Probate Assets: What You Need To Know
Updated: Feb 11
The probate process can seem complicated and overwhelming, especially if you don’t have much legal experience. As a probate executor or administrator, one of your primary duties is to manage the decedent's (The person who died) assets. This guide provides an overview of the probate process and which assets can and cannot enter into probate.
[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs. Learn more.]
Overview of the Probate Process (what it is and why it’s important to understand)
The probate process is a legal procedure that is meant to ensure the orderly distribution of a deceased individual’s assets and responsibilities.
It is important to understand the probate process since it can help ensure that your loved one's wishes are carried out in the way he or she would have wanted.
The probate court oversees the administration of an estate or all of the assets and obligations left by someone after they have passed away.
The process involves several steps, including identifying and collecting assets, paying any debts, taxes, and other expenses, and distributing assets according to the will or state law if there is no will.
Petitioning The Court
The first step in the probate process is for a petition to be made to the Clerk of Superior Court for probate to be filed. This petition must include certain information about the decedent, including their name and address, date of death, names of heirs and beneficiaries of the estate, as well as a description of any property owned by them at death.
Once this petition is filed with the court, it must be approved by a judge before any further action can take place.
Once approved by the court, notice must then be given to all creditors who may have claims against the estate so they are aware of their right to make claims against it.
The court will be making sure that the assets of the estate are passed on to their rightful inheritors, honoring its legacy and providing a sense of peace to all involved.
In North Carolina probate is handled by the Clerk of Superior Court in each county.
Creditors then have a certain period within which they may file claims against the estate before they are forever barred from doing so.
After this period has expired without any creditor making claims against it, then all remaining assets can be distributed according to either the terms outlined in the decedent's will or according to state laws governing intestacy (the distribution of property when there is no valid will).
Lastly, once all bills are paid and creditors are satisfied with their settlements from the estate (if applicable), any remaining assets will be distributed among heirs and beneficiaries according to either the provisions outlined in a valid will or state law dictating how assets should be divided up when there is no will.
Now that we have given a review of the probate process let's discuss which assets can be included in probate in North Carolina.
Which Assets Are Included In Probate?
In North Carolina probate law, probate assets include any assets solely owned by the decedent at death, this includes personal property such as
stocks and bonds
it also includes household items such as furniture, jewelry, and art.
Automobile, boats and unconventional vehicles
In some states, houses and land may be included in probate. However, according to the North Carolina Judicial Branch, "in North Carolina Land and houses generally are not administered through the probate estate unless the will provides otherwise or the sale of these assets is needed to pay estate debts."
North Carolina Inventory List
If you are filing probate in North Carolina you will need to create an inventory list of the decedent's assets that must be included in probate.
This list should include all probate assets listed above. The inventory list will also need to show the market value of each asset listed.
If the value of the assets is not enough to pay off creditors, the executor/administrator may petition the courts to sell the decedent's real estate.
Once the house or land is sold the money will be used to pay off the deceased person's debts.
During the probate court proceeding the probate judge will assess the inventory list and decide which assets are subject to probate. So it is important for the personal representative to understand the legal process and which assets are probate assets and which ones are not.
If it is determined that the estate does not have enough value to pay off creditors the probate court may order the assets to be sold to pay off the decedent's debts.
If the assets are ordered to be sold to pay off creditors, taxes, etc., whatever funds are left over will be passed down to the heirs or beneficiaries. If there are not any funds left over after paying off the estate debts the heirs/beneficiaries will not receive anything.
Which Assets Are Non Probate Assets?
Nonprobate assets include any assets that are subject to a third party's control or ownership. Examples of nonprobate assets include:
- Assets held in living trusts
- Retirement accounts such as 401ks, IRAs, Roths, and SEPs
- Life insurance policies with designated beneficiaries
- Jointly owned assets with right of survivorship
- Payable on death (POD) accounts
- Transfer on death (TOD) accounts
Your Loved One's Assets
The purpose of this article is to help you understand what may happen to your loved one's assets and what to expect during the probate process.
Also, If you find yourself needing legal assistance during this time, we can connect you with a probate attorney who can help ensure that your probate process is managed correctly.
North Carolina Probate Solutions
We can help you go through probate with confidence and peace of mind. Estate administration also known as probate can feel overwhelming.
The attorneys can help you take care of the legal side, but we help take care of the non-legal side, which can sometimes feel like a weight to carry.
We are here to help lighten the load. We can assist you in filing your paperwork with the court to start the process, we will help you stay organized and keep you updated.
We will also help you in finding an attorney, appraiser, contractor, inspector, filing taxes with an accountant, or whatever professional service you may need to help settle the estate.
We can even help you learn how to avoid probate.
Real Estate Is Our Specialty
When it comes to selling property that is our specialty. Whether the property needs to be cleaned out, landscaped, maintained, trash hauled away, or sold we can help get the job done.
When it comes to selling probate property you really need a real estate agent who understands the probate process and timeline. Working with a agent who is unfamiliar with the process could cost you time and money.
Selling probate property is not handled like traditional real estate sales. This is why it is important to get a real estate agent who knows probate and what to do.
It may be beneficial to have a free consultation with North Carolina Probate Solutions to find out how we can help you. If you have any questions or need additional advice and guidance please feel free to reach out to us.
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, guidance or advice.