PROBATE IN NORTH CAROLINA A Closer Look at Probate in North Carolina – What Goes On in Probate Courts, How Probate Works, and What Place Probate Procedures Have in the Average Person’s Life
CHERYL K. DAVID North Carolina Estate Planning and Elder Law Attorney
Probate is one of those areas of the law that are shrouded in mystery to many people. It’s far too common for people to have some significant misconceptions about what goes on in probate courts, how probate works, and what place probate procedures have in the average person’s life. To demystify probate, let’s take a look at some basic concepts that surround this important area of the law.
THE LIVING AND THE DEAD The essential idea behind probate is that there are significant legal questions and property issues that must be dealt with after a person dies. Probate law, therefore, is simply the collection of legal procedures that apply to the issues left behind by deceased person. All states, including the state of North Carolina, have specific probate laws that apply in such situations, though these laws are generally similar from state to state., theresignificant differences.
OPENING THE ESTATE The probate process begins after a person dies. Soon after the death, someone will have to go to local county courthouse and begin a new probate case. In North Carolina, this is done by filing a petition with the office of the Clerk of the Superior Court. The clerk is a judicial officer that serves as the North Carolina version of a probate court judge.
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Once the petition is filed, the court will then begin a new probate case. The court will review the filed documentation and appoint person to administer the estate. (In probate cases, the term “estate” refers to all the property left behind by a deceased person.)
SETTLING THE ESTATE Once the court appoints an administrator, that person will have the legal responsibility to settle the estate. Settling the estate simply means finding new owners for all estate property and tying up any loose legal ends associated with it. It’s important to point out that estate administrators can be chosen by the person whose state they represent. For example, if you create a last will and testament in North Carolina, you can choose the person who you want to serve as administrator. When chosen through will, the administrator is known as an executor. Otherwise, if the deceased person leaves behind no last will and testament, it falls to the superior court clerk’s office to appoint an estate administrator. In either situation, the administrator does not have the legal authority to represent the estate until the clerk’s office approves the nomination or appointment.
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So, with an administrator in place, it now falls to that administrator to begin managing the estate. This task involves several different possibilities. One of the most important of these responsibilities is the task of creating an estate inventory. The inventory represents all of the property the deceased person left behind. It also includes all of that person’s debts or legal obligations. It is the administrators that have to complete this inventory and submitted to the probate court. Probate can last months, or possibly even years. During that time, it falls to the estate administrator to manage the estate and to make sure estate property is properly cared for. Administrators will also have to file notifications in the local paper of record to give potential estate creditors notice that the deceased has died. This allows creditors to file claims for any debts owed to them by the decedent. It falls to the executor to inspect these claims and to repay them in a specific order as determined by state law. It also falls to the administrator to determine who inherits property. Once the creditors are all paid, the remaining property will have to be distributed to the deceased person’s legal heirs. If the deceased left behind a last will and testament, the will states who stands to inherit. If no will exists, it falls
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to the administrator to determine who stands to inherit property in accordance with North Carolina’s intestacy laws.
PAYING FOR PROBATE A common question that many people have about probate is the issue of payment. Probate takes time and money. A person appointed as an executor will naturally wonder where all this money comes from. That answer lies with the estate itself. Just like other creditors, the estate will owe money to the executor for his or her expenses and work involved in administering the estate. People appointed as executor do not have to spend their own money as they go through probate. Additionally, administrators receive payments for the value of the services they provided to the estate, unless the decedent’s last will and testament specifies otherwise.
LIVING PROBATE Apart from overseeing the estate settlement process, probate law in North Carolina also covers situations where someone who is still living needs
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another person to step in to make decisions. These types of cases typically involve a person who has become incapacitated because they have become severely injured or are suffering from a medical condition that robs them of their ability to make choices. Such cases are often known as “living probate” because they do not involve a deceased person. For example, if you have a grandparent who suffering from Alzheimer’s disease, that grandparent might need someone to step in to make decisions because he or she is no longer able to do so. In such a situation, you might have to file a petition with the Clerk of the Superior Court in which you ask the court to name you as guardian over the incapacitated grandparent. As Guardian, you would be entitled to make decisions about your grandparent’s financial or day-to-day affairs.
PROBATE HELP Needless to say, the principles discussed here can be very complicated. No single summary of probate law can ever be a substitute for the advice you receive from an experienced probate attorney. If you have any questions about the probate process, need assistance in the administration of an estate, or simply want to know more about probate, you should reach out to a local probate lawyer as soon as possible.
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ABOUT THE AUTHOR
Cheryl David is a graduate of UNC-Chapel Hill, the University of Baltimore School of Law, and the prestigious Trial Lawyer’s College presided over by Gerry Spence. A former Administrative Judge, Cheryl is certified as an Estate Planning Law Specialist by the ABA accredited Estate Law Specialists Board, Inc. She is also a member of the American Academy of Estate Planning Attorneys, Medicaid Practice Systems and the National Academy of Elder Law Attorneys. In 2008, Cheryl received the honor of becoming a Fellow with the American Academy of Estate Planning Attorneys. The Fellow program recognizes Academy Members who demonstrate advanced expertise and significant practical experience in the total estate planning, trust, tax planning, guardianship, probate and estate administration fields. In order to maintain this advanced expertise, Cheryl takes over 36 hours of continuing education in Estate Planning, Elder Law, and Taxation each year. Also a Financial Planner, she holds the Series 7 and 66 Investment Licenses in addition to both Insurance and Long Term Care/Medicare designations. Her professional capabilities, together with over 25 years in practice, have combined to bring positive change to the lives of over 4500 clients and their families. 528 College Road Greensboro, NC 27410 Phone: (336) 547-9999 Fax: (336) 547-9477 WWW.CHERYLDAVID.COM
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