Probate Administration Attorney in Wake Forest
Probate is the court-supervised administration of a deceased individual’s estate. After a person’s death, the legal process begins to determine who receives the assets the deceased leaves behind. The process includes substantiating the individual’s will, which states the deceased’s wishes, and appointing a representative of the deceased to administer the estate. The representative’s responsibilities include identifying estate assets, paying debts and overseeing the distribution of property to heirs.
The duties of the estate administrator – also called an executor or executrix, personal representative or trustee – are dictated by probate law. The fundamental duty of the administrator is to protect the assets and interests of each of the estate’s beneficiaries as the estate is settled. This can become difficult when beneficiaries of the estate have conflicting interests about how the estate’s assets should be distributed.
Our probate administration lawyers at Brady Cobin Law Group in Wake Forest can help the administrator of an estate. We have extensive experience with probate administration in North Carolina. Attorneys Daniel Brady and Andrew Cobin are both recognized by the North Carolina State Bar as board-certified specialists in estate planning law, a designation that only a small percentage of attorneys have. We can take the burden and stress of probate administration duties off of you and give you peace of mind that everything is being handled correctly.
First Steps in Probate and Estate Administration in Wake Forest
Probate is the process of validating the will of a person who has died and appointing someone, usually the surviving spouse or another close family member, to administer the estate.
In North Carolina, the Clerk of Superior Court in each county serves as probate judge to oversee the final disposition of estates. Clerks typically preside over hearings required by estate cases.
Initiating probate requires:
- Determining whether there is a valid will and locating it.
- Filing the will with the Clerk of Superior Court in the county where the person resided when he or she died.
- If no will is located, applying to the Clerk of Superior Court to be appointed administrator of the estate. Usually, the surviving spouse or another family member can do this. The Clerk may require a preliminary inventory of the assets of the estate.
- Completing and filing paperwork required to be appointed a personal representative of the estate.
Family members should initiate the steps above as soon as possible after someone dies. A will has no legal effect until it is probated by a court. When seeking to probate a will, three things can happen:
If the will has been properly drafted and documented by an estate planning attorney, then probating the will, or determining it is legally valid for transferring ownership of property, becomes a routine process. All that is required is a review of the document and appointment of the personal representative.
If there is no will or a document comes forward that doesn’t meet the legal requirements of a valid will, then probate becomes more complicated. If there is no will or no valid document that can be probated, then the judge will order the assets of the estate to be distributed according to laws of intestate succession. North Carolina’s intestacy laws distribute property to family members in order of immediacy to the deceased. That is, spouse, then children, lineal descendants of deceased children, parents, siblings and lineal descendants of deceased siblings.
If someone challenges the validity of a will, the legitimacy of purported heirs or the will’s instructions for distributing assets, a judge must hear and rule on each motion brought before the court. Such legal claims, or estate litigation, inevitably complicate and extend the probate process. When the validity of a will is challenged, a Superior Court judge presides over a “caveat proceeding.”
Once the will has cleared probate, the Clerk of Superior Court will issue a written authorization for the person named as the executor of the deceased’s will to fulfill the duties of a personal representative of the estate. The personal representative takes an oath to carry out those duties, which include filing periodic reports with the Court and answering if there are discrepancies or questions about the job they are doing.
Distributing Estate Assets According to Probate
Within 90 days of the date of the letter appointing the personal representative, he or she must file an inventory with the Clerk’s office with descriptions and values of each of the estate’s probate assets and a listing of non-probate assets.
Probate assets are assets that will change ownership through the estate administration process, such as vehicles, money in banks, stocks and bonds, furniture, jewelry and other personal property.
Non-probate assets may change ownership outside of the probate process.
This typically includes:
- Property with joint ownership or a right of survivorship, which means the last owner alive assumes ownership, such as with joint bank accounts.
- Accounts with named beneficiaries, such as life insurance policies and retirement accounts.
The personal representative must notify creditors that the estate is being closed, which includes publication in the local newspaper and sending written notice by certified mail to secured creditors that can be identified. This is part of paying the estate’s debts and taxes, another responsibility of the personal representative. Creditors must be given 90 days to make claims against the estate.
If necessary, the personal representative has the authority to sell non-probate assets of the estate to raise money to pay debts and/or taxes. He or she must also ensure the care and maintenance of estate property and may sell any assets that are perishable or would lose value during probate.
Once all valid claims against the estate, taxes and costs of administering the estate have been paid, the personal representative must distribute estate assets as directed by the will or according to North Carolina’s intestate succession laws. The costs of administering the estate may include a commission paid to the personal representative equal to up to 5 percent of the value of the estate’s assets and receipts.
During the entire process, the personal representative must provide each beneficiary of the estate with information about the progress of estate administration, including at the least:
- A copy of the will
- Notice via certified mail that the will has been admitted to probate
- Notice of their right to ask the personal representative for a formal accounting of assets and debts.
Within one year of being appointed to serve as personal representative of the estate, the executor must file a final accounting of the estate’s disposition with the Clerk of Court’s Office. If probate is extended, the personal representative will be required to file annual accounting reports.
If the representative fails to fulfill obligations of the appointment and it causes financial loss to a beneficiary of the estate, the beneficiary may sue for breach of fiduciary duty. This could lead to a court case and, if the breach and damages are proven, the representative could be ordered to compensate anyone harmed.
Contact a Probate Administration Attorney in Wake Forest
The idea of administering a deceased loved one’s estate may sound intimidating. But the actual job varies according to the size and complexity of the estate, the instructions left in the will and the cooperation of the heirs to the estate.
North Carolina law provides a simplified probate procedure if the total value of the estate does not exceed $20,000 (or $30,000 when the surviving spouse is the sole heir). A summary administration essentially requires filing an affidavit requesting authorization to administer the estate and then filing a closing affidavit describing how the administrator collected and distributed the estate’s assets. However, if real estate must be sold to pay debts, summary administration may not be possible.
Probate and estate administration are often complicated and time-consuming for the personal representative of the estate. It is an unfamiliar role for most who assume it, and it requires keeping multiple parties informed and satisfied, as well as meeting deadlines and keeping records that will stand up to legal scrutiny. The entire process may take six months to a year.
Working with an experienced probate administration lawyer at Brady Cobin Law Group, PLLC ensures that you can get your questions answered and keep the process moving forward in a timely manner.
Estate planning and N.C. probate law are our primary areas of practice. Our qualified attorneys can provide experienced legal counsel as you close out a loved one’s estate. When issues arise, we can explain the options available to you. We are skilled negotiators who can bring estate beneficiaries with divergent interests and views to the table and work to ensure everyone’s interests are served.
Contact Brady Cobin Law Group, PLLC, today to speak to an experienced probate and estate administration attorney about assisting you with the final disposition of a loved one’s estate. We can also protect your interests if you are a beneficiary to an estate. Let us assist and advise you and help you get everything done right from the start.