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  • Understanding Probate in North Carolina: A Guide to Summary Administration and Validating Wills

    Denise Knows Probate! Summary administration offers an expedited and simplified process for handling estates in North Carolina under specific circumstances. Unlike traditional probate proceedings, summary administration streamlines the distribution of assets, providing a more efficient path for executors and beneficiaries. In this guide, we will explore the key features and eligibility requirements of summary administration in North Carolina, offering clarity and guidance for those navigating the complexities of estate administration. We will also take a look at Wills and the roles it plays in probate. I Don't Have to File Probate Because My Loved One Left A Will In North Carolina, the probate process plays a crucial role in validating wills and ensuring the proper distribution of a deceased person's estate. Understanding the intricacies of probate law is essential for both individuals planning their estates and those tasked with administering them after death. A common misconception is that a will becomes legally effective immediately upon its creation. However, according to the North Carolina Judicial Branch, "Some wills are not valid because they lack the legal requirements of a valid will." This underscores the importance of having a properly executed will that meets all legal requirements to ensure its validity. In North Carolina, a will must be probated by a court, usually the clerk of superior court, before it has any legal effect. This means that the court verifies the validity of the will and oversees its execution according to the deceased person's wishes. What Makes a Will Valid? In North Carolina, for a will to be considered valid, it must meet certain legal requirements outlined in state law. Here are the key criteria for a will to be valid in North Carolina: Legal Capacity: The person making the will (the testator) must be of sound mind and at least 18 years old. They must understand the nature of the document they are signing and the implications of its contents. Intent: The testator must have the intention to create a will and dispose of their property upon their death. This intention should be clear and voluntary. In Writing: The will must be in writing. While North Carolina does not require a will to be typed, it must be written or printed in a legible manner. Handwritten wills, known as holographic wills, are accepted if they meet certain requirements. Signature: The will must be signed by the testator or by someone else in the testator's presence and at their direction. If the testator is unable to sign, they may direct someone else to sign on their behalf, but this must be done in the presence of witnesses. Witnesses: The will must be witnessed by at least two competent individuals who are present at the same time when the testator signs or acknowledges the signature. The witnesses must also sign the will in the presence of the testator and each other. Attestation Clause: While not required, including an attestation clause stating that the will was signed in the presence of witnesses and that they signed as witnesses can strengthen the validity of the will. Revocation: A will can be revoked or changed by the testator at any time before their death, provided they do so in accordance with North Carolina law. This can be done by creating a new will or by executing a valid revocation document. It's important to note that failure to comply with these requirements could result in the will being declared invalid by a court. Additionally, while North Carolina recognizes holographic wills, they can be subject to greater scrutiny and may be more easily contested than formally witnessed wills. Therefore, it's generally advisable to have a will prepared and executed with the guidance of an experienced attorney to ensure it meets all legal requirements and accurately reflects the testator's wishes. Summary Administration While the necessity of probate cannot be overstated, there are circumstances where a streamlined process known as Summary Administration may be available. However, it's crucial to note that this option is contingent upon specific criteria being met. To utilize Summary Administration in North Carolina, the surviving spouse must be the sole heir of both the assets included in the will and those not addressed by the will. This means that if the surviving spouse is the only beneficiary mentioned in the will and is also entitled to any assets not specifically outlined in the will, Summary Administration can be pursued. If a will was never created, then the surviving spouse must be the ONLY heir. So, if the deceased person's will designates beneficiaries other than the surviving spouse for certain assets, or if there are assets not addressed by the will that are intended for individuals other than the surviving spouse, Summary Administration cannot be utilized. In such cases, the full probate process is necessary to ensure the proper distribution of the estate. When applying for probate, the will and the petition for Summary Administration are typically submitted together. Once the court verifies the validity of the will, they proceed to execute the instructions outlined within it. This ensures that the deceased person's wishes are honored and that the estate is distributed according to their intentions. It's important to seek guidance from legal professionals experienced in North Carolina probate law to navigate these processes effectively. While this article provides an overview, it is not legal advice. Each situation is unique, and consulting with an attorney knowledgeable about probate law can help ensure that the estate administration proceeds smoothly and in compliance with state regulations. In conclusion, probate in North Carolina serves as a vital mechanism for validating wills and administering estates. Understanding the requirements for probate and Summary Administration is crucial for ensuring that the deceased person's wishes are carried out and that their estate is distributed appropriately. Denise Harper Davis 252-902-9006 Realtor | Investor | Certified Probate Real Estate Specialist If you need a realtor to help you sell a home you inherited, a home included in probate or maybe you just want to sell a home you own, contact me.  I am a NC realtor and together we will discuss the best options to get your home sold. Whether it's a quick cash offer or listing it on the market for top-dollar, I can help you! If you haven't already done so, join my Facebook NC Probate Support Group. Join Me on YouTube 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Denying a Creditors Claim Against Your Loved One's Estate

    As an executor of an estate in North Carolina, one of the crucial responsibilities you bear is managing creditor claims against the estate. These claims, ranging from outstanding debts to financial obligations, often add complexity to the already intricate process of estate administration. When faced with a creditor claim that you believe is invalid or should not be paid, it's imperative to handle the situation with care, following legal procedures and ensuring transparency throughout the probate process. Denying a Creditor Claim First Step Upon receiving a creditor claim, the executor's first step is to conduct a thorough review of the claim and associated documentation. This involves assessing the validity of the claim under North Carolina probate law. Common reasons for denying a creditor claim include: insufficient evidence supporting the debt, expiration of the statute of limitations, or dispute over the validity of the debt. Once the executor has determined that the claim should be denied, they should prepare a formal denial letter to the creditor. The letter should clearly outline the reasons for the denial and provide specific details supporting the decision. Additionally, the executor may offer the creditor the option of alternative dispute resolution, such as arbitration or mediation, to resolve the dispute outside of formal litigation. NC Arbitration When an executor denies a claim made by a creditor against an estate and the creditor disputes the denial, the matter may proceed to arbitration as an alternative dispute resolution method. Arbitration is a process where an impartial third party, known as an arbitrator or a panel of arbitrators, is appointed to by the clerk of court to review the dispute and render a decision. Here's what happens if an executor denies a creditor claim and the matter goes to arbitration: Agreement to Arbitrate: If both parties agree to arbitration, the clerk of court will select an arbitrator or a panel of arbitrators to preside over the dispute. The arbitrator(s) are typically individuals with expertise in the relevant area of law or industry. Arbitration Process: The arbitration process begins with the scheduling of a hearing where both parties present their arguments, evidence, and witnesses. The arbitrator(s) will listen to the arguments from both sides and may ask questions to clarify any issues. Evidence and Testimony: During the arbitration hearing, each party has the opportunity to present evidence and testimony supporting their position. This may include documents, contracts, invoices, correspondence, and witness statements relevant to the dispute. Arbitration Decision: After considering all the evidence and arguments presented, the arbitrator(s) will render a decision on the dispute. This decision is typically final and binding on both parties, meaning they are obligated to abide by the arbitrator's ruling. Enforcement of Arbitration Award: If the arbitrator(s) rule in favor of the creditor, the executor may be required to pay the amount awarded to the creditor from the assets of the estate. Conversely, if the arbitrator(s) rule in favor of the executor, the creditor's claim may be dismissed, and they may not receive any payment from the estate. Legal Recourse: In some cases, either party may seek judicial review of the arbitration award if they believe there are grounds for appeal, such as misconduct by the arbitrator(s) or errors in the arbitration process. However, judicial review of arbitration awards is typically limited and may only be granted in specific circumstances. It's important for the executor to engage legal counsel experienced in arbitration proceedings to represent the interests of the estate effectively. Legal guidance can help ensure that the executor understands their rights and obligations throughout the arbitration process and can navigate any complexities or challenges that may arise. Filing the Denial Letter With the Clerk of Court After drafting the denial letter, the executor must file it with the clerk of superior court office in the county where the estate is being administered. Filing the denial letter with the court serves as official documentation of the executor's decision and ensures that all interested parties, including the court and other creditors, are notified of the denial. When submitting the denial letter to the clerk of superior court office, the executor should include any supporting documentation that reinforces the decision to deny the creditor claim. This documentation serves as a lawful voucher for the executor, providing evidence that they acted in accordance with North Carolina probate laws. Additional Considerations In addition to filing the denial letter with the court, the executor should maintain open communication with the creditor throughout the process. Transparency and cooperation can help mitigate conflicts and facilitate a smoother resolution of the dispute. The executor should also be prepared to respond to any inquiries or requests for clarification from the creditor or the court. Although you do not have to have a lawyer to file probate in North Carolina or to deny claims to creditors, for the best results, It's important for the executor to consult with legal counsel experienced in North Carolina probate and estate law to ensure compliance with all legal requirements and procedures. Legal guidance can provide invaluable support in navigating the complexities of creditor claims and protecting the interests of the estate and its beneficiaries. Sample Letter To Send to Creditors To Deny A Claim Against an Estate [Executor's Name] [Executor's Address] [City, State, Zip Code] [Date] [Creditor's Name] [Creditor's Address] [City, State, Zip Code] Dear [Creditor's Name], I hope this letter finds you well. I am writing to address the claim you have submitted against the estate of [Deceased's Name] for the amount of $. Upon careful review and consideration, I regret to inform you that I am unable to accept your claim at this time. After reviewing the your documentation, it has been determined that [provide specific reasons for the denial, such as lack of evidence supporting the claim or disagreement over the validity of the debt, etc.] However, as the executor of the estate, I have the authority to enter into an agreement with you to refer the matter in controversy to arbitration. This alternative dispute resolution process involves appointing one or more neutral arbitrators whom the clerk of court will chose to review the dispute and render a decision. If you are open to arbitration, please let me know, and we can proceed accordingly. Please understand that our decision to deny the claim is not meant to cause any hardship or inconvenience. As the executor, I simply must ensure that all claims against the estate are handled in accordance with the law and the wishes of [Decedent's Name]. Enclosed with this letter, you will find a copy of the documentation supporting the denial of your claim [attach any supporting documents you have]. This documentation serves as a lawful voucher for our decision and provides evidence of our compliance with the law in this matter. Thank you for your understanding and cooperation in this difficult time. Should you have any questions or wish to discuss further, please do not hesitate to contact me at [Your Phone Number] or [Your Email Address]. With warm regards, [Executor's Name] **Please ensure that your letter is sent to the creditor's office via a method that requires a signature upon delivery. Upon receiving the signed receipt as proof of delivery, kindly forward a copy of the letter along with the signed receipt to the clerk of court office for proper filing. In Conclusion, Denying a creditor claim against an estate in North Carolina requires careful consideration, adherence to legal procedures, and transparent communication. By following the appropriate steps and seeking legal guidance when needed, the executor can effectively navigate the challenges of creditor claims and fulfill their duties in administering the estate. Denise Harper Davis 252-902-9006 Realtor | Investor | Certified Probate Real Estate Specialist If you need a realtor to help you sell a home you inherited, a home included in probate or maybe you just want to sell a home you own, contact me.  I am a NC realtor and together we will discuss the best options to get your home sold. Whether it's a quick cash offer or listing it on the market for top-dollar, I can help you! If you haven't already done so, join my Facebook NC Probate Support Group. Join Me on YouTube 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Where To File the Notice to Creditors in NC by Counties

