What is Probate?
“Probate” refers to the formal legal process involved in administering an estate. In North Carolina, the clerk of court in the county where the deceased individual lived is responsible for managing the probate process.
When Does An Estate Go To Probate?
Probate is generally only necessary when the deceased owned property in his or her sole name. Families often consult estate planning attorneys to prevent their estates from passing through the probate process after death.
There are some assets, though, that do not go through the probate process. A few of these include:
- Jointly-owned property that includes a right of survivorship, like a joint bank account;
- Assets that name a beneficiary, such as life insurance proceeds or retirement accounts; and
- Assets contained within a revocable living trust.
What Is The Probate Process In North Carolina?
In North Carolina, the probate process starts in the clerk of court’s office. Either the executor of the deceased’s will or a person qualified to be an estate administrator will submit an application to the clerk of court to be named as a personal representative. This application should include the deceased’s will (if there is one) a general inventory of the estate property, and a certified copy of the death certificate.
Once the personal representative is authorized, he or she must send notices to the decedent’s creditors and file a complete estate inventory, including descriptions and values, to the clerk. The decedent’s assets are then compiled in an estate bank account and used to pay off debts, costs, and expenses, from funeral bills to taxes.
Finally, the personal representative will distribute any remaining assets to heirs and beneficiaries under the will or, if there was no will, under North Carolina’s intestacy scheme. The personal representative will then file a full accounting with the clerk’s office.
How Can I Avoid My Estate Going to Probate?
For a number of reasons, you may want to avoid the probate process. If so, you have options.
#1: Put your assets into a joint account with a right of survivorship.
Labeling a property “joint property with a right of survivorship” is a common way to avoid probate, as such property will most likely pass outside of your will (or intestacy) upon your death.
#2: Use a Payable on Death or Transfer on Death provision.
Generally, accounts with these provisions will pass to your family members without going through the probate process.
#3: Assign beneficiaries.
With some exceptions, life insurance and retirement accounts pass outside of the probate process if you have clearly designated beneficiaries.
Experienced Wilmington Estate Planning Attorneys
The North Carolina probate process can be complex, and while you may want to take steps to avoid it, it is important to know that there are pros and cons to each decision. Before making critical decisions about your estate, be sure to contact an experienced Wilmington estate planning attorney for guidance.
At Rountree Losee, our estate planning attorneys understand our clients’ desires to protect and preserve their family legacies. We are here to answer your estate planning questions. Contact us today for a consultation.