Probate & Estate Administration
What does a probate lawyer do?
Dealing with the loss of a loved one is hard enough without navigating probate and estate administration laws. Legal processes can be challenging; hiring a probate lawyer to help you address complex legal matters will allow you to grieve without added stress.
Regardless of whether or not a will was drafted, the estate of a person who has passed must be settled. If the deceased person left a valid will, assets will be distributed according to that will. For estates with no will, property will be distributed according to state law.
If the person’s estate consisted only of “non-probate” assets, such as life insurance, joint accounts with rights of survivorship, or retirement accounts with named beneficiaries, it may not be necessary to administer the estate. However, in most cases, some level of administration will be needed to collect assets, pay claims, and disburse (pay out) the remainder.
Formal Estate Administration
If the person died testate (with a will), the will normally names an executor whose responsibility it is to settle the estate. If the person died without a will (intestate), the North Carolina statutes specifies that the administrator will be qualified in the following order:
- The surviving spouse of the decedent;
- Anyone who is to receive property as indicated by the will of the decedent;
- Anyone who is entitled to receive property of the decedent by law
in the absence of a will;
- Any next of kin;
- Any creditor to whom the decedent became obligated prior to death;
- Any person of good character residing in the county who applies with the Clerk of Superior Court.
Both the executor and administrator are also referred to as a personal representative. The personal representative must file an application with the Clerk of Superior Court to begin the process of administering the estate.
One of the first tasks for the personal representative is to publish a notice to creditors. Publication of the notice to creditors establishes a deadline for which creditors have to submit claims to be paid by the estate. Claims must be filed by a specific date at least three months from the date of first publication of the notice. If the personal representative knows of creditors (or could discover with reasonable investigation), a notice must be personally delivered or mailed first class to them about how, when, and where to file claims against the estate. If the personal representative already knows of and recognizes a claim as valid, no notice needs to be delivered or mailed.
The personal representative must also determine if it will be necessary to file tax returns for the decedent or estate. Oftentimes, the overall timeline for settling the estate can be impacted by the need to file a return, so it is important to determine early whether or not a return will be required.
After paying the costs and expenses of administration, funeral expenses, taxes, and valid claims against the estate, the remaining assets are distributed either according to the will, or with the Intestate Succession Act (if there was no will).
Alternatives to Formal Estate Administration
Collection By Affidavit or Administration By Affidavit
If the value of a decedent’s personal property (less liens, encumbrances, and family allowances) does not exceed $20,000 ($30,000 if the spouse is the only heir or devisee) an heir, creditor, executor, or devisee may be able to administer by affidavit.
The affidavit is filed with the Clerk, and the affiant (person who makes an affidavit) obtains certified copies of the affidavit from the Clerk in order to transfer personal property owned by the decedent, such as bank accounts, vehicles, investments, etc.
Property must be distributed within 90 days of filing of the affidavit, and a final affidavit filed stating that property was collected and disbursed and distributed. Real estate can not be sold by an affiant. In addition, if the heirs or devisees plan to sell, lease, or mortgage real property within two years after the decedent’s death, this process should not be used due to uncertainty of the ability of creditors to void the transaction.
When a spouse is the sole heir or devisee of the decedent, the law provides a summary procedure for collecting and distributing the decedent’s property. If the clerk grants summary administration, the surviving spouse assumes all liabilities of the decedent to the extent of the value of the property received. Certified copies of the order granting summary administration can be used to transfer property owned by the decedent.
Contact our firm today if you have questions about estate administration in North Carolina or need guidance through the process of settling an estate.