    Denise Knows Probate! Understanding the Importance of Filing a Notice to Creditors in North Carolina In the intricate landscape of estate administration in North Carolina, certain legal procedures hold significant weight. One such crucial step is filing a Notice to Creditors. Whether you're an executor or an heir, comprehending the essence of this process is paramount. Let's delve into what it entails and why it's pivotal in estate settlement. What is a Notice to Creditors? In North Carolina, when an individual passes away, their estate enters a complex legal process known as probate. As part of this process, the executor or personal representative is tasked with notifying potential creditors of the deceased individual's passing. This notification is achieved through filing a Notice to Creditors in a circulating newspaper in the county where the deceased resided. Purpose and Importance: The primary objective of the Notice to Creditors is to inform creditors of the decedent's death, prompting them to come forward with any outstanding debts owed to them by the estate. By publishing this notice in a local newspaper and serving it to known creditors, the executor provides an opportunity for creditors to make their claims against the estate. Legal Obligations and Timeframes: In North Carolina, the law mandates a specific timeframe within which creditors must assert their claims against the estate. Typically, creditors have three months from the date of the Notice to Creditors publication to file their claims. Failing to adhere to this timeframe may result in forfeiture of the creditor's right to collect from the estate. Protection for Beneficiaries and Heirs: Filing a Notice to Creditors isn't just a legal formality; it serves as a protective measure for the beneficiaries and heirs of the estate. By providing a clear avenue for creditors to present their claims, it helps ensure that all debts are settled appropriately, minimizing the risk of future disputes or litigation. Transparency and Fairness: Moreover, the Notice to Creditors fosters transparency and fairness in the estate settlement process. It demonstrates the executor's commitment to fulfilling their fiduciary duties and ensures that the estate's assets are distributed equitably among creditors and beneficiaries alike. What Else Do You Need To Know About Notifying Creditors: Not only do you have to notify unknown creditors via newspaper but you also have to notify known creditors by mail. You can use the same notice that is being used in the newspaper and send that notice to them. From the date that you are appointed the personal representative you have 75 days to notify them. Known creditors would be creditors who are sending statements in the mail or who are calling the house. Even if you do not know how much your loved one owed, it is still your responsibility to notify them. Lastly, if you know of a creditor that your loved one owed money to and you are planning on paying the debt off, you do not have to notify them by mail. However, you will need a receipt or statement showing that you actually paid the creditor off for the probate final accounting. So be sure to keep all receipts and statements for your records. Conclusion: Filing a Notice to Creditors stands as a cornerstone of the probate process in North Carolina. It upholds principles of transparency, fairness, and legal compliance, safeguarding the interests of both creditors and beneficiaries. Executors and personal representatives should navigate this process diligently to ensure a smooth and lawful settlement of the deceased individual's affairs. Search the list below to discover where to file notice to creditors in NC. List of Circulating Newspapers By County - North Carolina Where to file the notice to creditors in NC Alamance County The Alamance News The Times News (Burlington) Alexander County Taylorsville Times Alleghany County The Alleghany News Anson County Anson Record The Charlotte Observer Ashe County Ashe Post and Time Winston Salem Journal Avery County The Avery Journal Times Beaufort County Washington Daily News Bertie County Bertie Ledger-Advance Bladen County The Bladen Journal Brunswick County The State Port Pilot Buncombe County The Citizens Times Black Mountain News Burke County The News Herald Cabarrus County Independent Tribune The Charlotte Observer Johnstonian News Caldwell County The Charlotte Observer Kinston Free Press Carteret County Washington Daily News Carteret County News-Times Caswell The Caswell Messenger Catawba County Hickory Daily Record Chatham County Chatham News and Record Cherokee County Cherokee Scout Chowan County Chowan Herald Clay County Clay County Progress Cleveland County The Star The Brunswick Beacon Columbus County The Daily News The News Reporter Craven County Sun Journal Cumberland County The Fayetteville Observer Dare County The Coastland Times Davidson County The Dispatch Thomasville Times-Enterprise Davie County Davie County Enterprise Record Duplin County Duplin Times Durham County The News and Observer Edgecombe County Rocky Mount Telegram Forsyth County Winston-Salem Journal The Clemmons Courier Franklin County The Franklin Press Gaston County Gaston Gazette Charlotte Observer Gates County The Roanoke-Chowan News-Herald Graham County The Graham Star Granville County Daily Dispatch The Butner-Creedmoor News Greene County The Standard Laconic Guilford County The High Point Enterprise The Carolina Peacemaker Halifax County The Daily Herald Haywood County The Mountaineer Henderson County The Times News Hendersonville Tribune Hertford County Roanoke-Chowan News Herald The Perquimans Weekly Hoke The News Journal Iredell County The Charlotte Observer The Denton Orator Tribune Mooresville Jackson County The Sylva Herald Johnston County News & Observer Johnstonian News Jones County Sun Journal The Jacksonville Daily News Lee County Paper Not Found Lenoir County Kinston Free Press Goldsboro News-Argus Lincoln County Lincoln Time News More to Come! 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Understanding Ancillary Probate in North Carolina: A Guide to the Process

