If you’ve recently lost a loved one, it’s important to know how probate works in North Carolina. It is a topic that many people don’t know anything about until they face it for the first time. The following paragraphs describe in some detail the rules regarding probate in North Carolina. Let’s get started with the basics.
Do All Probate Rules Work the Same Way?
No, probate rules vary state by state. That’s why it is important for you to have an understanding of how probate works where you live. In North Carolina, the law requires putting a deceased person’s estate through the probate process whether the person died after having a valid will (testate) or without a valid will (intestate).
If there is a will, then the person’s property and other assets descend to the named heirs in the manner described in the will. If there is no will, then the person’s property and other assets descend to the heirs according to the provisions of state law – the North Carolina Intestate Succession Act.
Does Every Estate Require Probate Court?
Now, one wrinkle in North Carolina probate law is this: probate is not required in every case. Whether the state requires probate depends on what property and assets the person owned at the time of death. That is, probate is only required when the person who died had property in their own name or had rights to receive property in their own name.
Take, as an example, 100-year-old Mary who died with no spouse or children. Mary’s estate must go through probate because she owned the following:
- Bank accounts solely in her name (no co-owner or beneficiary);
- Real property (her home), as sole owner;
- Real property Mary owned as a tenant-in-common with a relative;
- Stocks, bonds solely in her name;
- Other property such as jewelry, clothes, furniture, and a car titled in her name only.
The law allows some types of property to avoid probate, such as:
- Property held by a revocable trust;
- Assets held as joint tenants with rights of survivorship (on death, the property goes to the other joint tenant in sole ownership);
- Assets held in joint tenancy by the entirety (joint tenancy between a husband and wife);
- Life insurance or retirement accounts that name a beneficiary;
- Bank accounts with a payable on death or transfer on death provision.
The Kickoff: How Does the Probate Process Begin?
The probate process begins when someone who has the original will submits the will to the probate court. This is often the deceased person’s attorney, or a family member who has the original will. The court then appoints a personal representative to carry out the provisions of the will. The will often names the personal representative but if the will does not do so, the court will appoint a personal representative.
The clerk of the Superior Court in each North Carolina county is the probate judge for that county. The elected clerks and their assistant clerks hold the hearings and is the presiding judge for most estate cases. If a will is contested, then the Superior Court Judge will preside over the hearing with regard to the challenge.
Who Can Become a Personal Representative?
The law dictates who can be a personal representative for a probate proceeding:
- The surviving spouse;
- Anyone designated to receive property under the terms of the will;
- Anyone who will receive the decedent’s property under the law (without a will);
- Next of kin;
- Any creditor to which the decedent owed money; or
- Any person of good character who lives in the county and applies to the clerk of the probate court to be named administrator.
The personal representative has an important job, and perhaps a big one depending on the size of the estate the deceased left behind. The job includes the following:
- Pulling together all the deceased’s assets;
- Paying the deceased’s final expenses, such as funeral expenses, final taxes, any creditors the deceased owes, and the estate’s administrative expenses; and
- Distributing the assets to the appropriate persons after paying the estate’s expenses.
Does North Carolina Apply the Same Process to All Estates?
No. The size of the estate will determine the type of administrative process. For example, the law permits small estates to use a simplified process. Small estates are those whose net value is not greater than $20,000 (or $30,000 if the surviving spouse is entitled to the full estate). This type of probate uses administration by affidavit or a summary administration. The simplified process does not require a personal representative appointment and the estate must not contain any real estate or property that requires a title.
All other types of estates must use a formal administration.
Is a Reading of the Will Required in North Carolina?
No. North Carolina law does not require a formal reading of the will.
Can I File the Will Myself?
A person may hire an attorney to file the will to start the probate process, or an individual may file the will on their own. There are steps to take to file a will for probate on your own:
- Find the original will (look in desk drawers, safety deposit boxes, wall safes, attorney’s safekeeping, or even with clerk of probate court);
- Obtain death certificate;
- Locate assets;
- Then, contact the clerk of the probate court to begin the legal process.
Moving Forward
Facing the myriad of actions that must happen after someone dies is not easy. In addition to funeral arrangements, you may also need to figure out how to handle the estate of a recently deceased family member. That’s where we can help.
We know the probate process is unfamiliar and daunting. You may have questions but don’t know where to start. With the right lawyer at your side, navigating the probate process in North Carolina can go a lot smoother. To get started, call us at 910-509-7287. Or click here to contact our Wilmington probate attorneys.
The information provided herein does not constitute legal advice and is provided for informational purposes only.