What Is Probate?
Probate is the process of “settling” and closing an estate after someone passes away. It is a legal process that involving the cooperation with a local court, with each state operating under different rules and procedures.
It is during the probate process that a last will and testament, and a critical element of any estate plan, is authenticated and examined. A will deemed valid will serve as a guide for moving through probate, including doing everything possible to honor the final wishes and intentions of the deceased. Steps of probate include identifying heirs, managing any disputes, settling outstanding debts, and distributing assets.
The costs and time associated with probate vary by the size and complexity of the estate being probated. Smaller, simpler estates with relatively few assets can often be settled in several weeks. Larger estates with numerous assets can take far longer, especially since valuable property tends to be the subject of protracted disputes amongst disgruntled heirs.
How To Avoid Probate in North Carolina
Everyone goes through some level of probate. Though estate planning can reduce your exposure to probate, the practice does not allow you to avoid probate entirely. Every person must have their estate formally settled in a probate court. The extent and steps of probate depend on the nature of the estate being settled. North Carolina offers several streamlined and expedited probate processes for smaller estates with minimal assets.
It is possible to claim a certain amount of personal property via affidavit and avoid the majority of the probate process in North Carolina. To do so, the total value of the deceased’s estate cannot exceed $20,000, excluding any real estate, or $30,000 if the surviving spouse was set to inherit the property. You can file an affidavit with the court attesting to the qualifying value of the property. Should the court agree, you will be granted an order that allows you to facilitate the transfer of ownership of that property. That person will then be responsible for paying any outstanding debts and distributing assets in accordance with the deceased’s will or state intestacy laws.
Within 90 days of the original court approval, the person must file another affidavit inventorying the payment of debts and settling the estate. This in effect “closes” the estate and avoids the larger probate process.
North Carolina also offers an accelerated and straightforward summary probate option. If the sole named beneficiary or heir to the deceased is their surviving spouse, the spouse has the ability to petition the court for summary probate. If the court agrees, the spouse receives permission to collect assets, pay any remaining debts, and file a final notice with the court, again closing the estate without entering the more protracted probate process.
Proving the Will and Selecting the Personal Representative
If your loved one names multiple beneficiaries and/or their estate’s value exceeds $20,000, their estate will likely have to go undergo the full probate process. This begins by identifying and granting formal authority to the personal representative of the deceased. It will also include
Hopefully, your loved one left behind a last will and testament that names an executor. This individual, often a family member or legal representative, will be responsible for managing probate and carrying out the final wishes of the deceased.
In order for the designated executor to be approved, the probate court must first “prove” and recognize the last will and testament as legitimate. Formalizing a will in North Carolina involves the presence and signatures of two witnesses. If there is any doubt about the authenticity of the will, those witnesses may need to be summoned to testify.
Many probate delays start with an inability to efficiently prove the will. It may take time to track down witnesses, or they may not be available. There may be other factors, like family members that stand to benefit from the estate but are frustrated with the size of their inheritance disputing the will’s legitimacy. They may claim the deceased was unduly influenced or was not of sound mind when the latest draft was formalized. These conflicts will need to be resolved before probate can proceed and assets can be distributed.
Our Raleigh probate attorney can work with you to resolve disputes over wills as quickly as possible. We are familiar with how these conflicts are adjudicated and can leverage our knowledge to help achieve a positive outcome.
Once the court recognizes a will, the executor named therein will be granted the ability to manage the estate. Should there be no valid will or the named executor is for some reason unavailable, the court will instead appoint an administrator. In North Carolina, a surviving spouse generally has the privilege of assuming the role of personal representative should one not be named. Otherwise, an individual seeking to become the personal representative will need to petition the court.
An important thing to note is that executors or administrators who are not residents of North Carolina will need to appoint a resident to receive court documents. They may also be required to post a bond that protects the estate in instances of incompetency.
Inventorying Assets
Once an executor or administrator – the deceased’s personal representative – has been granted authority by the court, the probate process begins. Their first job will be to evaluate all of the nonexempt elements of the state and inventory them. This can include getting appraisals of certain types of property, such as real estate.
Assets placed in trusts and certain types of accounts that are payable to a beneficiary upon death are exempt from probate. The value of these items also do not contribute to the total value of the deceased’s estate. This means that effective estate planning can help larger estates qualify for streamlined options.
Resolving Debts and Obligations
Personal representatives will need to place an advertisement of the deceased’s probate proceeding in a local newspaper for four weeks. This gives creditors the opportunity to file claims about any outstanding debts. In addition, the personal representative must undertake a reasonable investigation to identify outstanding debts of the deceased and directly contact those creditors.
There are some situations where the deceased might owe more money to creditors than what the estate is presently worth. North Carolina enforces rules over what debts receive priority in these instances: Assets with liens attached must be paid first, then funeral and burial expenses, then taxes.
It is possible that not all debts may be ultimately resolved, but the estate’s assets may need to be liquidated to pay as much as possible, even if this means the asset cannot be distributed in accordance with the deceased’s wishes. However, there is an exception for monetary support for a surviving spouse and minor children. Those immediate family members are entitled to one year of financial support.
Finally, the personal representative is responsible for filing final state and federal tax returns for the deceased. Federal estate taxes will not apply to a grand majority of estates. Their total value must exceed $11.58 million as of 2020, and assets protected by trusts do not contribute to this total. North Carolina no longer has a state level estate tax.
Distribution of Assets and Concluding the Process
Once all debts have been paid, the personal representative can begin the distribution of all remaining assets. If a will is available, property should be distributed in strict accordance with the deceased’s written intentions. Otherwise, assets must be divided in accordance with North Carolina’s intestacy laws, which dictate that property is given to the surviving most immediate family members.
The personal representative is required to submit a final report to the probate court. This document and its supporting evidence should include a full accounting of every action the representative took, including the placement of newspaper advertisements, contacting of creditors, payment of debts, and distribution of assets. Upon receipt and acceptance of this report, the court will formally “settle” and close the estate.
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