The North Carolina Probate & Estate Administration Process
Navigating the probate process on your own can be extremely challenging, even for smaller estates. A probate lawyer understands North Carolina law and will inform you of the obstacles along the way to avoid hindering the process.
Filing a Petition with the Court
The executor — the individual responsible for managing the estate — must file a petition with the County Clerk of Court to begin the probate process. The executor must gather the will, proof of death, and a general inventory of the estate’s assets. Once the executor has this information, they can now contact the Clerk of Court to gain approval to be an executor of the estate.
The Court Appoints a Personal Representative
Once the petition is approved, the probate process will begin, and the personal representative is granted authority over the deceased person’s estate. Personal representatives have a fiduciary responsibility to act in good faith and the best interest of the beneficiaries involved. If a will doesn’t exist or if a will exists but fails to name an executor, the court will appoint a personal representative. Only certain individuals qualify, including:
- Surviving spouses
- Anyone the decedent chooses to distribute property to
- Anyone entitled by law to receive property from the decedent if a will doesn’t exist
- Next of kin
- Creditors the deceased person owed before their death
- Any person of good character in the respective county who applies with the court
The Court Issues Letters of Testamentary
When an individual is appointed or granted authority to be the executor of the decedent’s estate, the court will issue legal documents called letters of testamentary. These documents give the executor full access to the decedent’s assets and allow them to begin distribution to beneficiaries outlined in the will.
What Assets Go Through Probate?
Probate is reserved for assets that remain in a person’s name after they die — and could include anything from real estate to household furniture. If a decedent doesn’t have a will detailing who will take ownership of these assets, it will be up to the court to decide how they’ll be distributed through intestate succession statutes.
Avoiding the North Carolina Probate Process
Although probate is complicated, expensive and time-consuming, it doesn’t have to be. Many tools are available to create shortcuts in the process — and if your family must endure probate, a well-crafted estate plan is the best way to ensure a seamless transfer of assets.
A revocable trust is one tool that allows individuals to make decisions regarding their assets before it’s too late. Revocable trusts enable you to transfer as many assets as you wish into a trust where they will remain until your death.
After your death, your assets will be transferred to your appointed successor trustee, who then has the fiduciary responsibility of distributing your assets per your terms — much like a personal representative outlined in a will.
However, unlike a will, a trust transfers assets immediately after your death — bypassing the probate process, which keeps the assets of your estate private. Furthermore, this trust can be revoked at any point in your lifetime. Ask your attorney if your assets qualify for a revocable trust.
In North Carolina, two people can choose to own property with the “right to survivorship” — meaning that when one owner dies, the property will be immediately transferred to the surviving joint owner. With this process set up beforehand, you don’t have to go through probate to establish ownership and transfer of property and other assets owned jointly with the right of survivorship.
Payable-On-Death & Transfer-On-Death Designations
Certain assets allow you to put systems in place that transfer them to designated beneficiaries upon your death. Consider setting up a payable-on-death designation for your bank account or a transfer-on-death designation for your stocks and bonds, as well as applicable retirement accounts. This will prevent significant assets from going through the probate process and could provide your surviving family with immediate financial assistance.