    Denise Knows Probate! Probate is the legal process of administering a deceased person's estate, ensuring that their assets are distributed according to their will or state laws. In some cases, when a decedent owned real estate in multiple states, ancillary probate may be required. This article aims to explain what an ancillary probate proceeding is and provide a step-by-step guide on how to file an ancillary probate in North Carolina. What is Ancillary Probate? Ancillary probate is a supplementary legal process that may be necessary when a deceased person, also known as the decedent, owned property in a state other than their primary residence. When the person who died, owned out of state property it can sometimes lengthen the probate process. The primary probate proceeding typically occurs in the state where the decedent was domiciled, and ancillary probate becomes necessary to address out of state property. In the context of North Carolina, if the decedent lived outside of North Carolina but owned real property (such as real estate or land) in North Carolina, ancillary probate would be required to facilitate the transfer of those assets to the designated beneficiaries. For instance, if Jane Doe, a resident of Virginia, owned a beach house in the Outer Banks of North Carolina, and she passed away without incorporating this property into a trust or jointly titling it with rights of survivorship, her heirs would likely need to undergo ancillary probate to transfer ownership of the beach house. Similarly, if John Smith, living in Georgia, had a classic car collection stored in a garage in Charlotte, North Carolina, and did not have a comprehensive estate plan covering these assets, his estate would face the complexities of ancillary probate to rightfully distribute or sell these vehicles. So we can see that owning out of state property may cause additional steps to complete the probate proceeding. Steps to File Ancillary Probate in North Carolina: Determine Jurisdiction: Identify the county where the property is located. Ancillary probate is typically filed in the county where the property is situated. Hire an Attorney: While not mandatory, seeking the assistance of a probate attorney is highly recommended. An attorney with expertise in North Carolina probate laws can guide you through the process and ensure all legal requirements are met. Collect Necessary Documents: Gather essential documents, including the decedent's will, death certificate, and any relevant legal documents related to the North Carolina property. Open an Ancillary Probate Estate: Initiate the ancillary probate process by filing a petition with the North Carolina probate court. The petition should include details about the decedent, the property in question, and the reason for ancillary probate. Notice to Heirs and Beneficiaries: Provide notice to heirs and beneficiaries as required by North Carolina probate laws. This typically involves notifying interested parties about the probate proceedings. Inventory and Appraisal: Prepare an inventory of the decedent's assets in North Carolina, including the property subject to ancillary probate. An appraisal may be required to determine the value of the assets. Pay Debts and Taxes: Address any outstanding debts and taxes associated with the property. This step is crucial before distributing assets to beneficiaries. Transfer of Property: Once all legal requirements are met, the court will authorize the transfer of the property to the designated beneficiaries according to the decedent's will or state laws of intestacy. Closing the Ancillary Probate Estate: File the necessary documents to close the ancillary probate estate once all tasks are completed. This may involve submitting a final accounting of the estate's activities. Tips to Prevent Ancillary Probate Proceeding Here are some strategies to help you avoid the pitfalls of ancillary probate in North Carolina: 1. Transfer Ownership Transfer the ownership of the property into a living trust. Assets in a living trust bypass the probate process entirely. This means that upon the death of the trust's creator (settlor), assets within the trust can be distributed directly to the beneficiaries without the need for probate. 2. Joint Ownership Consider holding property in joint tenancy with the right of survivorship. When one owner dies, the surviving owner automatically receives the deceased's share of the property without probate. 3. Lady Bird Deed In North Carolina, a "Lady Bird" deed can be an effective tool to avoid probate. This type of deed allows the owner to retain control over the property during their lifetime, and upon their death, the property is immediately transferred to a named beneficiary. 4. Beneficiary Designations Similar to retirement accounts or life insurance policies, it's possible to have a Transfer on Death (TOD) or Payable on Death (POD) designation for vehicles and other accounts. This automatically transfers ownership upon the original owner's death, thus avoiding probate. 5. Gifting Property If feasible, consider gifting the property before death. There are tax implications to gifting, so it's wise to consult with an estate planning attorney before going this route. 6. Make Use of Small Estate Proceedings In some circumstances, if the value of the property in North Carolina meets the criteria for a “small estate,” it may qualify for a simplified probate process which is quicker and less expensive. Why Avoid Probate Altogether? The primary reasons to avoid ancillary probate are to save time, money, and hassle. Ancillary probate can: Increase legal fees Create additional court costs Complicate the executor's duties Delay the distribution of assets to heirs The key to avoiding probate is to engage in proactive estate planning: Review and update your estate plan regularly. Consult with a knowledgeable estate planning attorney who understands the intricacies of North Carolina's probate laws. Communicate your estate plan clearly to all family members involved. Conclusion: Ancillary probate can be a complex and costly process, but with careful planning, it can often be avoided altogether. By exploring the strategies outlined above and seeking professional legal advice, you can streamline the estate settlement process in North Carolina and provide peace of mind for yourself and your loved ones. Remember, each estate is unique, and what works for one family may not be the best choice for another. It's essential to tailor your estate planning to fit your specific situation. If you need assistance with your estate planning or have questions about ancillary probate in North Carolina, consider reaching out to a local estate planning attorney. Loss is never easy, but managing what comes after doesn't have to add to your burden. Prepare wisely, plan ahead, and give yourself — and your family — the gift of a smoother transition in difficult times. --- Denise Harper Davis 252-902-9006 Realtor | Investor | Certified Probate Real Estate Specialist If you need a realtor to help you sell a home you inherited, a home included in probate or maybe you just want to sell a home you own, contact me.  I am a NC realtor and together we will discuss the best options to get your home sold. Whether it's a quick cash offer or listing it on the market for top-dollar, I can help you! You May Also Want to Read Denying Your a Creditors Claim Against Your Loved One's Estate 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Understanding the North Carolina Probate Process: A Guide for Executors and Families

