Denise Knows Probate!
Probate Process in North Carolina
Going through the probate process in North Carolina can be complicated, but there is professional help available to guide you through it.
Even with the right knowledge and preparation, probate can still be a lengthy process. The North Carolina probate process can generally take six to twelve months from the time of death to settle the estate in North Carolina, but it may take longer depending on the complexity of the estate and whether any disputes arise.
In this blog post, we will discuss what probate is and the probate process in North Carolina. We will explain the roles of the personal representative, creditors, beneficiaries, and heirs. We will also discuss common probate issues that arise in North Carolina such as will contests, family property disputes, and surviving spouse rights.
We’ll also provide you tips on how to make the probate process easier when filing in North Carolina.
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What is probate and why is it necessary in North Carolina
The North Carolina Probate process is a legal process of settling an individual's estate after they have passed away. In North Carolina, after the decedent's assets have been inventoried, the Clerk of Superior Court oversees the probate process to ensure that the decedent's debts are paid, tax liabilities are taken care of, and assets and property and any remaining funds are distributed according to the decedent's wishes.
Probate is an essential part of handling someone's affairs after their death, and helps to ensure that the decedent's wishes are actually and accurately being distributed.
Probate may be as simple as a few documents that must be filed with the Clerk of Superior Court at a county level, or it may involve more complicated court proceedings depending on the complexity of the decedent's financial and legal situation.
It is highly advised that you use the help of an experienced probate attorney to help you with filing probate. However, If you are thinking about filing probate without the help of a lawyer, we have written this article to help guide you: "How to file probate in North Carolina without a lawyer."
North Carolina law – roles of the personal representative, creditors, beneficiaries and others.
It is important to understand the terminology and the roles of those involved in probate proceedings. So we will explain what each one is.
Decedent - The person who has passed away.
Executor - The Executor is a person appointed in the will to handle probate proceedings. If the person appointed is a female then she would be considered the executrix.
Administrator - If there is no executor appointed in the will then the Clerk of Superior Court will appoint an administrator to handle probate proceedings. if the person is a female her title would be administratrix.
Personal Representative (PR) - This is a generic term used for both Executors and Administrators. The personal representative is responsible for gathering the decedent's assets, paying any debts or taxes that may be due, and distributing what remains, according to the wishes outlined in the will or state probate law.
Creditors - A creditor is any person or entity who has a claim against the estate of the deceased. These claims can range from outstanding medical bills to credit card debt and other unpaid bills. The PR needs to contact all creditors and notify them about the probate proceedings for their debts to be paid.
Beneficiaries - These are the people who are named in the will and will inherit the decedent's property or assets upon probate being finalized. The PR needs to contact all beneficiaries and notify them about probate proceedings for them to receive their portion of the estate.
Heir - An heir is a person who has been declared by the probate court to have a legal right to a portion of the decedent's estate, regardless of whether they were specifically named in the decedent's will.
Now that we know the roles let's focus on what the personal representative needs to do to start the probate proceeding.
The first thing to do is to locate the will
Before going to the clerk of superior court to file probate the first thing the personal representative needs to do is to get a copy of the decedent's will if he left one.
If one was prepared, The personal representative must read it and make sure he understands the instructions left by the decedent. If he does not have a clear understanding of the instructions written in the will he should seek out professional help to assist him.
It is also very important that he realizes that the will has no legal effects, no authority, and no final word UNTIL it has been validated by the Clerk of Superior Court and the court appoints an executor or administrator to carry out the decedent's wishes.
In North Carolina, you have 60 days from the date of the decedent's death to file the will. If you are the named executor and you do not file the will you could be held liable for your actions or inactions.
The second thing, obtain copies of the death certificate
You need to obtain at least six certified copies of the decedent's death certificate. These will be necessary for filing probate, as well as for filing taxes, transferring assets, and more. You can obtain copies of the death certificate from the Registered of Deeds office or North Carolina Vital Records in the county where the deceased passed away.
The Third thing is, Create a preliminary inventory list
The probate estate is defined as all property owned by the decedent, including real estate, personal property, financial accounts, stocks, and bonds. The North Carolina probate process requires that you create an inventory list of all of the deceased person's assets and account for any debts or other obligations of the decedent.
It is very important to be accurate in creating the probate inventory list. This will help ensure that all probate assets are accounted for and show if enough funds can be generated to payoff creditors and taxes.
The fourth thing is to file probate with the Clerk of Superior Court
Once you have a copy of the will, death certificate, and probate inventory list, you can file for probate with the probate court. You will need to submit a probate petition to the court and pay any necessary filing fees.
As of January 2023, the probate filing fee in North Carolina is $120.00.
You will have to file the probate petition in the county where the decedent lived and file ancillary probate if the decedent had property or assets in another state.
Once everything has been filed with the North Carolina court and the clerk has validated the will and appointed the estate executor or an estate administrator the probate proceeding can begin.
North Carolina Letters Testamentary/Letter of Administration
After probate has been opened with the court, a letter testamentary or letter of administration is issued by the Clerk of Court. These documents are the personal representative’s official appointment and proof that they have been authorized to administer and distribute the estate.
