What Is Probate? Overview of the North Carolina Probate Process

by Jackie Bedard on March 23, 2009

in Probate

Probate is required whenever a person dies owning assets in his or her name, regardless of whether the decedent had a valid will.  After a person dies, probate is the legal process of administering the estate (i.e. the possessions and liabilities) of the deceased person, who is referred to as the “decedent.”  The person who administers the estate is called the “executor” or “personal representative.”  In North Carolina, the probate process is overseen by the Clerk of Superior Court.  Sometimes probate is also referred to as “estate administration.”

The probate process starts when a family member or personal representative of the decedent files the decedent’s will and other forms and documents with the Clerk of Superior Court in the county of the decedent’s personal residence.  If the decedent did not have a will, then he or she is considered to be “intestate” and a separate form is filed requesting permission from the Clerk of Superior Court to administer the decedent’s estate.

During the Probate Process

During the probate process, the personal representative is required to notify all beneficiaries of the estate, gather all of the decedent’s assets, file an accounting of all of the decedent’s property, settle any debts the decedent owed to creditors, and pay any taxes or administrative expenses owed by the estate.  The role of the Clerk of Superior Court is to oversee the process and ensure that the personal representative properly carries out his or her duties and obligations.

Not All Assets Are Subject to Probate

Some assets are excluded from the probate process in North Carolina.  Assets that are held in joint ownership with rights of survivorship, such as a marital home, will pass automatically to the survivor without being subject to probate.  Any assets that are controlled by a beneficiary designation, such as some retirement accounts, 401(k)s, IRAs, life insurance policies, or annuities, are generally not subject to the probate process.  Finally, if assets are held in a trust, they may not be subject to the probate process.

Concluding of the Probate Process

The probate process ends when all of the decedent’s debts, taxes and administrative expenses have been paid and all of the decedent’s remaining possessions have been distributed to the decedent’s beneficiaries.  At such time, the Clerk of Superior Court will release the personal representative from his or her duties and issue what is referred to as a “closing letter” indicating that the probate process is complete.

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Why You Should Avoid Joint Ownership | North Carolina Wills and Trusts
April 7, 2009 at 9:45 pm

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Margaret Lawson January 12, 2010 at 12:10 pm

In North Carolina….anything goes…if you have someone who wants to stir up trouble…..watch out….because any one person can tell all sorts of lies and get by with this….My dear aunt passed back in 2004 and I was her power of attorney….she was not in good health…..she had actually lived a life of hell since 2001…when her only brother died….and the younger sibling and her family extorted 5 acres of land from her….which was then taked over by an attorney who told her that he would get the property back for her for $3000…..only if this money was paid by 5 o’clock the day she talked to him about this….and the attorney also told her he would only be “doing this for the sake of her brother” whom the attorney knew….

Anyway….in 2003 a mediation was held….yes…it took over 2 years for the attorneys to get a mediation lined up…and this was held and the attorneys and mediator then victimized my elderly aunt again and forced her to settle on a mere amount for the extortion of her property….she was forced to accept 2 paymts….one of which was paid right away…..she died before the 2nd payment came due…and the younger sibling and her family refused to make the 2nd payment…and stirred so much stink and lies since the will did not appoint the sibling as administrator and she was not able to take everything over…..believe it or not….the estate office appointed another attorney to oversee this…there were bills which were owed under $1200….and the attorney hired another attorney to get a deed of the homeplace property overturned and bring it back into the estate but they did not even go after the 5 acres of land that was extorted from this elderly woman….the estate has still not been settled….and the attorney appointed to oversee the estate has refused to reimburse the expenses which were paid on behalf of the woman…so anything goes in NC….just be a bully and aggravate the poop out of someone until you get your way…..I know that this works…it does not matter if it is legal or not….attorneys do not have to be held accountable for anything that they do…and the strange thing is ……these people can get by with it….

That’s my story and I’m sticking to it….

Margaret Lawson

Mary May 7, 2010 at 6:21 pm

I tend to agree with you. I have never seen an estate settled quite the way it is in NC.

I cannot believe a deceitful executrix is able to get away with telling probate one thing and probate does not even check to see if everything adds up. The executrix before her mom’s death, as POA, removed all monies from the mom’s savings account in order to establish an account in her own name. There is an unpaid nursing home bill in the amount of close to $7K. Before her mom’s death, her mom’s house was put into her name as well. The house is going to her in the will anyway. However, I would believe that to be an asset and if need be to use that for part of the final expenses.

I am disappointed in the PROBATE COURT proceedings in NC for letting the deceitful to get away with that type of thing.

And, that is my story,
-Mary

Margaret Lawson September 16, 2010 at 7:01 am

Mary, I would think that the nursing home would get their money one way or another….as the system is set up to pay all of the bills which are owed…..as in the estate of my aunt….the lawyers went after the homeplace and paid the $1200 which was owed…and then the attorneys bill took all of the money except for $100 that each of the heirs received….actually, the appointed attorney, was allowed not to reimburse the person who paid 5 years of taxes on the property or the funeral bill which was also not reimbursed…..but this the the way the system works….the attorneys are allowed to “steal” and it is a legal way for them to do so….

I am sure though that in time….the people who do such as this will be held accountable for their “good/evil deeds” which have been done on the sly…..judgement day will be right around the bend….

Angie January 18, 2011 at 7:06 pm

I agree North Caroline has the worst Probate laws.
The Executor and his attorney are paying themself, while the rest of us are going broke paying for the funeral and taxes.

The Executor stole property out of the house, and there is not anything we can do.

Unbelieveable! Probate in North Caroline is legalized crime for some people.

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