In NC why do you have to go through probate if there is a will?
Updated: Feb 17
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, is appointed to administer the estate. The court will often appoint the person designated in the decedent’s Will as the Executor.
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, 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.
If the decedent owned real estate, the probate process is critical.
What If Real Estate Is Involved?
If the real estate is to be retained by the decedent’s beneficiaries, probate is a necessary step for the beneficiaries to establish their ownership of the real estate. If the real estate is to be sold, probate is necessary to “clear title”, so that a purchaser can 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 after the death of a real estate owner without the completion of the probate process.
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 (which does achieve other important estate planning objectives), 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.
Denise Harper Davis
Certified Probate Real Estate Specialist
* 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.
Learn More About The Probate Process
7 Things you need to know: Inherited Property
24 Things You Need to Know About Selling a House in Probate in NC
11 Things an executor should know about probate
6 facts about the Affidavit for Collection of Personal Property in NC