The Personal Representative will show this letter to any financial institutions, attorneys, or other parties that may need to verify the probate process. Without this letter, banks, credit card companies, and other entities may not recognize the Personal Representative’s authority over the estate.
Notice to Creditors
After probate is opened in North Carolina, a Notice to Creditors must be published in a local newspaper once a week for four consecutive weeks.
This notice informs creditors that they have a certain amount of time to submit a claim for any monies owed by the decedent.
The Personal Representative must also notify known creditors of probate proceedings in writing, and those wishing to make a claim can do so by submitting a creditor’s claim form with the probate court.
If the creditors do not file a claim within the specified time frame, they forfeit their right to any funds owed to them by the estate.
Selling Real Estate and Personal Assets
In probate proceedings, the Personal Representative is responsible for taking inventory of all real estate and personal assets.
This includes vehicles, jewelry, furniture, and any other items of value that may be a part of the probate estate.
The Personal Representative must then submit this inventory to the probate court before they can transfer ownership or sell any property.
They may need to sell the assets to get the funds to pay off debts, taxes, probate fees, and other expenses.
These funds are to be placed in an estate bank account and should never be placed in the representative personal bank account.
In the North Carolina probate process, the probate court must approve any sales of real estate before they can be finalized.
Distributing Assets to Beneficiaries:
After all debts and other probate costs have been paid off, the remaining assets that make up the probate estate can be distributed to the beneficiaries.
The Personal Representative is responsible for making sure that all of the probate assets are transferred to the proper recipients and must also provide an accounting of all probate transactions.
This includes keeping records of all purchases and sales, as well as any transfers or distributions made from probate funds.
Common probate issues in North Carolina
Probate matters can be complex and difficult to navigate even when a will is in place. In North Carolina, as well as in many other States several common probate issues can arise during this process, including:
-Unable to locate the will. Check safe deposit box, Attorney's office as well as searching in the house under mattresses, closets, and dresser drawers should all be checked if the will has not been found.
-Will contests: If someone believes that a decedent’s will was not executed properly or contains invalid provisions, they may challenge it by filing a will contest motion with the Probate Court.
-Family property disputes: Disputes between family members over how both real and personal property should be divided can lead to probate litigation.
-Surviving spouse rights: In some cases, the probate court may determine that a surviving spouse is entitled to a larger share of the decedent's estate than what was provided for in the will.
-The chosen executor not wanting the role. In this situation, the probate court may appoint an alternate executor or administrator, which can delay the process.
Probate issue and disputes can suddenly appear long after a will or trust is formed and require extensive research into state statutes to be resolved properly.
Tips to make probate as smooth and efficient as possible
Probate is an intimidating process for those who are unfamiliar with it, but there are ways to make it simpler.
Probate in North Carolina should begin with careful research, ensuring that all involved parties have a complete understanding of the North Carolina probate law, as well as their rights and responsibilities.
North Carolina Probate Solutions can offer invaluable direction throughout the process if you find yourself needing help.
Utilizing an attorney can also help to make sure that steps are taken securely, safeguarding against undue delays or expenses.
During probate, accurate records must be kept of all documents and communications to resolve any issues quickly.
Finally, if someone is going to select a personal representative, choose someone trustworthy and dependable who will remain organized and open-minded while acting on behalf of the estate's beneficiaries.
The probate burden can be eased if approached with some preparation and forethought - following these tips can go a long way towards making the transition easier for all involved parties.
Resources available for help with probate proceedings in North Carolina
Probate proceedings can be complex and time-consuming, especially in North Carolina. Fortunately, there are a wealth of resources available to help those navigating the probate process.
North Carolina Probate Solutions can offer guidance and answer questions and concerns as needed throughout the entire process, also helping to ensure that probate forms are correct and complete.
Tax agencies are on hand with helpful advice on Probate taxation. Additionally, there are a variety of books, websites, and other resources available to those who need more information or additional help understanding their Probate roles.
Probate resources can be valuable when it comes to ensuring that probate proceedings for North Carolina run smoothly and quickly.
The probate process in North Carolina has certain time frames that must be followed for probate to move forward and ultimately conclude.
Don't Do Probate Alone
Hello, I'm Denise Davis. The owner of North Carolina Probate Solutions and a licensed realtor with EXP Realty in Greenville NC. I chose to specialize in probate because of my experiences working as a registered nurse with hospice and palliative care patients and families.
Because of the many families I have worked with who have lost a loved one, and my own personal experiences, I understand the hurt, pain, and disappointment that death brings. Trying to deal with probate and the lost of a loved one can feel like a tremendous load to carry.
I know probate can be both emotional and frustrating and can add additional stress to an already stressful time in life.
I understand the probate process and what is required to bring the process to completion. If there is something that I do not know, I work with experienced attorneys, contractors, accountants, inspectors and many other professionals who I can turn to, to get you the answers and help you need.
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.
If you find yourself having questions or needing guidance with probate matters, please feel free to reach out to me!
[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.]
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, guidance or advice.