    Denise Knows Probate! Losing a loved one is an emotionally challenging experience, and navigating the legal procedures that follow can add to the stress. Probate is one such procedure that can seem daunting, but understanding it can make all the difference. This blog post aims to shed light on the probate process in North Carolina, offering a step-by-step guide to help estate executors, administrators, and bereaved families through this challenging time. What is Probate? Probate is the legal process by which a deceased person's will is validated, and their assets are distributed to heirs and beneficiaries under the superior court supervision. It also involves paying off any debts and taxes owed by the estate. In North Carolina, probate is necessary to ensure a proper and lawful transfer of assets. Filing legal documents and abiding by the probate timeline serves a major role in completing the probate process. How is Probate Handled if There is No Will in NC? Intestate Succession in North Carolina When a person dies without a will in North Carolina, their estate is subject to intestate succession laws. These laws dictate how the estate will be distributed to the surviving relatives. The allocation depends largely on the deceased's familial structure at the time of death. For instance, if the deceased is survived by a spouse and children, the estate is divided among them in accordance with state laws. Without a spouse or children, other relatives such as parents or siblings may inherit the assets. Understanding the order of intestate succession is crucial for relatives to grasp their inheritance rights under North Carolina law. In the article North Carolina Intestacy law: Who Inherits Property When There is No Will? we share a complete breakdown of the NC Intestate laws. Who Can File for Probate? In North Carolina, the executor named in the will is responsible for filing for probate. If no will exists or no executor is named, a close relative or interested party can apply to be the administrator of the decedent's estate. When Should You File for Probate in NC? The probate process should begin promptly after the individual's passing. North Carolina law requires that the will be filed with the probate court in the county where the decedent lived, and the process initiated within 60 days of the death. What happens if you wait longer than 60 days to file probate If probate is not initiated within 60 days following the death, potential complications may arise. Delaying the filing past this window does not automatically disqualify the decedent's estate from going through probate; however, it can lead to unnecessary delays and could potentially raise questions among heirs or beneficiaries about the reasons for the delay. Furthermore, if assets are not secured and legally transferred in a timely manner, they are susceptible to loss, depreciation, or claim by creditors. To avoid such issues, it is advisable to start the probate proceedings as soon as reasonably possible. Probate Assets vs. Non-Probate Assets It's important to understand that not all assets go through probate. Probate assets typically include all property solely owned by the deceased. In contrast, non-probate assets could include jointly held properties, life insurance policies, retirement accounts with named beneficiaries, and trust assets, which pass directly to the beneficiary and circumvent the probate process. What happens if heirs Disagree? Disagreements between heirs over the distribution of an estate's assets can complicate the probate process significantly. In such instances, North Carolina probate courts may need to intervene to resolve disputes. Heirs have the right to contest a will if they believe its terms do not reflect the true intentions of the decedent or if they suspect the will was a result of undue influence, fraud, or lack of capacity at the time of its creation. In some cases a petition to partition may need to be filed. This will ensure that each heir receives what rightfully belongs to them. It is essential for all parties to seek legal counsel to protect their interests and ensure a fair resolution in accordance with North Carolina law. The Role of Executors and Administrators in NC Probate The executor, as named in the will, or the administrator, as appointed by the court in cases of intestacy, plays a critical role in the North Carolina probate process. This individual is responsible for collecting the decedent's assets, paying debts and taxes, and distributing the remaining estate to the rightful heirs. The duties require a high level of diligence and often involve intricate financial management. Executors and administrators must also adhere to North Carolina's probate laws and deadlines, failing which they may face legal consequences. For individuals serving in these roles, it is advisable to consult with a probate attorney for guidance throughout the procedure. In the article When a loved one dies and you become the executor, we go more into depth on the responsibilities of the person managing the estate. Does Real Estate Have to Go Through Probate in NC? In North Carolina, whether real estate must pass through probate depends largely on how the property was held. If the real estate was owned solely in the name of the decedent, or as tenants in common with others, it generally does need to go through probate. On the other hand, if the property was held in joint tenancy with the right of survivorship or as a tenancy by the entirety, the real estate passes directly to the co-owner without the need for probate. In situations where the property is held in a trust, it will also bypass the probate process, aligning with the terms set forth in the trust agreement. Out-Of-State Decedents and Property in Different Counties If the decedent lived in another state but owned property in North Carolina, an ancillary probate proceeding would need to be initiated in NC. This process works concurrently with the primary probate proceeding in the home state. Additionally, if the decedent owned properties in different counties within North Carolina, additional steps might be necessary in each county to manage and distribute those assets properly. Filing for Probate Without a Lawyer in NC It is possible to file for probate without legal representation in North Carolina. Self-representation, however, means taking on the responsibility of understanding and complying with complex legal requirements, which can be overwhelming for someone unfamiliar with the process. Seeking assistance from a knowledgeable probate attorney is highly recommended to navigate the process effectively. The Probate Process in North Carolina Let's walkthrough the fundamental steps of probate in NC: Filing the Will and Death Certificate: Submit the original will and death certificate to the probate court in the appropriate county. This is a court supervised proceeding so be prepared to pay legal fees when filing the documents. Appointment of the Executor or Administrator: The court appoints the executor or administrator, who will oversee the probate process. Inventory of Assets: The executor/administrator must compile a thorough inventory of all probate assets. Notice to Creditors: Creditors are notified and given a period to present any claims against the estate's assets. Pay Debts and Taxes: All legitimate debts, including taxes, must be paid from the estate before beneficiaries can receive their shares. Distribution of Assets: After debts and taxes are settled, the remaining assets are distributed to the rightful heirs or beneficiaries as outlined in the will or by state law if there is no will. Closing the Estate: The final step involves preparing a final accounting of how all assets were managed and distributed and submitting it for court approval to close the estate. How To Avoid Probate in North Carolina Avoiding probate can save time, money, and privacy for your heirs. In NC, there are several legal strategies to avoid probate in North Carolina: Joint Property Ownership: Holding property jointly with right of survivorship means that upon the death of one owner, the property immediately passes to the surviving owner without the need for probate. Beneficiary Designations: Financial assets such as life insurance policies, retirement accounts, and bank accounts can allow you to name a beneficiary who will receive the assets directly after your death, bypassing probate. Payable-On-Death and Transfer-On-Death Accounts: Similar to beneficiary designations, these allow you to name beneficiaries for your bank accounts and securities, respectively. Living Trusts: By creating a living trust, you can transfer assets into the trust to be managed for your benefit during your lifetime and then transferred to your beneficiaries upon your death, without going through probate. These tools can help individuals avoid probate and manage how their assets are handled after their passing and can be tailored to the unique needs of each estate. Consulting with an estate planning attorney is recommended to implement these strategies effectively. North Carolina Probate Process The probate process in NC is structured to ensure fair and transparent management and distribution of an individual's estate. Nevertheless, it involves a complex interplay of probate laws and regulations that can be difficult for the untrained individual to navigate. Executors and families are encouraged to seek professional legal advice to ensure their loved one's assets are handled properly and in accordance with the law. As you embark on this journey, remember that the probate court staff and legal professionals are invaluable resources that can help make this process as smooth as possible. Take your time, stay organized, and don't hesitate to ask for help if you need it. For those who decide to take this on without a lawyer, remember that diligence, attention to detail, and a steady commitment to understanding the legal process will be your greatest tools during probate. Our thoughts are with you during this challenging period, and we hope this guide serves as a supportive resource in your time of need. Denise Harper Davis 252-902-9006 EXP Realtor | Certified Probate Real Estate Specialist If you haven't already done so, join my Facebook NC Probate Support Group. Join Me on YouTube Other Articles You May Be Interested In: Denying Your a Creditors Claim Against Your Loved One's Estate Understanding the Petition to Partition in Probate: Resolving Estate Disputes Why You Need a Living Trust Instead of a Will Surviving Spouses Property Rights in North Carolina 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • What is a Probate Bond in North Carolina?

