Understanding the Probate Process

Understanding the Probate Process | Estate Planning in Cary

When a person dies, his assets are distributed to his creditors and beneficiaries.  The court supervises this probate process in order to ensure that the bills of the deceased person, also known as the decedent, are paid and that the remainder of his assets go to his heirs. The laws of probate are governed by the state in which the person lived when he died.
There are several instances in which an estate will need to be probated, including the following:

  • If the decedent owns or co-owns property or assets, during probate the descendant's name will be removed from the title and put into the name of the heir, unless the decedent’s share is named to go to the joint owner.
  • If no one is named as a beneficiary of a specific account, such as a 401(k) or life insurance policy, it will need to be probated so it can be put into the names of the heirs.
  • If the decedent didn’t have a will, his assets will be named to the heirs at law, which are determined by the state in which the deceased lived.
  • If the decedent did have a will, the assets will be probated to ensure they go to the proper heirs.

Each state has its own guidelines for the probate process, including what documents are required, what they should contain and when they have to be filed.  While you should always consult with a professional if you have questions, here is an outline of the probate process in North Carolina. It is considered informal and straight-forward because there are documents available that an executor just fills out and turns in.
As the executor, or personal representative, you’ll need to apply to the clerk of court where the decedent lived and include a list of his assets and estimated value at the time of his death. Once you’re appointed, you may have to post a bond, but generally if there are no heirs under 18 years of age, it’s not necessary.
The first step is publishing a public notice in the local newspaper alerting creditors that they should come forward with any claims within three months. The ad should run once a week for four weeks. Creditors will need to be contacted with information on how and when they can file claims against the estate.
Next you’ll need to collect the decedent’s assets and have them appraised. Then pay debts and taxes with their assets, selling them if you need to in order to cover his debts or taxes. If there isn’t enough to cover them, state law says that they can be paid in priority: liens, funeral and burial costs, taxes and then other expenses.
Once all debts are paid, the remainder can be distributed among the heirs according to the directions in the will. The final step is closing the estate, which must be filed with the court. An accounting statement showing all the transactions of the estate including proof such as cancelled checks and bank statements must be submitted to ensure the estate was properly probated and all actions were completed.

Estate Planning in Cary NC | Eldreth Law Firm, PC

Were you appointed executor of an estate and have questions about the probate process in North Carolina? Call Eldreth and Eldreth to get the answers you need. Let us help you properly administer an estate. We can also help with other legal matters such as estate planning in Cary NC, divorce, child custody, copyrighting, trademarking and DWI issues.

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