In North Carolina, the Clerk of Superior Court serves as the Probate Judge and cannot practice law.  Therefore, the Clerk’s office is not allowed to provide legal advice.  As an Executor, don’t expect the Clerk or the Clerk’s staff to prepare accounts or complete Probate forms, or offer assistance in these matters.  The clerk can provide basic information about the Probate process.  They can talk about the types of estates and requirements, and the various forms that are involved.  The clerk can also provide a “cheat sheet” for filling out an inventory or accounting, but they cannot directly assist in completing the forms.  The staff will typically refer you to speak with an estate attorney for legal assistance.

The clerk cannot offer an opinion as to whether an attorney is required, and they also cannot provide the name of a specific attorney.  However, at the front desk area (at least in the Mecklenburg County Estate Department), there is a binder which lists several probate attorneys in the area.  This binder is available to the general public in the Estates area.  I am not certain if every county has this, but it is worthwhile to ask.

Bring a Book!

There are 100 counties in North Carolina, each with its’ own Probate Department.   The county in which the decedent died is the county that would have jurisdiction over the matter. It may be identified as an Estates Department in one county and a Probate Court in another, and each is a division of the Clerk of Court.  Smaller counties will generally have a smaller staff but less of a wait time for services.  Larger Counties, such as Mecklenburg, may have extremely long wait times, even though the staff is larger. Mecklenburg County for example almost never takes appointments, but I have heard Gaston County may require appointments.  Ultimately, when visiting the Clerk’s Office, expect to meet some very dedicated and professional people, but also bring a book and prepare for a potential wait!

Keep your checkbook at home!

There will be various Court costs associated with a Probate or Administration regardless of what county the matter is in.   Opening an estate, closing an estate, even making copies, are all assigned a specific fee based on specific requirements.  Payment must generally be made at the time of service, and personal checks are not allowed.  Many people are surprised to learn that debit cards and credit cards are also not accepted.  Cash, estate checks, and checks from an attorney’s office are valid forms of payment.  Fees can also grow and become quite large, depending on the size of the estate.

Bottom line…

The requirements are standard between counties, however each Clerk’s office may have implemented slightly different requirements pertaining to certain procedures.  Of course if you are handling a Probate matter on your own, the information contained in this blog should not be considered legal advice.  Contact our Firm at (704) 843-1446 and we will be happy to assist, or refer you to a local attorney in your area to make certain that the matter is handled properly according to your specific situation.

I am not certain through whose eyes they determined this. I look around and still see far too many families struggling to recover to consider it over.   And while I acknowledge things may be improving on some level, I still find it hard to objectively look at a parent who cannot find work or lost a huge chunk of a 401(k) plan to say our Country is officially in the clear.

The number of bankruptcies taking place right now equally saddens me.  For many families, bankruptcy may be the only way to break free from the mountain of debt that constantly rests on their shoulders.  Of course that’s not to say this decision is ever taken lightly by those who file, as the consequences of bankruptcy are long-lasting and sometimes severe—especially if you stand to inherit money.

Example: a family member passes away who left you a cash gift in a will or trust.  On the surface it seems like this would be a much needed and timely relief for a family going through bankruptcy.  However, Federal bankruptcy rules declare that if you inherit money from a person who dies within 180 days of the date you filed for bankruptcy, you must tell the courts.   In simple terms, that means the inheritance now becomes a part of your bankruptcy estate and will be distributed to your creditors as the courts see fit.

This also applies to items that you may inherit such as cars, jewelry or furniture.  All of these items are subject to the administration of the bankruptcy estate.  However, this doesn’t mean that items like this are certain to go up on the auction block.  You can claim exclusion on certain things and the bankruptcy trustee has a certain amount of discretion in choosing what to liquidate. However, it can be extremely stressful to think about a family heirloom that has been in your family for years going to auction.

Hopefully your loved one had a Charlotte wills and estates attorney who knew a thing or two about protecting their inheritance from things like bankruptcy, creditors, divorce and the like. Ideally, your loved one would have been advised to set up a trust so any inheritance passed down to their family members would be out of reach from creditors and the courts.  If they did not, and you have not filed bankruptcy yet, this may still be an option if your loved one is willing to have their plan looked at by a qualified Charlotte wills and estates attorney.

Planning to avoid giving your hard-earned wealth to creditors is not illegal or immoral either.  You should think of it the same way you would when considering tax planning.  Tax planning is legal, but tax evasion is not.  The difference is whether you play by the rules and are honest.  For example, not telling the courts you received an inheritance is illegal and you could face serious consequences.  However, you are not skirting the rules if you are the recipient of a spendthrift trust; that was not your choice.

