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The probate process can be challenging and unpredictable, particularly if a large amount of money or property left behind. Grieving the loss and support of a loved one is hard enough as it is – you should not have to worry about handling court proceedings by yourself as well. A Rutherfordton probate lawyer can help you with all the paperwork and extensive legal duties necessary to settle your loved one’s estate. During a case evaluation, our probate lawyers will review any previous estate planning and determine your best path forward through the probate process.
It is helpful to have a basic understanding of how probate works so you know what to expect during the process. Probate is when your assets are transferred through the court to other parties after you pass away. If you leave a will, your estate will be divided according to your wishes. If not, the probate court will decide who receives the property.
Parties Involved in the Probate Process in Rutherfordton, North Carolina
The Estate Owner (Decedent)
In probate, if the decedent died with a will, they are said to have died “testate.” If they died without a will, the decedent is said to have died “intestate.”
Personal Representative
Typically, if there is a will in place, the testator will name a personal representative to oversee their estate and make sure it is divided as they wish. This personal representative is known as an executor.
If there is no will or no executor named, the court will appoint a personal representative to settle the estate. In this case, the personal representative is called an estate administrator. The court often selects the surviving spouse. But if there is no spouse or the spouse is unable to take responsibility, the court may choose someone else, such as:
- Anyone receiving property under the will
- Anyone who would receive property if there is no will
- Any next of kin
- Creditors
- Someone of good character living in the county
In any case, no personal representative can administer the estate until the court gives them a document providing them with legal authority to act on the estate’s behalf.
Clerks of the Court
In North Carolina, probate is handled in the appropriate county’s Superior Court. Clerks of Court, who are elected officials, preside over most probate proceedings unless the validity of a will is challenged. In that case, a Superior Court judge presides over the hearings.
Beneficiaries
Those who stand to inherit the decedent’s estate are known by different titles depending on the situation. If they are named in a will, the beneficiary is legally known as a “devisee.” If the court selects who inherits the assets, they are known as “heirs” under intestate succession laws. However, most people use these terms interchangeably.
Spouses, children, grandchildren, and parents are given priority in intestate succession laws. However, siblings, nieces, nephews, grandparents, aunts, uncles, and cousins may stand to inherit portions of the estate.
Our Law Firm Can Assist with Personal Representative Duties
Those who are unfamiliar with the probate system in North Carolina may find it difficult to navigate the intricacies of probate law and satisfy the requirements of being executor or administrator. The entire process can be overwhelming – after all, you are essentially sorting through someone else’s entire life and parceling out everything they worked for.
Fortunately, the probate lawyers at Farmer & Morris Law, PLLC can shoulder most of this weight. We can assist you through every step of the probate process, ensuring that you satisfy all legal requirements, meet all deadlines, and close the estate as seamlessly as possible. In addition to representing you in probate court disputes, our legal team can help you complete your duties as a personal representative. These include:
- Finding the will and filing it with Rutherford County Clerk of Superior Court (or the appropriate county court)
- Filing your application for executor
- Itemizing and appraising the assets
- Filling out necessary paperwork
- Locating family members and beneficiaries
- Communicating with creditors
- Selling assets, if necessary
- Handling communication with other parties
- Paying off the estate’s debts
- Keeping records and receipts
- Disbursing the property to rightful heirs
Timeframe for Probating an Estate in Rutherfordton
The time it takes to complete the probate process varies. Circumstances surrounding the estate will dictate how long it takes to get through probate. The process cannot start until the court is notified of a person’s death and a will is validated in court. If the executor does not file within 60 days of the death, someone else may submit the will and petition to be executor, per G.S. § 28A-2A-2.
During probate, the executor or administrator is charged with notifying parties who may have an interest in the decedent’s assets. These are people who would likely be named in a will if there was one.
Notice to Creditors
Within 75 days of being appointed by the court, the personal representative must also give creditors notice about the estate owner’s death and their right to make a claim on the estate once a week for four weeks. After that, the creditors have three months to make a claim for debts owed.
Considering these timeframes alone, you can expect probate to take no less than six months. It may take longer if the estate is large and complex or if probate litigation ensues over the will. Some probate cases last a year, while others last several years.
Shortening the Probate Process
It is possible to shorten the probate process or skip it altogether in some instances. For example, some assets do not go through probate, including:
- Assets held in a living trust
- Assets with a designated beneficiary (insurance policies, retirement accounts, payable-on-death accounts, etc.)
- Jointly owned assets that automatically transfer to the living owner under right of survivorship
- Real estate, which automatically goes to the decedent’s heirs under North Carolina law, unless there is a will the provides differently
The probate process can also be simplified if:
- The surviving spouse is the sole heir to the estate
- The estate is $20,000 or less ($30,000 if the surviving spouse is the heir) and you file an affidavit for collection
Costs of Probating an Estate
Just as the time it takes to probate an estate varies, so do the costs associated with estate administration. Filing fees, administrative costs, attorney fees, and the personal representative’s commission are a few of the general costs of probating. These expenses are generally paid from the estate.
To that end, the personal representative is also responsible for opening an estate bank account for funds from the estate to be deposited and expenses to be paid. Keeping estate finances separate from personal finances is paramount during probate, so there is no question of theft, fraud, or mismanagement.
A Personal Representative Can Be Held Financially Liable for Errors
While probate expenses will come from the estate, if the personal representative makes any errors in the process (such as prematurely settling a debt or disbursing assets to beneficiaries incorrectly), they can be held financially liable.
The fact that you can be personally liable for any errors in the probate process makes it even more important to have legal counsel. A probate attorney with experience in North Carolina law can meticulously guide you through the probate process to help you avoid costly mistakes and any personal civil litigation.
Call Farmer & Morris Law, PLLC for Help with the Probate Process
We understand that administering an estate is a complex, exhausting, and sometimes emotional process. If you need help, call Farmer & Morris Law, PLLC at (828) 286-3866. A Rutherfordton probate lawyer is ready to assist you today.
