At the Law Offices of Sabrina Winters, we understand that the loss of a loved one is very traumatic. Our firm will handle all of the legal details, so that you can focus on what is important…family.
What is Probate?
Probate/Administration is the legal process that takes place through the courts when a person passes away. The court proceedings are very similar regardless of whether the decedent had a Will (Probate) or not (Administration). It is the outcome of that procedure that varies, sometimes drastically.
In a Will, the Decedent (the person who passed away) designates, for example, who he or she wants to receive his or her assets and or who will care for any minor children. In the alternative, when there is no Will, the person is said to have passed away Intestate and the ultimate distribution of the estate is governed by the North Carolina Intestacy Laws. These laws determine the direct line of heirs through blood relation and marriage. You could look at it as North Carolina’s version of your Will.
How is an Estate Probated?
The first step (for either Probate or Administration) is for the Personal Representative [this person is called the Executor if there is a Will or Administrator if there is no Will] to file a Petition requesting authority to act on behalf of the Estate. This petition, along with the original Will (if the decedent had a Will) is filed with the Probate Court. The Court then issues Letters Testamentary (if there is a Will) or Letters Administration (if there is no will) which are used by the Executor or Administrator as his or her authority to act on behalf of the Estate. A Notice to Creditors must then be published in a local newspaper for four consecutive weeks. The Creditors must file a claim within three months from the first date of notice.
The second phase of the process consists of ongoing filing deadlines, notifications and applicable settlements. The following is just a short list of tasks which must be completed:
- Identify all of the assets owned by the decedent at the time of death and file an inventory which values the estate’s assets, both real (ex: home) and personal (ex: bank accounts) as of the date of death;
- Pay any debts, claims, or taxes that are due and object to claims which should not be allowed;
- Settle all financial and property matters;
- Determine if the estate necessitates the filing of a tax return (seek the advice of a professional to make this determination);
- Close all existing accounts tied to the decedent and the estate;
- Make distributions to the heirs/beneficiaries and obtain receipts to confirm distribution was accepted;
As a Personal Representative you will need to recognize all applicable laws pertaining to the estate. For example, for probate purposes, only the assets held in the Decedent’s individual name are included in the Court’s inventory; although joint assets must be taken into consideration when determining the estate tax for the estate.
Can I probate the Estate without an Attorney?
It is possible to Probate an estate without the assistance of an attorney. However, it can be a complicated process that involves many court filing deadlines. The Clerks at the Probate department are not permitted to explain the laws to unrepresented Personal Representatives; they are limited to explaining the filing procedures.
The Personal Representative should understand that the title comes with great responsibilities and he or she can be held personally liable to the beneficiaries. The probate process is complex and could be lengthy. Some estates could take 9 to 12 months to settle. When you have lost a loved one, navigating through the system could be a daunting task without the guidance of an experienced attorney. Improperly settling the estate may cause future issues to the beneficiaries.
Probate Terminology
INTESTATE:
Passing away without a Will
TESTATE:
Passing away with a Will
WILL:
A document which directs the disposition of a person’s property after death
DECEDENT:
A person who has passed away
ESTATE:
A decedent’s total assets, both real and personal
EXECUTOR/ADMINISTRATOR:
The person appointed to carry out the distribution of assets. Also referred to as a Personal Representative.
LETTERS OF TESTAMENTARY/ ADMINISTRATION:
The Court document issued to a Personal Representative as authority to act for the Estate
HEIR:
A person who inherits through the laws of intestacy when there is no Will
