Probate & Estate Administration
King Law Offices also assists clients after a loved one passes away. Our attorneys can help executors or administrators of an estate in the probate or estate administration process after a family member’s death.
Upon the death of a loved one, great emotional sadness sets in as family and friends support each other during this time of loss. After finding a firm emotional foundation, it is time to address the task of administering the estate set up by the deceased.
Initial Steps when a Loved One Passes Away
When a loved one passes away, although it can be a painful and emotional time, it is important to remember that there are going to be some legal issues to resolve, even though it may be inconvenient. Regardless of whether your loved one died with a will, trust, or without a will or estate plan of any kind, the following are some good ideas to remember during this time.
1. Notify a funeral director and clergy, and make an appointment to discuss funeral arrangements. Request several copies of the
decedent’s death certificate. You will need the death certificate for his or her employer, life insurance companies, and attorney for
2. Notify the immediate family, close friends, business colleagues and employer.
3. Locate the decedent’s important papers. Gather as many of the decedent’s papers as possible.
4. Contact King Law Offices for a consultation or notify the attorney who will be handling the decedent’s affairs. Make an appointment immediately because some legal issues or tax issues may need addressing immediately.
5. Telephone decedent’s employee benefits office with the following information: name, Social Security number, date of death (or incapacity); whether the death (or incapacity) was due to accident or illness; and your name and address. The company can begin to process benefits immediately.
6. If decedent was eligible for Medicare, notify the local program office and provide requested information.
7. Notify life, accident or disability insurers of decedent’s death or disability. However, there are important legal reasons you should
decline any payment from the insurance company until meeting with an attorney.
8. Notify the decedent’s Social Security office of the death. Claims may be expedited if a surviving family member goes in person to the nearest office to investigate making a claim for survivor’s benefits. Look for the address under U.S. Government in the phone book.
9. If decedent was ever in the military service, notify the Veterans’ Administration. Surviving relatives may be eligible for death or disability benefits.
10. Do not change the title to any assets. This can create unnecessary problems for you. Please contact our office for a consultation before you start this process.
What is probate?
“Probate” is the public process of:
Filing and validating a will in court
Paying all the debts and taxes of the deceased person
Dividing up the assets according to the will or North Carolina law
If you have no debts and no “titled property” such as real estate or vehicles to pass along to heirs, there may be no need for probate.
The law relating to probate in North Carolina is governed by Chapters 28, 31 and 47 of the North Carolina General Statutes
Probate is also known as estate administration. It is essentially a court process after a person’s death that determines how the person’s probate assets will be distributed.
All assets are not subject to probate. A few assets such as those with a beneficiary designation, titled as joint tenants with rights of survivorship, along with a few other types, are not subject to probate. However, many other assets are subject to probate, depending on whether or not the decedent had an estate plan and how well it was drafted.
Distributable and Non-distributable Assets
Categorically assets that are not subject to probate include:
1. Assets held as joint tenants with right of survivorship,
2. assets held as tenants by the entirety between husband and wife,
3. life insurance proceeds and retirement plans and IRA proceeds, unless the estate is named as the beneficiary.
These above mentioned types of assets typically designate the beneficiary at the death of the owner and therefore probate is not necessary to determine the new owner or to make a transfer of the assets.
A will may be probated by filing a petition with the court. The Steps involved in a probate proceeding are:
1. Locate Will and Qualify Executor
The probate process begins with determining whether or not the decedent wrote a will, and locating it if one exists. If there is a will, the person named as the executor or personal representative in the will must qualify with the court in order to be officially named as executor. If there is no will, North Carolina law or Clerk of Superior Court determines who can qualify with the court as executor of the estate.
Generally, the decedent’s spouse or family members will most likely qualify as the executor or administrator. Upon qualification of the executor/administrator, the court, will issue “letters” to the executor/administrator which will be used by the executor/administrator during the estate’s administration to prove the executor’s/administrator’s authority to administer the estate.
