Probate in North Carolina

Probate

If you are here to learn about North Carolina probate after the passing of a loved one, we first want to say that we are very sorry for your loss.  We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.

With that said, probate in North Carolina is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries.  Probate in Durham County is also necessary to:

• Prove the validity of the will
• Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
• Inventory and appraise the estate property
• Pay any debts or taxes (including estate taxes)
• Distribute the property as direct by the will—or by the state law if there is no will

What’s so bad about probate in North Carolina… and what should I do next?

Many residents in Durham County have heard that probate is bad news.  It tends to be very expensive, it’s time-consuming, and it’s also a public process.

The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.

How is a Probate Started in North Carolina?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a [Application For Probate And Letters, Form AOC-E-201, with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the application.

How is the Executor Chosen?

If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.

Could I Be Held Personally Liable For Making a Mistake as an Executor?

Being an Executor is a big responsibility. North Carolina law contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they may be held personally liable for losses to the estate.

My loved one had a trust…will we need to go through probate?

In most cases, no.  If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement. To speak to someone about property held in Trust, please click here.

Unfortunately, many people who have a Trust think they have it all taken care of.  But time and again, family members’ of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of probate, even though the person they loved had a trust.

What Assets are Subject to Probate?

Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts with Rights of Survivorship are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.  Talk to an attorney if you have questions about your specific situation.

How is Distribution of the Estate Handled if there is no Will?

If there is no will or trust, the estate will be distributed according to North Carolina probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).

How long does Probate take?

The length of time required to sucessfully complete the probate process can vary dramatically depending on the facts and circumstances surrounding the particular estate. However, it is worth noting that in North Carolina, the process will typically take at least four to five month or longer. Because creditors in North Carolina are permitted a 90 days window fro the date of publication of the notice of probate to file their claims, it should be expects that the probate process will take more than four or five months. Please be mindful that some probate matters take years to resolve because of their complexity. As a rule of thumb, the greater the estate the longer it will take. It is also worth mentioning that the choice of executor may plan a signficant part in moving the estate forward as a competent and experienced executor will likely be able to navigate the probate processed more quickly.

How much does Probate Cost?

In North Carolina the cost of probate will vary depending on the size of the estate. However, North Carolina law governs how much the estate should pay. It is worth noting that that this can be a difficult question to answer without going into a detailed look at the estate’s assets. It is fair to assume that the total probate and administrative costs tend to range between 2-8% of the estate — however, this is will so depend and vary on the size of the size in question. For example, smaller estates tend to spend a larger percentage of their overall value on expenses when compared to large estates.

Getting Help: Choosing The Right Attorney For Your Probate Case

The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same!  Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.

You don’t have to use the attorney who prepared the Will either!  Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.

Contact Pierce Law Group For A Complimentary Post-Death Estate Review

If you’re ready to get started with the probate process after the passing of a loved one, please contact our experienced Durham County probate attorneys at 919-584-5556 or use this link to schedule a no-obligation consultation to help determine your next best steps. We are here in service to making this all as easy as possible on you.

During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps.  We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.