    Denise Knows Probate! Unfortunately, when someone passes away, their possessions often go through probate to be distributed among creditors, heirs, and beneficiaries. This process involves: Identifying and understanding the decedent's last will and testament. Gathering their possessions and determining the valuable assets. Settling any outstanding debts of the deceased. Paying property and estate taxes. Covering the expenses of a funeral ceremony. Distributing remaining assets among beneficiaries or heirs. A person will be assigned to manage the deceased person's estate. This will either be an executor or an administrator. The court may also require that they purchase a probate bond before filing probate. Probate Bond In North Carolina A probate bond is a special guarantee or you can say it is extra protection that is required by North Carolina state courts to ensure that the executor or administrator of an estate carries out their responsibilities responsibly and truthfully. Probate bonds, protects beneficiaries and creditors from potential harm due to misconduct or negligence by the executor or administrator. Probate bonds are issued to administrators, executors, conservators, and guardians of estates in North Carolina. How Can Probate Bonds Help Heirs and Beneficiaries? The executor or administrator is responsible for managing the decedent's estate and making sure the heirs and beneficiaries get what rightfully belongs to them. If the estate is mismanaged for any reason, it may result in some type of financial harm to the heirs or beneficiaries.. If this was to happen the heirs or beneficiaries would be able to file a claim with the probate bond company and possibly be reimbursed for any financial harm caused by the executor or administrator. The executor/administrator may be held personally liable for the damages and may face fines or even jail time. What happens If I can't afford the probate bond in NC If you find yourself unable to afford the probate bond in North Carolina, there are a few steps you can take. First, you may petition the court to waive the bond requirement, especially if the will explicitly states that no bond is necessary. If that is not an option, you could also seek assistance from other beneficiaries, who may have a vested interest in the estate's prompt and secure administration. Lastly, some bonding companies might offer payment plans or reduced rates for individuals who can demonstrate financial hardship. Consulting with an estate planning attorney can offer you more personalized options and strategies to address your specific circumstances. How long is a probate bond good? A probate bond, once issued in North Carolina, remains effective until the probate process is completed and the court discharges the executor or administrator from their duties. This duration can vary greatly, from a few months to several years, depending on the complexity of the estate and the presence of any probate litigation. It’s crucial for executors to understand that they are responsible for maintaining the bond for the entire duration of the estate administration process. Failing to do so can lead to legal consequences and potentially delay the distribution of the estate's assets. Additionally, if the executor or administrator wishes to resign from their duties, they must obtain a release of the bond from the court before doing so. It’s essential to work closely with an attorney throughout this process to ensure compliance with all legal requirements and avoid any complications. So, it is important to carefully consider the responsibilities and potential costs associated with obtaining and maintaining the probate fiduciary duties. How to Get a Bond Waived Creating a will with an attorney might waive the probate bond requirement, but three other options exist to avoid having to obtain a bond: All heirs agree to waive the bond. Settle any existing financial obligations. Obtain court approval to be excused from obtaining a probate bond. Fortunately, judges may agree to bypass the administrator's probate bond requirement. This may help executors or administrators who can not afford to purchase the bond or who may not meet the credit score requirement that some bond companies require. How Much Does a Probate Bond Cost? The cost of a probate bond in North Carolina can vary depending on the size of the estate and the specific requirements set by the court. Generally, the premium for a probate bond is a small percentage of the total bond amount, which correlates with the value of the estate going through probate. It's essential to compare quotes from licensed bonding companies to get the best rate. Keep in mind, the creditworthiness of the estate executor may also influence the cost of the bond. Engaging an estate planning attorney can provide guidance on whether a probate bond is required in your situation and assist with obtaining one at a competitive rate. According to a surety bond company called Swiftbonds there rates are: Bond Amount Needed Fee <$20,000 $100-$150 $20,000-30,000 $150-$200 $30,000-50,000 $200-$300 $50,000 +0.5-0.8% You can do a google search for probate bonds or surety bond company and speak with the company representative to find their fees When Is a Probate Bond NOT Required? In North Carolina, a probate bond may not be required in certain circumstances. If the decedent's will explicitly states that no bond shall be necessary, the executor may be exempt based on those wishes. Additionally, when all beneficiaries agree in writing to waive the bond, the court may also dispense with the requirement. Alternatively, if the estate qualifies for a simplified small estate administration, which applies to estates of limited value and complexity, no bond may be needed. According to Article 8 § 28A-8-1. No Probate bond shall be required of: (1) A resident executor, unless the express terms of the will require a resident executor to give bond; (2) A nonresident executor (or a resident executor who moves from this State subsequent to that executor's appointment) who has appointed a resident agent to accept service of process as provided in G.S. 28A-4-2(a) [28A-4-2(4)], when the express terms of the will excuse a nonresident executor from giving bond; (3) A nonresident executor, when there is a resident executor named who has qualified as coexecutor unless the express terms of the will require them to give bond, or the clerk of superior court finds that such bond is necessary for the protection of the estate; or (4) A personal representative appointed solely for the purpose of bringing an action for the wrongful death of the deceased until such time as the personal representative shall receive property into the estate of the deceased; or (5) A personal representative that is a trust institution licensed under G.S. 53-159; (6) A personal representative of an intestate who resides in the State of North Carolina when all of the heirs of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the personal representative from the necessity of giving bond; or (7) A personal representative where the personal representative receives all the property of the decedent; (8) An administrator with the will annexed who resides in the State of North Carolina when all of the devisees of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the administrator with the will annexed of the necessity of giving bond. Who Receives the Probate Bond? To qualify for a probate bond, an estate's personal representatives, executors, or administrators must demonstrate financial stability and a credible credit history. Remember filing probate is a legal process so the person must be someone who is willing and capable to carry out the fiduciary duties and one of good faith and character. If they can't meet these criteria, attorneys may assist by taking control of the estate account. Should You Purchase a Probate Bond? Probate can be a complex task to handle and the possibilities of making mistakes are high, especially if you are trying to do probate on your own. If something goes wrong you could be held personally responsible for paying heirs, beneficiaries and creditors what rightfully belonged to them. So having a probate bond not only protects the heirs and beneficiaries, it may also protects the executor and administrator. North Carolina Probate Solutions If you have further questions about the probate process or purchasing a probate bond feel free to reach out to me. Also if you have real estate that you need to sell contact me and let's discuss the best options for you. Denise Harper Davis 252-902-9006 EXP Realtor | Certified Probate Real Estate Specialist Other Articles You May Be Interested In: Understanding the Petition to Partition in Probate: Resolving Estate Disputes Why You Need a Living Trust Instead of a Will Surviving Spouses Property Rights in North Carolina 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Understanding the Petition to Partition in Probate: Resolving Estate Disputes

    Denise Knows Probate! Probate proceedings can sometimes become complex and contentious, especially when multiple heirs or beneficiaries are involved. One legal tool that is often utilized in such situations is the "Petition to Partition." This legal action aims to address issues related to the distribution of assets within an estate and can be a crucial step in resolving disputes among heirs. What is a Petition to Partition? A Petition to Partition is a legal document filed with the court that seeks to divide or distribute the assets of an estate among the heirs or beneficiaries. This process is commonly employed when there is disagreement among the interested parties regarding the distribution of the estate's property. The goal of the petition is to bring clarity and resolution to disputes, allowing for a fair and equitable distribution of assets. When is a Petition to Partition Necessary? Several situations may lead to the filing of a Petition to Partition in the context of probate: Multiple Heirs: When there are multiple heirs or beneficiaries, conflicts can arise regarding how the estate should be distributed. Differences in opinion on the value of specific assets or the desire to retain certain properties may prompt the need for a partition. Disagreements on Property Use: In cases where real estate is part of the estate, heirs may have conflicting views on how the property should be used or managed. Some heirs may want to sell the property, while others may wish to retain it for personal use. Unequal Distribution: If there are disparities in the value of the assets or if some heirs receive more favorable treatment than others, dissatisfied beneficiaries may seek a partition to ensure a fair distribution. Financial Disputes: Disagreements over financial matters, such as the payment of debts or expenses related to the estate, can also trigger the need for a Petition to Partition. The Process of Filing a Petition to Partition: Consultation with Legal Counsel: Before filing a Petition to Partition, it is advisable for interested parties to seek legal advice. An attorney can assess the situation, guide the parties through the legal process, and represent their interests in court. Filing the Petition: The petitioner, typically one of the interested parties, files the Petition to Partition with the probate court. The petition outlines the issues at hand, the assets in question, and the requested relief. Court Proceedings: Once the petition is filed, the court will schedule hearings to review the case. The court may consider evidence presented by all parties involved, including appraisals of property values and financial documentation. Resolution: Based on the evidence presented, the court will make a decision on how to partition the estate. This may involve the sale of assets, division of property, or other measures to ensure a fair distribution. Conclusion: A Petition to Partition plays a crucial role in resolving disputes within a probate estate. By providing a legal avenue for addressing disagreements among heirs or beneficiaries, this process aims to achieve a fair and equitable distribution of assets. Parties involved in probate proceedings should carefully consider the option of a Petition to Partition with the guidance of legal professionals to ensure their interests are represented and that the probate process concludes with a satisfactory resolution for all involved. If you need assistance with selling an inherited home or a home that has been included in probate contact Denise Davis. Denise will consult with you on which options are best when it comes to selling your home and will also offer guidance with the probate process. Denise Davis Realtor | Certified Probate Real Estate Specialist EXP Realty 252-902-9006 Other Related Articles to Read: North Carolina Intestacy Laws: Who Inherits Property When There Is No Will How to File Probate in NC Without a Lawyer Surviving Spouse Rights in NC How a Probate Realtor Can Help You Sell Your Property 📌 Disclaimer: The above information is for informational purposes only and does not constitute legal advice. Consult with a qualified attorney for personalized guidance on your specific situation.

