ESTATE ADMINISTRATION & probate

Probate is another word for estate administration and is the process that is followed to settle a deceased person's affairs after that person has passed away. Probate is managed through the Clerk of Superior Court in the county where the deceased person resided and the elected Clerk of Superior Court serves as the judge for the probate process. North Carolina probate law sets the rules and procedures that must be followed to settle the deceased person's affairs. Commonly, these include settling the person's lawful debts and distributing the person's personal property and real estate to the appropriate people. 

What is an Estate?

An estate is all the money and property that a person owned at the time of death. Property includes both real estate and personal property such as a car, furniture, jewelry, or other personal belongings. 

Before distributing any of the deceased person's property, it is important to determine whether probate is necessary. If probate is necessary and if the deceased individual had a will, then the individual named in the will as Executor may be the person who goes through the probate process. If the person died without a will, then a family member or friend may volunteer to be the administrator of the estate and go through the probate process. 

What happens if my loved one died without a will?

If your loved one has died without a will, then the estate is referred to as an "intestate estate" and North Carolina's intestacy laws will determine who will inherit your loved one's property. If your loved one was married at the time of death then their property will be divided among the spouse and children, if they had children, or divided among the spouse and your loved one's parents, if any parents are still living. If your loved one had children, grandchildren, or great-grandchildren, etc. but no spouse, then their property will be divided among the children and the  children of any deceased children. If your loved one had no children, grandchildren, etc., then their property will be divided among the following groups in the following order: 

1. parents;
2. siblings, and the descendants of any deceased siblings;
3. grandparents;
4. aunts, uncles, and the descendants of any deceased aunts and uncles

Not every estate needs to go through the probate process. Typically, only those assets that are owned by the deceased person individually will need to go through probate. Assets that the deceased person owned with a spouse, assets for which a beneficiary or beneficiaries are named, or assets that are held in a trust may not have to go through probate before distribution.

There is no definitive answer as to how long the probate process will take. As a minimum, you can expect it to take at least 3 months since creditors must have 90 days to respond with any claims against the estate once the notice to creditors is first published in the newspaper. Estates that are more complex can take longer; some estate probate cases can take up to a year or more to complete. And if there is likely to be a challenge to the will or estate, then you can expect that to add to the length of time it will take you to complete probate.

Generally, for many estates, the probate process includes the following steps: 

1. Locate the will.
2. Submit the will to the Clerk of Superior Court for probate.
3. Apply for letters testamentary or administration.
4. Identify and locate the heirs.
5. Publish a notice to creditors in the newspaper.
6. Identify creditors.
7. File the 90-day inventory with the Court.

Letters are legal documents that are issued by the court that authorize that person to settle the deceased person's estate. If the deceased person had a will, then the letter issued by the Court will be called Letters Testamentary and the person authorized to settle the estate is called the Executor. If the deceased person died without a Will, then the letter is called Letters of Administration and the person authorized to settle the estate is called the Administrator. 

You will need to visit the Clerk of Superior Court in the County in which your loved one resided at the time of their death. It is always a good idea to call ahead because some courts will allow walk-ins while others are requiring appointments for estate administration. 

Be sure to bring the following with you to your appointment: 

1. the original will;
2. certified death certificate; 
3. application for Letters Testamentary or Letters of Administration
4. check or cash to pay for the application fee

If you are the Executor named in a will or a family member of a loved one who has died without a will, and you are faced with probate, we can help you through the process. We have helped many people become Executors and Administrators and walk through the probate process with them.