If the decedent died with a will that names an executor or personal representative a non-resident of North Carolina, the decedent’s estate will be required to request the appointment of a resident process agent who will agree to notify the non-resident personal representative of all citations, notices and processes served on the process agent.
If there is no provision in the will waiving the requirement of a bond for the personal representative, a non-resident personal representative will be required to post a bond.
2. Conduct Estate Inventory
The executor shall file an inventory statement with the court that lists every asset owned by the decedent at death. The value of listed assets on the date of the decedent’s death of the inventory statement must also be provided by the executor. This document, as well as all other documents filed with the court, will be available to anyone who visits the courthouse and requests to see the probate file for the decedent. In other words, anyone can ascertain the value of the decedent’s probate estate and the names of the decedent’s beneficiaries.
3. Notify Creditors
Prior to any distribution from the estate (for bequests, debts, taxes, or other reasons), the executor must publish a legal notice in the newspaper for four consecutive weeks notifying all persons, firms, and corporations who may have any claim against the estate (“creditors”) to give the executor notice of those claims.
The executor must give these creditors at least three-months from the date of the first publication of the notice to present their claims and should not make any payments from the estate before that time. Further, the executor must mail notice of the estate administration to those creditors of the decedent and estate of whom the executor is actually aware.
4. Pay Creditors
Once all creditor claims have been submitted to the executor, the executor will pay all valid claims. If the estate does not have assets sufficient to pay all valid claims, the executor must prioritize claims for payment, and in that case, beneficiaries named in the will may not inherit anything.
5. Filing of Tax Returns
The executor will also file all relevant tax returns for the decedent’s estate and pay all taxes due. Those returns include the federal estate tax return, the state inheritance tax return, the federal and state gift and income tax returns, and the state intangibles tax return. King Law Offices generally advises all tax documents be filled out by a Certified Public Accountant.
6. Preparing Annual Accounts
If the probate process takes longer than one year, the executor must file an annual account with the court each year. The annual account will detail all of the receipts and expenditures of the estate during the year of the account.
7. Distribute to Beneficiaries
After the appropriate time periods have expired for payment of creditor claims and taxes, and after paying all valid debts and taxes of the estate, the executor is responsible for distributing any remaining estate assets to the beneficiaries of the estate.
If the decedent had written a valid will, the executor will distribute the assets to the persons named in the will. If the decedent had not written a valid will, the executor will distribute the assets to the persons designated by statute in the proportions designated in the statute.
8. Prepare Final Account
After the executor has completed all of his or her responsibilities, the executor will file a final account with the court in order to close the estate. The final account will detail all of the receipts and expenditures of the estate since the last annual account, or if the estate is closed within one year, during the entire probate process.
In North Carolina, probate fees are 40¢ per $100.00 of property subject to court costs of probate are limited by statute to $6,000. In addition to court costs, however, are costs of executor fees, attorney fees, and fees of other professionals involved in the estate administration. Although these other fees are not limited by statute, the probate court will review the fees to determine whether they are excessive.
At a minimum, an estate administration will take three months (to allow for all creditors to submit their claims). If estate and inheritance taxes are payable, the length of the administration process will significantly increase, usually to more than one year.
Probate of a Small Estate
A small estate is one in which the net value of the decedent’s probate assets does not exceed $10,000 or $20,000 if the surviving spouse is entitled to the entire estate. The probate on such estate may be obtained either by (1) administration by affidavit, or (2) summary administration
1. Administration by Affidavit
Administration by Affidavit is a somewhat simplified and less expensive alternative to normal probate and administration. For these purposes, net value is defined as gross value of the decedent’s personal property, less any liens or encumbrances against such personal property, general obligations and any year’s allowances paid to the surviving spouse.
2. Summary Administration
Summary Administration may be used where the entire probate estate passes to a surviving spouse. This procedure is commenced by filing of a Petition for Summary Administration and can often be completed in one day. However, there is one significant draw-back to use of this procedure: the surviving spouse agrees to assume all liabilities of the decedent.