Are you navigating the probate process in North Carolina after losing a loved one? Maybe you’re wondering what you need to do to prepare your estate, so the process goes smoothly in the future for your family members. Going through the motions of settling an estate is often stressful, not only because it can get complicated but also because grief is involved. Probate court proceedings can also be long and costly, so many people wonder whether the process will be necessary for their particular estate. An experienced Cary probate attorney can help you through the NC estate probate process to ensure you and your loved ones get some much-needed peace and security.
Probate refers to the court-supervised legal process of settling an estate when a person dies. It’s essentially an estate administration process in which the Superior Court reviews the assets and debts of the deceased person (the “decedent”), along with any wills and heirs. Once reviewed, the remaining assets in the decedent’s estate can be distributed to its beneficiaries. The probate judge or court appoints a personal representative – often called the “executor” – to handle all the steps required to settle the estate. This person is often the decedent’s surviving spouse, a family member, or a trusted individual named in the will. Since probate requires the involvement of the North Carolina courts, it’s a public process and requires a certain amount of legal fees. It can take several months to finalize probate, so people often look for ways their family members can avoid the ordeal.
Smaller estates with probate-qualified assets valued at less than $20,000 can avoid the formal probate proceeding. If the surviving spouse inherits the whole estate, however, the estate’s value can’t exceed $30,000 if probate is to be avoided.
In these situations, small estates can go through one of three expedited probate processes:
Which of these three expedited forms of probate is used depends on who has survived the decedent and the estate’s value.
If the estate you’re thinking of may be valued at more than $20,000-$30,000, you don’t need to worry quite yet. According to North Carolina law, some assets are exempt from probate, and those assets will not be counted in the value of the estate. This means that if these particular assets bring the estate’s value below the threshold for mandatory probate, you may be able to use one of the expedited processes listed above.
Any property that is owned in “joint tenancy” is a property that is owned by two parties completely – that is, each party owns 100% of the property. This is a common setup for real estate owned by married couples – like the family home. When one spouse dies, the other spouse automatically inherits 100% of the asset through the “right of survivorship,” and the property doesn’t have to go through probate.
Similarly to joint tenancy assets, any “tenancy in common” assets will also avoid probate – at least partially. These types of assets are also co-owned by two parties, but the parties share an interest in the property. If one of the property owners passes away, their portion of the asset will go through probate and be passed on to their estate’s beneficiaries. In contrast, the surviving owner’s portion remains under their control.
Some of the deceased person’s assets may have beneficiaries outside of those named in the decedent’s will.
Some examples of these types of assets include:
These assets will be transferred to the named beneficiaries without going through probate.
There are several different types of living trusts available in estate planning – namely, revocable trusts and irrevocable trusts. Probably the most efficient method for shielding assets from probate, living trusts allow the asset’s ownership to be transferred completely to the trust. Since the asset is no longer under the deceased person’s ownership, when they die, it does not have to pass through the North Carolina probate process.
While there is no legal deadline for filing probate after the death of a loved one, beneficiaries often cannot inherit any assets or personal property until the probate process has been finalized. Since probate is not automatically triggered after someone’s death in North Carolina, the general recommendation is that the process is opened by a probate estate representative within 60 days after death. After filing for probate, the personal representative must notify any creditors of the estate that probate has opened and allow them to make claims against the estate – typically 90 days from the first notification published.
The probate process in North Carolina can easily become complicated and time-consuming. Particularly in cases where significant assets or multiple beneficiaries and creditors are involved, the average personal representative will find the help of a North Carolina estate planning attorney beneficial. Let the experienced estate planning lawyers at Cary Estate Planning help you through this complex and stressful process so you can focus on grieving, healing, and moving forward.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.