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.

1. both pass along specific assets,

2.  both name guardians,

3. both are written,signed and witnessed;

4.  both can be amended and revoked.

The differences between both are what sets them apart:

A Last Will and Testament, appoints an Executor who then takes the original Last Will and Testament to the Probate Court after the person dies. The assets are then collected and distributed according to the directions in the Last Will and Testament.  There are North Carolina Probate Court rules and regulations that need to be followed by the Executor once he or she has been appointed.  During the lifetime of the person who created the Last Will and Testament, the title of assets are not changed.  However, the names of beneficiaries may need to be changed to keep everything consistent with the Last Will and Testament.

A Revocable Living Trust appoints a Trustee and a Successor Trustee. This person manages the assets in the trust after death.  If done properly, a Revocable Living Trust will avoid probate. How?  Because the title of assets (not all) will be changed to the name of the Trust.  This is called Funding the Trust.  If the asset is not in the name of the person who died, then there is nothing to probate.  Ultimately, avoiding Probate.

I must caution you that there are certain assets that should not be titled into the name of the trust and there are beneficiary designations that must be changed in order for the Revocable Living Trust plan to work.  You should consult with an attorney, a financial planner and a CPA prior to making any changes – if you don’t you will run the risk of unwanted tax liabilities.

“What is the Difference Between a Last Will and Testament

and  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!

In a nutshell, probate is a legal process that takes place after someone dies. Here are some common issues that I have seen come up in probate administration:

-proving in court that a deceased person’s will is valid
-identifying and inventorying the deceased person’s property
-paying debts and taxes, and
-distributing the remaining property as the will or intestacy laws direct.

In general, probate administration involves filing paperwork and court appearances by lawyers. Lawyers and court fees may be paid from estate property.

So how does the North Carolina probate process work?

In North Carolina, probate usually proceeds as follows: Upon the death of a family member, the executor of the will, or, if the person dies without a will, the executor appointed by the court, files the requisite papers in the local probate court. The executor provides evidence of the validity of the will and outlines the nature and extent of the property, debts, and how the estate is to be distributed.

Part of the executor’s job is to find and manage the decedent’s assets during the probate process. Based on what the will says and the extent of any outstanding debts, the executor may have to make decisions about selling real estate or other property.

In some instances, immediate family members may ask the court to release support funds while the probate proceedings are under way. The court will grant the executor authority to pay debts and taxes and divide the rest among the people named in the will. Finally, the property will be transferred.

Avoiding Probate

Once someone in your family has died, you as the surviving family member (in an administration) or named executor (in a probate) have the obligation to see that the estate is handled in the appropriate legal manner. There really is no way to avoid a probate or administration.

Probate and administration procedures are set out in NC Statutes. There are always costs associated, time constraints to follow and statutory guidelines that need to be followed.

It can be difficult to navigate all of this with out the guidance of an attorney. Your best bet is to talk with a North Carolina probated and administration attorney. Find out what your options are, and if hiring a North Carolina probate lawyer makes sense for you.

The greatest fallacy most people have about estate planning is the belief that if they die intestate (or without a will) all of their property will go to their spouse.  In fact, it is this belief that keeps many people from creating an estate plan until after one spouse dies.  But this is not necessarily true.  What happens to your estate depends on many factors, including the state in which you live, whether you have children, your marital status and whether you’ve been married before, etc.  There is absolutely no one answer to the question “What happens if I die without a will?” Are you sure you want to take your chances with what might happen?

Another issue that most people just don’t understand is that probate is more often than not a very time consuming and expensive process.  There is a good likelihood that your loved ones will need access to your estate in the months following your death—unfortunately they are not likely to get it!  Probate court calendars, informing creditors, looking for other possible heirs, other family members contesting decisions—all of these and more can keep your estate tied up in probate for months or years, and unavailable to the people who need it most.

And perhaps the least understood drawback to refusing to create an estate plan in a down economy is that the probate courts may force your heirs to sell valuable assets at a time when property values are at their lowest. This alone could result in significant losses to the estate you pass on to your beneficiaries, not to mention probate fees and estate taxes that could have been saved had you planned ahead.

Estate planning may feel like an unnecessary expense, but the more you understand the more you realize just how essential it is.  Creating your estate plan now could be the best investment you make in your family’s future.

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.