After someone dies, the legal process begins to substantiate their will and determine who receives the assets of the deceased person’s estate. In many cases, the court must appoint a representative for the deceased person to gather the deceased person’s assets, pay debts and handle distribution of property to the heirs. The court-supervised administration of the estate is known as the probate process.
An administrator of the estate – an executor or executrix, personal representative or trustee – handles these duties according to procedures defined by North Carolina probate law and decisions handed down by a judge. The fiduciary’s fundamental duty is to protect the assets and interests of each of the estate’s beneficiaries, regardless of whether they have conflicting interests and desires. One way to protect those assets and interests and help the probate process go smoothly is to be organized and have the guidance of an experienced probate attorney.
The probate administration lawyers of Brady Cobin Law Group can help. Attorney Dan Brady is a North Carolina board-certified specialist in estate planning law. Because we have extensive experience with probate administration in North Carolina, we can ensure that everything is done correctly and that the process goes as smoothly as possible. We understand it can be a stressful process and we can take the burden off of you.
What is Probate Administration and How Does it Work?
Probate administration is the process of validating the will of a person who has died and carrying out its directives or administering the distribution of assets of an individual who has died without a will. Estate administration is the process of handling a person’s assets and debts after that person’s death.
When there is a will, “probating the will” refers to the process by which a court determines that the will is the final will and testament of the deceased individual and is legally valid for transferring ownership of property. If a will has been properly drafted and documented by an estate planning attorney, this is likely a simple process. Some wills are not valid because they lack the legal requirements of a valid will. Regardless, a will has no legal effect until it is probated by a court.
When a person dies without leaving a will, he or she is said to have died “intestate.” The laws of intestate succession provide the rules for distributing the property of people who die without a valid will. Most people who write a will leave their property to their immediate family, so intestacy laws generally distribute property in the same way.
If someone challenges a will, the legitimacy of purported heirs or the proposed distribution or sale of assets, the ensuing estate litigation can complicate the probate settlement process. As many find out, probate or estate litigation can strain and break family ties.
How Long Do You Have to File Probate After a Death?
Initiating probate administration requires:
- Determining whether there is a will and locating it.
- Filing the will with the Clerk of Superior Court in the county where the person resided before death.
- If there is no will, applying to the Clerk of Superior Court as the surviving spouse or another heir to be appointed administrator to handle the estate. That also requires a preliminary inventory of the assets of the estate.
- Completing and filing all necessary paperwork to become a personal representative of the estate.
The steps above should be undertaken as soon as possible after a death. Once the paperwork is on file, the Clerk of Superior Court will issue a written authorization for the person named as the executor of the deceased’s will (or the surviving spouse or other heirs if there is no will) to fulfill the duties of a personal representative of the estate. The personal representative must submit an oath to carry out those duties.
What Types of Estate Assets Are Subject to Probate?
The estate administration process entails the distribution of assets such as vehicles, bank accounts, stocks and bonds, furniture and jewelry. The assets that are subject to probate and handled through the estate administration process are called probate assets.
The personal representative must file an inventory of probate assets with the clerk’s office with descriptions and values of each asset. This should be done within 90 days of the date of the letter appointing the personal representative.
“Non-probate assets” must be listed on the inventory submitted to the Clerk’s Office. They may change ownership outside the probate process. Non-probate assets typically include:
- Property with joint ownership or a right of survivorship, meaning that it becomes the property of the last owner living, such as joint bank accounts.
- Accounts such as life insurance policies and retirement accounts that have a named beneficiary who is living.
- Real property – land and houses – generally is not administered through probate unless the will provides otherwise, or the sale of these assets are needed to pay estate debts.
The personal representative is responsible for paying the estate’s debts and taxes. He or she must properly notify creditors that the estate is being closed, which includes publication in the local newspaper of record and sending written notice by certified mail to known secured creditors.
After paying all valid claims on the estate as well as the estate’s taxes and costs of administration, which may require selling certain assets, the personal representative must distribute the assets of the estate according to the will, or according to North Carolina’s intestate succession laws. The representative is also responsible for the care and maintenance of estate property and may sell any property that is perishable or would deteriorate in value during the probate process.
Meanwhile, the representative must keep beneficiaries of the will in the loop by providing each with timely notice via certified mail that the will has been admitted to probate and providing a copy of the will. In addition, the representative must inform the beneficiaries of any information that might affect them, including their right to ask for a formal accounting of assets and debts by the independent executor.
Within one year of being appointed to serve as a personal representative, the representative must file a final accounting of the estate’s disposition with the Clerk’s Office. If probate has been extended, the personal representative must file annual accounting.
In North Carolina, the Clerk of Superior Court elected in each county acts as the probate judge to approve of the final disposition of estates formerly belonging to deceased county residents. Clerks and their assistant clerks hold most estate hearings and preside over most estate cases. If the validity of a will is challenged in a “caveat proceeding,” the caveat proceeding will be heard by a Superior Court judge.
Can You Handle Probate Without A Lawyer?
As you can see, being a personal representative responsible for probate and estate administration is potentially a big job. The representative may be subject to a lawsuit for any breach of fiduciary duty.
For smaller estates, the law makes allowances. If the value of the decedent’s personal property, fewer liens and encumbrances, does not exceed $20,000 (or $30,000 when the surviving spouse is the sole heir), there’s a simplified probate procedure. It is essentially the same but should be concluded within 90 days from filing an affidavit requesting authorization to administer the estate to file a closing affidavit showing the collection, disbursement and distribution of personal property.
A surviving spouse who is the sole heir can petition the court for an order of summary administration. This allows the spouse to proceed with the collection and distribution of the estate without the formalities of regular administration. However, if the real estate must be sold to pay debts of the estate, summary administration may not be viable.
If you are considering taking on probate and estate administration for a deceased loved one’s estate without a lawyer’s assistance, ask yourself:
- Do you have time for the probate settlement paperwork and legwork required over the course of six months to a year? Will you be able to meet deadlines and keep records that stand up to legal scrutiny?
- Can you locate a valid will?
- Will all of the deceased’s family members go along with your decisions about how the deceased’s property is distributed?
- Is the estate small enough to qualify for the simplified probate procedures?
- Is the estate large enough and solvent enough to pay its taxes and debts? Do you know which creditors to prioritize according to law?
- Are the estate’s assets simple – free of complicators like a business and/or commercial real estate, mineral rights, copyrights, royalties, etc.?
Contact Us About Help with Probate Administration
In most cases, probate administration is a complicated and time-consuming process in which all the pressure is on the personal representative of the estate. You will have questions to ask a probate attorney. Working in collaboration with an experienced probate administration lawyer can ensure the process keeps moving forward toward a timely and satisfactory conclusion.
Contact Brady Cobin Law Group, PLLC, in Raleigh today to speak to an experienced probate and estate administration attorney about assisting you with the final disposition of a loved one’s estate. Estate planning and N.C. probate law is our primary area of practice. We can guide you if you are the personal representative or beneficiary of the estate so that you avoid the hidden complications of probate. Our experienced and compassionate estate administration attorneys can offer trusted guidance and help you get everything done right from the start.
Mr. Cobin is an exceptional attorney, best in his field. I had a rather extraordinary situation with the passing of a friend, and Mr. Cobin guided me through the process flawlessly. He is a phenomenal guide and certainly a trusted advisor. Throughout the process, he is as genuinely concerned about people as he is making sure everything is done correctly and in the best interest of his client(s).
I would recommend Mr. Cobin to anyone needing estate planning expertise.