  • Why You Need a Living Trust Instead of a Will

    Denise Knows Probate! Estate planning can be a daunting process, especially for parents who want to ensure that their children are taken care of after they pass away. While a will is a common estate planning tool, it may not offer the best protection for your assets nor your family's future. That's where a living trust comes in. In this article we will discuss the benefits of a living trust and why this just may be a better option than a will. Need help with probate? 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! What Is a Living Trust? A living trust is a powerful legal document that allows you to transfer ownership of your assets to a trust during your lifetime. As the trustee, you have complete control over what the trust contains, and after you pass away, the assets are distributed to your beneficiaries according to your wishes. A living trust offers several advantages over a will, making it a better option for parents who want to leave their personal belongings to their children. Let's take a closer look at everything a living trust has to offer. Benefits of a Living Trust Avoiding Probate One of the most significant advantages of a living trust is that it avoids probate. Probate is a court-supervised process that can be time-consuming and expensive, tying up your assets in the court system for months or even years. With a living trust, your assets are distributed directly to your beneficiaries without going through probate, providing a faster and more efficient distribution process. Protecting Your Privacy Another advantage of a living trust is that it protects your privacy. When a will goes through probate, it becomes public record, allowing anyone to access and review the details of your financial affairs. With a living trust, your finances remain private, ensuring that your family's business stays confidential. Providing Continuity A living trust can also provide continuity for your family if you become incapacitated. If you're unable to manage your assets due to illness or injury, your successor trustee can step in and manage the trust for you, ensuring that your assets are dealt with according to your desires, even if you're unable to do so yourself. Greater Control Over Distribution As a parent, you want to make sure that your children have the resources they need even after you are gone. A living trust allows you to specify exactly how you want your assets distributed, providing you with more control over the process. For example, you can set up separate trusts for each child, specifying what assets each child will receive and at what age, helping to avoid disputes or misunderstandings between your children. Naming a Trustee to Manage Assets Another advantage of a living trust is that it allows you to name a trustee to oversee your assets until your children reach a certain age. This can be especially important if you have minor children who are not yet capable of dealing with their own finances. With a living trust, you can ensure that your children's needs are taken care of until they are old enough to handle their money responsibly. Resources Are Available While the estate planning process can be intimidating, it's important to consult with an experienced estate planning attorney who can guide you and help you make the best decisions for your particular situation. By leveraging a living trust, you can rest easy knowing that your assets will be distributed how you want, and your family's future will be secure. Having Proper Legal Representation Estate planning is not a one-size-fits-all solution, and everyone's needs are unique. That's why having a knowledgeable attorney in your corner is crucial. They will help you work through the legal implications of your decisions and ensure that your intentions are accurately reflected in your estate planning documents. Updating Your Living Trust It's also important to keep your living trust up to date. Life circumstances can change, such as the birth of a child, divorce, or the purchase of a new asset. These changes may require updates, and it's important to work with an attorney to ensure that your living trust remains current. A quick look at a will A will is a legal document that allows you to designate how your assets will be distributed upon your death. It's important to create and update a will regularly, as it gives you control over where your money and possessions go after you're gone. Unlike a trust, a will has to go through probate. During the probate process heirs and beneficiaries are usually the last to receive assets that you have placed in the will for them. Creditors and taxes will be paid first, and any assets or funds remaining will be passed on to beneficiaries and then heirs. If for some reason there is no money or assets remaining after paying creditors and taxes then your beneficiaries and heirs will not receive anything. This is why in most cases having a trust is always better than having a will. Plan for the Future Today Planning for the future can be a difficult and emotional process, but it's important to start today. A living trust provides greater protection for your assets and your family's future, giving peace of mind to you and your loved ones. With a clear plan in place, your family will know exactly what your wishes are, and will be able to avoid misunderstandings or disagreements that may otherwise tear them apart. Don't wait until it's too late. Consult with an experienced attorney now and start planning for the road ahead. North Carolina Probate Solutions We partner with probate and estate planning attorneys throughout North Carolina. If you would like us to put you in touch with an attorney to help you put in place a trust that will secure your assets for your beneficiaries contact us today. 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. Denise Harper Davis Certified Probate Real Estate Specialist Licensed Realtor 252-902-9006 * 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. Other Related Articles: Understanding to Petition to Partition in Probate

  • Small Estates: How a Small Estate Affidavit Can Help You Skip Probate Court

    Denise Knows Probate! If you have ever lost a loved one and became the personal representative of their estate, you know that the probate process can be time-consuming, complicated and expensive. But what if there was a way to get your inheritance while bypassing probate court entirely? Sometimes, a person dies without significant assets. Small estate laws allow smaller estates to skip the probate process and puts the inheritances in the hands of the beneficiaries and heirs faster. This helps keep the court docket clear and helps families reach closure faster. While not everyone is eligible to take advantage of these laws, those who do will have a much easier time. Follow along as we take a deep dive into the main tool of small estate laws - a small estate affidavit. [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! What is a small estate? A small estate in North Carolina is any estate valued at less than $20,000 if single or $30,000 if the only beneficiary is a surviving spouse. For a general idea of the size of an estate, you can calculate the value of any accounts, personal property and assets and subtract the amount of liens, and in some cases $60,000 of spousal support against that property. Type of liens Mortgage Home Equity Loan A Reverse Mortgage Tax Liens Mechanic Liens Judgement Liens Example Asset Value = $100,000 Liens = $30,000 $70,000 (Would not qualify for small estate affidavit) Asset Value - $100,000 Liens = $80,000 $20,000 (Would qualify for small estate affidavit) Note that certain assets like real property or life insurance policies doesn’t have to be included if they have a named beneficiary. A word of caution: if you plan on selling any real property within two years of the passing of the decedent (the person who died) then you should consult with an attorney before using a small estate affidavit. The funds from the sale of the real property may be counted towards the total estate amount and make some parties ineligible for the small estate affidavit. A Small Estate Affidavit in North Carolina? A small estate affidavit is a document that is filed by an individual (affiant) to petition for a portion of a deceased person’s estate. There is a 30-day waiting period before you can file a small estate affidavit in North Carolina. Who is eligible to file a small estate affidavit in North Carolina? As mentioned above, not all individuals are eligible to use a small estate affidavit in North Carolina. You can only use the affidavit if you have a legal claim to the estate of the deceased. You are able to file a small estate affidavit if you live out of state - you’ll simply have to complete paperwork (Form e500) to name a Resident Process Agent. That person is someone who is a North Carolina resident and accepts mail and other service of process information regarding estate matters. This video goes in-depth explaining the role of a resident process agent. How to Settle a Small Estate Affidavit in North Carolina There are two main ways to settle a small estate in North Carolina: summary administration and collection by small estate affidavit. If the spouse inherits everything, a summary administration is appropriate. If, however, there is more than one beneficiary of the estate, you can then use the small estate affidavit to bypass the probate courts. It’s important to remember that, although skipping probate will make the inheritance process much easier, it is still a detailed and complex process that is best handled by an experienced North Carolina estate and/or probate attorney and if real estate is involved find a certified probate real estate agent. The Small Estate Affidavit Process The first step in the process is to present a death certificate and general inventory of money, assets and personal property to the Clerk of the county in which the deceased resided. Once the necessary information has been provided, you will be named as “executor” for the estate. This means that you will be responsible for paying any debts the estate has that are outstanding. After the payment of debts, you will be responsible for distributing any remaining funds, personal property and assets. This dispensation can be done either by terms of the will if there is one or in accordance with North Carolina intestacy law if a will doesn’t exist. How can an Estate or Probate Attorney Help Me With a Small Estate? The best way to execute a small estate affidavit is with the help of an experienced estate or probate attorney. They can use their years of experience and legal knowledge to carefully consider every aspect of the small estate to ensure that eligibility requirements are met and that the court has received all the proper documentation. The attorney can advise you of your options and let you know whether a small estate affidavit is right for you. Denise Harper Davis Certified Probate Real Estate Specialist Licensed Realtor 252-902-9006 * 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.

