FREQUENTLY ASKED QUESTIONS

• Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:
• Creditors must be notified and legal notices published. Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account.
• A petition to appoint a personal representativemay need to be filed and letters of administration (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the 'Administrator' is entitled to handle the assets.
• Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, any jointly-owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
• There are time factors involved in filing and objecting to claims against the estate.
• There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
• Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will, or merely to pay debts.
• Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
• Costs of the administration including ordinary taxation such as income tax on interest and property taxation are deducted from assets in the estate before distribution by the executors of the will.
• Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
• The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.
• Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for by the executor/administrator or a probate lawyer filing on their behalf.

The probate process for a regular estate in North Carolina typically takes six to 12 months. However, this timeline can vary depending on the complexity of the estate. For example, if there are many properties, no will, or numerous heirs, the process may take longer, up to 18 months or more.

The probate process begins at the Clerk of Superior Court in the deceased's county of residence. An application is submitted to the clerk by either the executor/executrix named in a will or, if there is no will or the person named in the will is not able or willing to serve, a person qualified to be an administrator.

Court fees include the filing fees to create the estate ($120) and the probate fee that is taxed against the personal property assets of the estate (0.4% of the value of the personal property assets in the estate, with a minimum fee of $15 and a maximum fee of $6,000).

Technically the term “Probate” means “to prove the Will,”—meaning that the Court accepts and approves the Will as meeting the basic legal requirements. Following the “Probate” of the Will comes Estate Administration—the actual handling of the Estate and claims against the Estate.

Unless the decedent set up complete alternatives to court-supervised estate administration prior to death, estate administration is handled through the courts, primarily in the office of the appropriate clerk of superior court.

There is no legal requirement that anyone involved in the probate process hire an attorney; however, there are numerous reasons why it is usually a wise decision. If you are the Executor/PR you have numerous duties and responsibilities that often require financial and/or legal knowledge that you may not have. Mistakes made during the probate process can cost the beneficiaries/heirs of the estate a great deal of time and money which is why most Executors/PRs retain the services of an experienced estate planning attorney to help. If you are a beneficiary or heir of the estate the need for an attorney will depend on additional factors. For example, if you are planning to challenge the Will submitted to court by filing a Will contest you should definitely have an attorney on your side. If you are not challenging the Will, and nothing seems amiss with the estate, you may not need to hire an attorney but may choose to do so anyway just for peace of mind.

In North Carolina, estate executors have 30 days from the time of death to open an estate with the Clerk of Superior Court office.

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Although probate is not always required in North Carolina, an estate generally does need to go through probate if the decedent only owns property solely in their own name.

If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death. In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.