If you or your loved one needs help facilitating such a trust to protect your inheritance from the claims of creditors, simply call our Charlotte wills and estates office at (704) 843-1446 to schedule a “Peace of Mind Planning Session” at no charge ($750 value).  We will walk you through the necessary steps that must be taken to protect your inheritance from a bankruptcy filing or any other creditor’s claim. However, these appointments are limited to 5 per month so call today!

1. Where are the assets located?  All with one institution or several?

2.  How much time does the appointed Executor or Administrator have to dedicated to collecting the assets?  His or her time may be limited due to his or her own personal responsibilities.

3.  Do we need to locate beneficiaries or heirs?

4.  How quickly does the financial institution provide the information requested?

5.  What is the size of the estate?

6.  The requirements pertaining to filing deadlines, notice requirements, etc. of the Probate Court are always factors to consider as well.

If your goal is to avoiding Probate, have a  smoother and quicker transition of assets then an alternate planning option for you to consider is a  Revocable Living Trust.

If a husband and wife own a house together in North Carolina, they are said to own it as tenants by the entireties.  This means, that at the death of the first spouse (we will say for example purposes that it is the husband that dies first) she owns the home automatically.  The wife is said to have rights of survivorship.  If the wife continues to leave the home in her name alone, at her death, the house will have to be probated and will pass by way of a Last Will and Testament, (if she has no Last Will and Testament it will pass by intestacy laws and North Carolina gets to decide who receives that property.)

If, on the other other hand, the home was placed into a Revocable Living Trust, we look to the Trust to tell us who receives the home when the wife passes away. There is no need to have a probate because the home was not owned by an individual but owned by the Revocable Living Trust.

Below is a list of the 10 most popular questions I have received from clients.

1. How do you qualify as an Executor?

2. Can you decline your right to qualify as an Executor if you were appointed?

3. Who cannot qualify even if you have been appointed as an Executor?

4. What happens if the named Executor dies or if the appointed Executor dies?

5. What is the time frame to apply to become appointed as the Executor?

6. Where does a potential executor apply for the appointment? What County? What office?

7. What does the potential executor have to include in the initial Application to the Clerk?

8. What are the filing fees to obtain the appointment?

9. Does the Executor have to notify the potential beneficiaries or does the Clerk?

10. How long is the Executor’s appointed for?

It is always best to consult with an attorney whether you are ready to create your Estate Plan or if you have been appointed. It is pointless to appoint someone that may not be permitted to act or may not want to act for various reasons. It is better to be aware of it now so that there are little to no appointment issues later.

1. Complete all documentation necessary to become the personal representative (Petition for Letters and Oath at a minimum)

2. Gather information on the decedent and the decedent’s probate assets (this is required for the Petition)

3. Make an appointment with the probate clerk (not always necessary)

4. Meet with the probate clerk (again, not always necessary)

5. Inventory Safe Deposit boxes (You may need a Court Order to open this if you are trying to do it before the Letters are issued by the Clerk)

6. Gather and protect estate property

7. retain experts (CPA’s, Attorneys, Financial Planners, for example)

8. determine value of non-probate assets (probably won’t get far with this until you have the Letters issued from the Clerk)

9. investigate potential wrongful death claims (you will have to disclose whether there is a wrongful death claim)

10. obtain tax identification number (you will need this before you open an Estate Account)

11. open estate bank account (using the tax identification number as the “social security number” so to speak of the Estate Account)

12. pay the year’s allowance (if the surviving spouse requires it)

13. activate or terminate government benefits

14. obtain prior tax returns

15. obtain death certificates (the funeral home usually orders these for the family when they burial arrangements are made. I would order at least 10)

16. publish notice to creditors (cannot do this until the Letters have been issued by the Clerk)

17. identify legal obligations of the decedent (creditors, etc.)

18. start going through decedent’s personal effects to determine where assets may be held and or any liabilities he or she has outstanding

19. keep very detailed records on any checks deposited into the Estate Account as well as any checks written from the account

20. Call an attorney if you get too overwhelmed with the process!

1.  The original Last Will and Testament;

2.  All the full names, mailing addresses and ages of each Beneficiary named in the Last Will and Testament;

3.  Application for Letters Testamentary;

4. Oath of Office;

5. Bond (if required);

6. Appointment of Resident Process Agent (if the Executor resides outside of North Carolina);

7. Filing fee of $61.00 and

8. Notice to Beneficiaries

Once the initial documents are filed and approved by the Clerk of Court, he or she will issue Letters Testamentary.  Letters Testamentary is the legal authority for the named Executor to investigate the location of assets and to collect the assets.  The Executor is not required to supply exact information regarding the assets on your initial Application for Letters Testamentary.  The Court will require that information 90 days later when the Executor files the 90 Day Inventory.