  • THE DIFFERENCE BETWEEN A LIVING TRUST AND A WILL

    Denise Knows Probate! The probate process can be complex and confusing for those unfamiliar with the laws governing estates. Deciding between a living trust and a will is an important decision that requires careful consideration. This article will provide an overview of the differences between these two options, as well as the implications they have on the probate process. Need help with probate? 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. Living Trust vs. Will A living trust is a legal document that places assets into trust ownership, allowing them to bypass probate court. A will, on the other hand, requires court approval before assets can be distributed to beneficiaries. This can lead to delays and added expenses in court fees and legal fees associated with the probate process. The choice between a living trust or a will should be made based on various considerations, including asset size and type of accounts held. In addition, should you choose to establish a living trust, you’ll need to factor in asset management fees and other costs associated with maintaining it. We’ll break down all of these considerations for you in this article so you can make an informed decision about which option is best for your situation. What Is the Probate Process? When it comes to estate planning, the probate process is an important factor to consider. Probate is a legal process that distributes the assets of a deceased person to their heirs as outlined in their will or living trust. It's a way for the court to ensure the deceased person's wishes are met and that their heirs are properly taken care of. Simply put, the probate process is the method used to transfer ownership of a deceased person's property, such as houses, vehicles, and other belongings to their named beneficiaries or heirs. During probate, a court-appointed executor files paperwork with the court so that title, rights, and obligations are transferred accordingly. This is done through either a will or a living trust. The primary difference between these two documents is that with a will, all of the deceased person’s assets go through probate before they go to their heirs, while with a living trust, they do not need to go through probate which can save time and money when transferring ownership of assets. Living Trust Provides Benefits Over Wills. One of the biggest advantages of creating a living trust is that it avoids probate. Without a living trust, your heirs could end up dealing with the probate court for months or even years after your death. On the other hand, assets held in a living trust can be transferred without going through probate. This saves your heirs the time, expense, and hassle of working through the process. Property held in a living trust also passes directly to beneficiaries without any delays or hassles associated with probate. Additionally, if you have minor children, you can designate in the living trust who will care for them in case something happens to you and your spouse. You may also include instructions regarding when and under what circumstances they will receive their inheritance from the trust. This helps ensure that your children are taken care of after you are gone. What Happens If a Will Is Not Entered Into Probate? When you pass away, your will needs to be legally entered into the probate court system. This is known as probating a will. During the probate process, the court reviews and verifies the validity of a will and apportions assets and liabilities according to its instructions. But what happens if the will is never entered into probate? In that case, the will is invalid, so all of your assets and liabilities must be divided in accordance with the laws of intestacy. These laws vary from state to state but generally involve distributing property among surviving relatives, beginning with the closest family members. What Rights Do the Beneficiaries of the Trust Have? One of the most important things to understand when considering a living trust is what rights the beneficiaries will have. The answer depends on the type and structure of the trust, but generally, beneficiaries can expect: Access to all information about the trust and its assets Right to receive and trade trust assets as stated in the documents Right to contest any provisions of the trust which they do not feel are fair or just Right to receive regular payments from income generated by trust assets, as determined by the terms of the trust agreement Right to be informed of any changes in trusteeship or other relevant changes occurring in relation to the trust Right to seek additional information with regards to their rights under a living trust Dependent upon state law, right to enforce full or portion payment of their entitlement under the living trust, if needed It is important for anyone considering a living trust to be aware of these rights so they can make an informed decision about how best to protect their assets and provide for their family's future. What Are Trustee's Duties in Administering a Living Trust? When you create a living trust, you are responsible for appointing a trustee to manage and administer the trust assets. This person is responsible for ensuring that your assets are distributed according to your wishes and that the process is handled efficiently and effectively. The duties of a trustee in administering a living trust include: Investing assets in accordance with state law and the terms of the trust Distributing assets to beneficiaries according to the terms of the trust Maintaining records, such as tax returns, asset evaluations, and other paperwork related to trust management Monitoring trusteeship fees charged by service providers Obtaining legal advice regarding distribution of trusts or settling disputes between beneficiaries Filing tax returns when applicable Ensuring benefits eligibility for beneficiaries who are receiving government benefits like Social Security or Medicaid Assigning specific duties to an appropriate fiduciary if necessary These duties all serve to ensure that your wishes in establishing the trust remain fulfilled after your death. How to Help Your Heirs Avoid the Probate Process Deciding between a living trust and a will can be overwhelming, but the reward of streamlining your heirs' probate process makes it worth the effort. There are several ways to help your heirs avoid the probate process in both options: Living Trusts A living trust will bypass probate court, providing an easier and faster way for your beneficiaries to receive their inheritance. A living trust also offers flexibility, making it an attractive choice for families who want to designate special instructions for how their estate should be handled upon death. Wills While a will does not necessarily prevent your heirs from going through the probate process, there are certain steps you can take to make it less complicated. For instance, having “transfer on death” forms attached to your bank accounts or other financial assets will help ensure that those assets are transferred quickly and seamlessly after you pass away. Additionally, designating beneficiaries with life insurance or retirement plans may expedite the distribution process. Depending on your financial situation and wishes, you may find one option more suitable than another - consulting with a knowledgeable attorney is key when making this important decision. Summary All in all, the probate process can be a difficult one for those who are unfamiliar with it. Understanding the differences between a living trust and a will can help ensure that the process goes more smoothly. A living trust offers more flexibility and control, while a will is a good choice for those with a smaller estate. Ultimately, the decision should be based on your individual needs and preferences. It’s a good idea to work with an probate attorney and a certified probate real estate agent, if real estate is involved, when considering which option is best for you, as they can provide valuable insights and advice, as well as guide you through the entire process. 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. Denise Harper Davis Certified Probate Real Estate Specialist Licensed Realtor 252-902-9006 * 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.

  • North Carolina Intestate Estates – Part II

    Denise Knows Probate! In a prior article about North Carolina intestate estates, the general intestacy rules in North Carolina were described, and the importance of having a valid Will to avoid these intestacy rules was discussed. To better understand North Carolina intestate estates, this article presents 10 examples that evidence the specific application of North Carolina’s intestacy rules and explain the specific problems that can arise when North Carolina’s intestacy rules govern instead of a valid Will that expresses a decedent’s testamentary intentions. 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. Example 1 Tom dies without a valid Will. Tom owns $600,000 of real property (real estate) and $360,000 of personal property. Tom is survived only by his wife, Mary. Under North Carolina’s intestacy rules, all of Tom’s real property and personal property transfers to Mary. Example 2 Example 2 is the same as Example 1, except that Tom is survived by his wife, Mary, and one child, Rachel. Under North Carolina’s intestacy rules, Tom’s real property transfers $300,000 (50%) to Mary and $300,000 (50%) to Rachel, and Tom’s personal property transfers $240,000 ($60,000, plus 50%of the $360,000) to Mary and $180,000 (other 50% of $360,000) to Rachel. Example 3 Example 3 is the same as Example 1, except that Tom is survived by his wife, Mary, and two children, Rachel and Jeff. Under North Carolina’s intestacy rules, Tom’s real property transfers $200,000 (1/3) to Mary, $200,000 (1/2 of 2/3) to Rachel, and $200,000 (1/2 of 2/3) to Jeff, and Tom’s personal property transfers $180,000 ($60,000, plus 1/3) to Mary, $120,000 (1/2 of 2/3) to Rachel, and $120,000 (1/2 of 2/3) to Jeff. Example 4 Example 4 is the same as Example 1, except that Tom is survived only by his two surviving children, Rachel and Jeff, and two grandchildren, Cole and Maria, who are the only children of Tom’s deceased child, Natalie. Under North Carolina’s intestacy rules, Tom’s real property transfers $200,000 (1/3) to Rachel, $200,000 (1/3) to Jeff, $100,000 (1/2 of 1/3) to Cole, and $100,000 (1/2 of 1/3) to Maria, and Tom’s personal property transfers $120,000 (1/3) to Rachel, $120,000 (1/3) to Jeff, $60,000 (1/2 of 1/3) to Cole, and $60,000 (1/2 of 1/3) to Maria. Example 5 Example 5 is the same as Example 1, except that Tom is survived only by his parents, Jack and Dorothy. Under North Carolina’s intestacy rules, Tom’s real property and personal property transfer 50% ($300,000 of real property and $180,000 of personal property) to Jack and 50% ($300,000 of real property and $180,000 of personal property) to Dorothy. Example 6 Peter desires that all of his property transfer to his wife, Julie. Peter dies without a valid Will. Peter owns $800,000 of real property and $560,000 of personal property. Peter is survived by Julie and his daughter, Victoria. Under North Carolina’s intestacy rules, Peter’s real property transfers $400,000 (50%) to Julie and $400,000 (50%) to Victoria, and Peter’s personal property transfers $340,000 ($60,000, plus 50%) to Julie and $280,000 (50%) to Victoria. Even though Peter’s testamentary intentions are for Julie to receive all of his property, North Carolina’s intestacy rules govern and require a different result. Example 7 Alice desires that all of her property transfer 15% to her son, Larry, 15% to her daughter, Michelle, and 70% to her grandchild, Elsa; Elsa is the only child of Alice’s deceased child, Felicia. Alice dies without a valid Will. Alice owns $300,000 of real property and $600,000 of personal property. Alice is survived by Larry, Michelle, and Elsa. Under North Carolina’s intestacy rules, Alice’s real property and personal property transfer 1/3 ($100,000 of real property and $200,000 of personal property) to Larry, 1/3 ($100,000 of real property and $200,000 of personal property) to Michelle, and 1/3 ($100,000 of real property and $200,000 of personal property) to Elsa. Even though Alice’s testamentary intentions are for a “15%-15%-70%” allocation of her property among Larry, Michelle, and Elsa as beneficiaries, North Carolina’s intestacy rules govern and require a different result. Example 8 Greg desires that all of his property transfer to a charity. Greg dies without a valid Will. Greg owns $1,000,000 of real property and $900,000 of personal property. Greg is only survived by his mother, Eleanor. Under North Carolina’s intestacy rules, all of Greg’s real property and personal property transfers to Eleanor. Even though Greg’s testamentary intentions are for a charity to receive all of his property, North Carolina’s intestacy rules govern and require a different result. Example 9 Diana desires that all of her property transfer to a trust for her son, Brian, with her sister, Angie, as trustee of the trust. Diana dies without a valid Will. Diana owns $500,000 of real property and $200,000 of personal property. Diana is only survived by Brian. Under North Carolina’s intestacy rules, all of Diana’s real property and personal property transfers “outright” (and not in trust) to Brian. Even though Diana’s testamentary intentions are for Brian to be a beneficiary subject to a trust with Angie as trustee, North Carolina’s intestacy rules govern and require a different result. Example 10 George desires that all of his real estate transfer to his son, Martin, and all of his personal property transfer to his daughter, Cindy. George dies without a valid Will. George owns $800,000 of real property and $500,000 of personal property. George is survived by Martin and Cindy. Under North Carolina’s intestacy rules, George’s real property and personal property transfer 50% ($400,000 of real property and $250,000 of personal property) to Martin and 50% ($400,000 of real property and $250,000 of personal property) to Cindy. Even though George’s testamentary intentions are for all of his real property to only transfer to Martin and for all of his personal property to only transfer to Cindy, North Carolina’s intestacy rules govern and require a different result. The Importance of Having a Will Examples 6 through 10 show the critical importance of having a valid Will for North Carolina decedents. In these Examples, the testamentary intentions of Peter, Alice, Greg, Diana, and George were thwarted by application of North Carolina’s intestacy rules. We all work hard to accumulate property during our lifetimes. We all have the right to generally control how this property transfers on death. By having an intestate estate (no will), a North Carolina decedent in effect surrenders this right to the state. No North Carolinian should make this mistake. Instead, North Carolinians should have valid Wills to express and carry out their testamentary intentions. Conclusion It is highly recommended that you speak with a probate or estate planning attorney to answer questions specific to your situation. If you need help in finding a trusted attorney reach out to me and I will refer you to one. 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. Denise Harper Davis Certified Probate Real Estate Specialist Licensed Realtor 252-902-9006 * 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.

