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 process of probate is used to ensure that an individual’s estate is being administered in a way that conforms with probate laws. This is one of the reasons that a qualified probate lawyer can make such a difference. He or she can help family members and other heirs navigate the process and ensure that all steps are being completed properly.
Many of those who engage in estate planning do their best to avoid probate by creating a living trust. This helps to set out their wishes in advance and allows for a trustee to follow through on those wishes when the time comes. Those who simply have a will and those who have not planned their estates at all will have their assets go into probate.
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.
Read our in-depth article about the probate process in North Carolina.
Common Concerns With Probate
One of the biggest concerns about probate is the fact that it is a public affair. Because the will or estate goes through the court system, the information that arises is available to the public. While this may not be a major concern for some people, others prefer to keep matters of money, property, and inheritance private.
Another common concern is cost. Between court costs, executor commissions, legal fees, bonds, and other expenses that come up during the probate process, it is not uncommon to see these expenses eat up to 3 to 5% or more of the estate. For some families, these fees are negligible, but in many cases, these costs significantly affect the overall inheritance.
Finally, if you are involved with an estate that is going into probate in Wake County it is important to be aware that it can be a lengthy process (see our article on how long probate takes in North Carolina). An accounting must be done of all the assets, creditors must be contacted regarding any money owed, and assets may need to be sold off. All of these things take time.
We Can Help With All Probate Matters
A good probate lawyer can help make this process smoother. He or she will also understand the concerns of those involved and will keep clients up to date and informed on the status of their case. If you would like help with administering an estate in Cary, Raleigh, or elsewhere in North Carolina, give our office a call at (919) 443-3035 to see how we can help.