What to Do When Someone Dies and Leaves a Will in North Carolina

The days and weeks after losing a loved one are challenging. You’re grieving, you’re trying to make sense of what’s happened, and now you have the added stress of figuring out what to do with their will and estate.

As estate attorneys, we field questions every day from surviving family members who don’t know where to start but know they need help. If that sounds like you, here’s what you need to know.

What Does an Executor Do When Someone Dies?

An executor is the person named in a will who is responsible for settling the deceased’s estate. If you’ve been named as an executor, it’s a significant responsibility that requires careful attention and diligence.

As an executor, your primary duties are:

Locating and validating the will

The first step is to locate the most recent, valid version of the will. In North Carolina, a valid will must be in writing, signed by the testator (the person making the will), and witnessed by two competent individuals. Once you have the will, you’ll need to file it with the Clerk of Superior Court in the county where the deceased lived.

Notifying beneficiaries and interested parties

You’re required to inform the beneficiaries named in the will of the person’s death. You’ll also need to notify any creditors, banks, or other parties with an interest in the estate.

Inventory and appraisal of assets

To settle the estate, you must create a complete inventory of the deceased’s assets and debts. This includes real estate, personal property, bank accounts, investments, and any other assets. Some assets, like real estate or valuable collectibles, may need to be appraised to determine their current market value.

Paying debts and taxes

Before any assets can be distributed to beneficiaries, you must settle any outstanding debts and taxes from the estate. This includes any medical bills, credit card balances, mortgages, and personal loans. You’ll also need to file the deceased’s final income tax return and, if necessary, a federal estate tax return.

Distributing assets to beneficiaries

After all debts and taxes have been paid, you’ll distribute the remaining assets to the beneficiaries according to the terms of the will. This involves preparing any necessary legal documents to transfer ownership of real estate, vehicles, or other assets.

How the Probate Process Works in North Carolina

Probate is the legal process of validating a will and settling an estate under the supervision of the court. In North Carolina, the probate process is handled by the Clerk of Superior Court in the county where the deceased lived.

Types of Probate in North Carolina

There are four types of probate in North Carolina:

1. Formal administration: This is the most common form of probate and is required for estates that exceed $20,000 in personal property or contain any real estate. In formal administration, the executor must be officially appointed by the court and follow a strict legal process for settling the estate.
2. Summary administration: This is a simplified probate process for estates in which the surviving spouse is the sole beneficiary of the estate.
3. Collection by affidavit: If the estate is small (less than $20,000 in personal property), the assets may be collected by affidavit without going through probate.
4. The petition for year’s allowance – This allows a surviving spouse or minor children to claim up to $60,000 of personal property from the deceased spouse’s estate, helping to transfer assets like car titles or bank accounts to the survivor’s name.

Timeline and Steps Involved in the Probate Process

The formal probate process in North Carolina mimics the steps we outlined in the executor’s responsibilities:

1. Filing the will with the court
2. Appointment of the executor
3. Inventory and appraisal of asset
4. Payment of debts and taxes
5. Distribution of remaining assets to beneficiaries

The entire probate process can take several months to a year or more, depending on the complexity of the estate. The actual steps will also depend on the type of probate needed.

When Probate Gets Complicated

Some estates are more complex than others and may involve issues that require special attention, like:

• Contested wills and disputes among beneficiaries: If someone challenges the validity of the will or beneficiaries disagree about the distribution of assets, the probate process can become contentious. In these situations, it’s crucial to have an experienced probate attorney to navigate the legal complexities and represent your interests in court.
• Estate tax considerations: While North Carolina no longer has a state estate tax, estates may still be subject to federal estate tax if they exceed a certain value. An attorney can help you understand the tax implications and develop strategies to minimize the tax burden.
• Insolvent estates: If the deceased’s debts exceed the value of their assets, the estate is considered insolvent. In this case, the executor must follow a specific legal order of priority for paying debts, and some beneficiaries may not receive the full amount designated in the will.

In these situations, it’s essential to have a skilled attorney by your side. At Cary Estate Planning, our probate attorneys have a deep understanding of North Carolina’s estate laws and can walk you through even the most challenging probate issues.

Why it Pays to Have a Well-Drafted Will

A well-drafted will is the cornerstone of a solid estate plan. It ensures that your wishes are carried out after your death and can minimize confusion and conflict among your beneficiaries.

A clear, legally valid will can also expedite the probate process and protect your legacy for future generations.

At Cary Estate Planning, our experienced attorneys understand that every family’s situation is different. We take the time to understand your specific needs and goals, and we craft personalized estate plans that reflect your values and wishes.

Whether you need to create a new will or update an existing one, we’re here to guide you through the process and ensure that your will is comprehensive and legally sound.

When to Consult a Probate Attorney

While it’s always wise to consult with an attorney for any legal matter, there are certain situations where seeking legal guidance is especially crucial:

1. You’re serving as an executor: If you’ve been named as an executor, an attorney can guide you through the probate process, help you understand your responsibilities, and ensure that you’re fulfilling your duties properly.
2. There are disputes: If there are disputes among beneficiaries, challenges to the will’s validity, or other conflicts, an attorney can represent your interests, negotiate on your behalf, and work to resolve issues as efficiently as possible.
3. There are complex assets or tax issues: If the estate includes a business, commercial real estate, or other complex assets, or if it’s large enough to be subject to estate tax, an attorney can provide invaluable guidance and help you navigate the legal and tax implications.

At Cary Estate Planning, we’re dedicated to providing compassionate, knowledgeable legal guidance to families dealing with the loss of a loved one.

Whether you need help creating a will, serving as an executor, or resolving an estate dispute, we can help. The death of a loved one is always difficult, but understanding what to do when someone dies and leaves a will can help ease the burden.

If you have any questions about wills, probate, or estate planning in North Carolina, we invite you to contact our office today.