  • North Carolina Intestacy law: Who Inherits Property When There is No Will?

    Denise Knows Probate! Before we begin, let's look at a few words to help you better understand this article. Decedent - Is the person who died Administrator, executor, personal representative - Is the person assigned to manage the decedent's assets. These three all have the same role. Assets - Anything that belonged to the decedent. ex. houses, boats, cars, money, stocks & bonds, furniture, appliances, land. Heirs - Usually it is close family: Spouse, children, parents, uncle, aunts, cousin Beneficiary - The person that the decedent named in the will or an account to receive certain or all assets. Who Does It Go To? North Carolina law provides that if someone passes away without a valid will (also known as dying intestate), North Carolina's intestacy laws will dictate how their property will be divided. The state's probate court will appoint an administrator to handle the distribution of the assets to creditors and beneficiaries. So, this question is often asked," Who inherits the property when there is no will?" Keep reading to find the answers. Need help with probate? 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. What is Intestate Succession in North Carolina? North Carolina Intestate Succession Act dictates the lines of inheritance when there is no will. It names which surviving family members may be considered heirs and in what order of succession they stand to receive an inheritance. The law is complex and more so by family issues such as remarriage. Furthermore, most people who write a will leave their property to their immediate family. Thus, the North Carolina estate laws governing intestate succession generally distribute property in a similar way. The Intestacy laws try to mimic the final wishes of the average person. The Clerk of the Superior Court's Office in the county where the decedent last resided handles the probate process. The probate court will designate an estate administrator to take stock of all assets, settle any outstanding debts or taxes, settle burial expenses, and distribute any remaining funds or property to the beneficiaries. Property exempted from North Carolina Intestacy law Because of the contractual nature of some assets, they are not subject to probate. Such Assets are distributed directly to beneficiaries without the need for a Will or the application of intestacy laws. Policies and accounts such as retirement funds and life insurance often have beneficiaries named. Also excluded from probate would be any other assets held in a joint tenancy with the right of survivorship. Tenancy by the entirety is the most common form of joint property ownership for North Carolina's married couples. When one dies, the surviving spouse automatically takes over the deceased's part of the property, if they purchased the property together at the same time. If your spouse owned the property before you were married or he later purchased a piece of property in his name only while you were married, I would suggest you read the article "Surviving Spouses Property Rights in North Carolina" to get an understanding of your rights as well as speak with a probate or estate planning attorney to advise you. Who inherits property when there is no will? According to the North Carolina intestate succession laws, who inherits property depends on the deceased marital status at death and the number of surviving relations. Also, for married decedents, the distribution of property will depend on whether the property is real or personal property and whether you have surviving parents or children. The following shows how property is shared among survivors according to intestate statutes: Where the deceased was single with living parents If only the parents survive an unmarried decedent, then all the assets will be divided evenly between both parents. However, if there's only one surviving parent, they will inherit all property. Where deceased has a living spouse Without living parents and children, the surviving spouse takes possession of all property. Where the spouse and parents are living A common misconception is that if one does not make a will, their spouse will be the sole beneficiary of their estate. In some instances, this may be true, but in most cases, it is not. If there are no children in the family, but the spouse and parents survive, the spouse will get half of the real estate and the first $100,000 in personal property. The surviving spouse will receive half of the excess if there is more than $100,000 in personal property. In North Carolina, if your spouse's parent(s) are alive and your spouse did not have any children, his parent(s) are entitled to receive half of the real estate and the remainder of the personal belongings. Spouse and one child, or child's descendants, are alive The surviving spouse will inherit the first $60,000 value of the decedent's personal property and half of the excess. The child will get the remaining personal property. However, the spouse and child share in the real estate equally. However, if the child is deceased, the grandchildren will inherit instead. Spouse and two or more children or the decedents of the children are alive In line with North Carolina Intestacy law, the first $60,000 in personal property and one-third of the remaining personal property goes to the surviving spouse. Likewise, one-third of the real estate. The surviving children (or their descendants ) get an equal share of the remaining personal and real property. Where the deceased is survived by children only or their descendants Where only the children survive, they will all receive an equal share of the property and real estate. In the case of a single child, all assets are passed on to that child. However, if a child predeceases the parent, their inheritance will go to their direct descendants. Where there is no spouse, child, or parent alive. The laws governing intestacy offer further guidelines for allocating the decedent's assets equally among more distant relatives, such as siblings, grandparents, uncles, and aunts. The law also extends to nephews, nieces, cousins, etc. Where there are no surviving blood relations The State of North Carolina becomes the sole beneficiary of a deceased's property (a process known as "escheat") if there are no other surviving relatives or heirs. However, this seldom occurs because the law provides for the distribution of the estate to even the remotest of relations to the decedent. Most people without relatives would instead give their estate to a favorite institution of higher learning or charity than let it go into escheat. Children's Shares According to North Carolina Intestacy law The state of North Carolina must recognize your children as your legal dependents/children before they can inherit from you under its intestacy statutes. Consider the following situations that might affect a child's inheritance: Adopted children. As with biological children, legally adopted children are entitled to an intestate share. However, foster or stepchildren not formally adopted will not necessarily inherit. Children placed for adoption. Biological children officially adopted by another family will not be entitled to a portion. However, if the spouse adopts the decedents, biological children, it will not affect their intestate inheritance. Children born after a father's death. Children born within ten months after the parent's death will get a share of the intestate inheritance. Children born outside of marriage. Children born outside of marriage are entitled to an intestate inheritance only if they were officially legitimated and paternity was recognized. Suppose a child was born out of the marriage a year after the father's death. In that case, they could inherit if paternity was confirmed through DNA testing. Check out the article "North Carolina Intestate Estates – Part II" this article presents 10 examples that evidence the specific application of North Carolina’s intestacy rules and explain the specific problems that can arise when North Carolina’s intestacy rules govern instead of a valid Will that expresses a decedent’s testamentary intentions. Conclusions Hello, I'm Denise Davis. The owner of North Carolina Probate Solutions and a licensed realtor with EXP Realty. I chose to specialize in the probate probate niche because I am also a registered nurse who have worked with hospice and palliative care patients and families, So I understand the stress probate can bring, especially while grieving. If you need to sell your loved ones home to pay off debt or to distribute funds to the heirs and/or beneficiaries lets talk to see how I can help you. I provide options, so whether it's listing your home on the market or getting you a fast cash offer I can help you. 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. Denise Harper Davis Certified Probate Real Estate Licensed Realtor 252-902-9006 * 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. Other Related Articles Understanding The Petition to Partition in Probate: Resolving Estate Disputes

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