If you are here to learn about North Carolina probate after the passing of a loved one, I first want to say that I am very sorry for your loss. I 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 Wake County is also necessary to:
Prove the validity of the will
Appoint someone to manage the estate (The “personal representative” named in a will, or appointed by the court if there is no will)
Inventory and appraise the estate property
Pay any debts or taxes
Distribute the property as direct by the will—or by state law if there is no will
In North Carolina, if someone has more than $20,000 in assets ($30,000 if married), exclusive of their real property valued over $50,000, they will probably have to have their assets probated.
What’s so bad about probate in North Carolina...and what should I do next?
Many people have heard that probate is bad news in general, but not so bad in North Carolina. But even an "easy probate" can be expensive, time-consuming, frustrating, emotionally difficult after the death of a loved one, a source of family conflict, and 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/Personal Representative starts the process by filing the original will with the court and filing a Petition 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 Petition.
How is the Personal Representative Chosen?
If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, or if there is no Will, then any interested family member or person can petition the Court to be the administrator/personal representative of the Estate.
How does the Personal Representative Get Paid?
North Carolina law provides that the Personal Representative gets paid up to 5% of the probate estate, subject to court approval.
Could I Be Held Personally Liable For Making a Mistake as a Personal Representative?
Being a Personal Representative is a big responsibility. North Carolina’s probate code contains rules and procedures that a Personal Representative must follow during the probate. Also, there are certain deadlines that a Personal Representative must meet in filing papers with the Court. If a Personal Representative violates any of these rules, they can 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.
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 find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust. That is why it is so very important that you plan effectively and have regular reviews of your plan and assets so the planning you do now works as planned later.
It’s why I follow up with my clients regularly during the funding stage and will review your plan at least once every three years. It's vital to keep your plan current!
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 "Tenants in the Entirety" or "Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” 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. And in North Carolina, we have special rules regarding real estate and cars, which pass directly to heirs at the time of death, so even if someone's "heirs" need to be determined in a proceeding, estate assets cannot be used to pay for those assets in the meantime. Call me 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 how a person’s estate will be distributed. The exact specifics largely depends on whether there are children or other living decendents, living parents or a spouse. It's not automatic that a spouse gets everything!
How long does Probate take?
The length of time of a probate will depend on several factors. It usually takes a minimum of 6-12 months and can take longer for complex cases.
How much does Probate Cost?
Probate estate fees are $0.40 per $100 of estate assets, capped in North Carolina at $6,000. Probate legal fees vary, but expect to pay 3-10% of the gross estate in legal fees, should you hire an attorney to assist you through the process. The Personal Representative is also entitled to a fee for their services, usually up to 5%. Fees require court approval. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees.
If you’re ready to get started with the probate process after the passing of a loved one, please schedule a complimentary 15-minute consultation to help determine your next best steps.
I am 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.