note, though, the other heirs cannot collect rent). Yet another option is for all the siblings to agree to sell the property. If any sibling opposes the sale, an heir may attempt to sell the property through a petition for partition.
Smith Dominguez helps joint owners of heir property learn their rights and execute their goals. If you have questions about your heir property, call our office to set up a consultation.
About the Author
Ashwat Giri is a third-year law student at Campbell University School of Law. He is an editor at the school's law review journal, president of the Business Law Association and he interned with Smith Dominguez, PLLC for six weeks in the summer of 2021.