In NC why do you have to go through probate if there is a will?
- Denise Davis
- Feb 4, 2023
- 4 min read
Updated: Aug 17, 2024
Denise Knows Probate!
The death of a loved one is difficult for any family. At a time of sorrow and loss, the last thing any family wants to address is a legal issue.
Unfortunately, after a death, it is necessary to focus on a legal issue – Probate. Probate in North Carolina is a necessary legal process to properly transfer a decedent’s assets to the decedent’s heirs and beneficiaries.
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What If There Is A Will?
A common misconception about probate is that if you have a Will, your estate is not subject to probate. A Will is an important estate planning document, helping to transfer your assets to your intended beneficiaries.
However, a Will in North Carolina does not avoid probate.
Probate was created to ensure that estates are properly distributed. Probate is a court-supervised process. Having a court oversee the distribution of the estate is intended to safeguard that the estate will be distributed in accordance with the decedent’s intentions, subject to applicable law.
If the decedent has a Will, probate is necessary to validate and implement the terms of the Will.
North Carolina Probate Process
In North Carolina, probate generally follows the following steps:
1. An application [AOC-E-201]
To open probate in North Carolina an application has to be filled out and filed with the Clerk of Superior Court in the county of residence of the decedent.
2. At an initial court hearing,
A person, known as the Executor or Administrator is appointed to administer the estate.
3. The Executor has various duties, including:
Collecting the decedent’s assets;
Notifying and paying valid liability claims to the decedent’s creditors (including paying taxes);
Distributing the remaining assets of the decedent to the decedent’s beneficiaries (generally the beneficiaries named in the Will, if approved by the probate process); and
Preparing a final accounting of all transactions completed by the estate.
4. At a final court hearing, If everything was successfully carried out, the probate is closed.
How Long Will Probate Take In NC?
A typical probate in North Carolina will take approximately six months to a year to complete.
What If Real Estate Is Involved?
In NC real estate does not have to go through probate unless the estate does not have enough funds to pay creditors and other fees. Even though real estate does not have to go through probate it is highly advised not to sell the real estate until after the notice to creditor's period has completed.
Creditors have three months to present a claim against the estate. If the real estate is to be sold, it is important to find out if there are any liens against the property. If there are, the creditors who placed the lien on the property will need to file a claim against the estate within the three month period to ensure that they are paid.
Even if the heirs are not planning on selling the home, it is still important to find out if there are any liens on the house. Because if there are liens against the property, the heirs could possibly become responsible for paying the liens off.
If there are no liens against the property, the property has a “clear title”, so this allows the purchaser to acquire “clean title” to the real estate.
No prudent purchaser will acquire real estate without receiving title insurance, and no title insurance company will issue a “clean” title insurance policy without first finding out if there are any liens on the property.
Need To Sell Your Loved One's Property?
No matter the condition of the home, if you need it sold, we can help you. We can list it on the market to get you the highest price possible or give you a quick cash offer.
There are ways to avoid the probate process in North Carolina.
Property owned as joint tenancy with rights of survivorship can transfer to the surviving joint tenant without probate.
In addition, property owned in a Living Trust can transfer to the designated beneficiaries under the Living Trust without probate.
While these forms of ownership in North Carolina can avoid probate, having a Will by itself, does not avoid probate.
If you need help guiding through the probate process in North Carolina, please call North Carolina Probate Solutions at 252-902-9006.
Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here.]
Certified Probate Real Estate Specialist
Licensed Realtor
* NOTE: North Carolina Probate Solutions and the author of this article is not a licensed attorney or CPA. This post should not be considered legal or tax advice. Always consult an estate attorney or tax professional when needing legal answers and legal advice.
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