The term probate refers to the formal legal process of administering an estate. In North Carolina, the Clerk of the Superior Court in the county where the decedent resided oversees the probate process.
Generally, probate is necessary only when the decedent owned property in his or her name alone. Often, individuals consult with an attorney and use estate planning to avoid having their estate go through probate after death. Common assets that do not need to go through probate include:
The person responsible for probating and administering an estate is referred to as the personal representative. If the decedent has a valid will, referred to as dying testate, the will usually names an executor, who will be the personal representative for the estate.
If the decedent died intestate—without a will—or there is no executor named or available, the Clerk of the Superior Court will name an administrator as the personal representative for the estate. Generally, the administrator is the surviving spouse, an adult child, or other beneficiary. North Carolina law specifies who is eligible to request appointment as administrator.
The personal representative of an estate has legal and fiduciary duties to collect and inventory assets and keep them safe; pay claims, debts, and taxes; and make distributions to settle the estate. The responsibilities are the same for both executors and administrators.
The process begins at the office of the Clerk of Superior Court in the decedent’s county of residence. Either the executor named in the will or a person qualified to be administrator submits an application to the clerk, requesting to be named as personal representative. The application must be accompanied by the will, if there is one, and a preliminary inventory of the estate property, including an estimated value, and a certified copy of the decedent's death certificate.
After the personal representative is authorized by the Clerk, notices to creditors are made according to specific requirements. In addition, within three months from the date of qualification, the personal representative is required to file a complete and accurate inventory of all real and personal property of the decedent, including descriptions and values, with the Clerk of the Superior Court.
The assets of the estate are put into an estate bank account and used to pay all debts, costs, and expenses, including bills, liens, funeral and burial expenses, and taxes. Additionally, state and federal income tax returns may need to be filed. For some estates, federal estate taxes may be due as well. North Carolina does not have estate or inheritance taxes.
After all costs of administration, taxes, and debts are paid, the personal representative distributes the remaining assets to the heirs and beneficiaries in accordance with the will or under the North Carolina law regarding intestate succession. When all payments have been made, the personal representative files a final accounting with the Clerk of the Superior Court. When the Clerk approves the final accounting, the personal representative is discharged from further responsibility for the estate.
In the case of small estates, North Carolina has a simplified process involving collection by affidavit that may be available. The process applies to estates with personal property valued at less than $20,000. The amount increases to $30,000 if the surviving spouse is the applicant and sole heir.
There is also a process called summary administration in North Carolina. If the surviving spouse is the sole heir of the decedent (whether or not the decedent had a will), the spouse may be able to proceed under summary administration without the formality of regular administration.
Both of the simplified processes are handled by the Clerk of the Superior Court.
Being the personal representative for an estate is a significant legal responsibility. With estates having substantial assets or more than a minimal amount of property, an attorney will make probating an estate a much less stressful responsibility for the personal representative. More importantly, having an attorney assist with probate will ensure that all legal requirements are met throughout the process and that all required forms and returns are filed.
In addition, if the decedent had an interest in or owned real estate in another state, it is possible the estate may have to go through a probate process in that state as well. An experienced North Carolina estate attorney will make sure that all legal requirements are met in North Carolina as well as in other states where the decedent had property.
The best way to ensure that your loved one’s estate is administered properly through the probate process and otherwise is to consult with an experienced probate law attorney. In North Carolina, our attorneys at the Twiford Law Firm are here to help. We offer a full range of services, including probate administration, wills, trusts, powers of attorney, and living wills.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.