March 25, 2017

What Is Probate Law: A Procedure That Doesn’t Have to be a Problem

Once someone close to us has died, in addition to the monumental process of managing the shock and grieving our loss, we soon have to turn to the business of handling this person’s final matters. This would include non-judicial tasks such as handling the funeral arrangements. But it also includes the legal procedure called probate also known in North Carolina as Estate Administration. The probate process begins immediately after death.

PROBATE: DEFINED

The word probate has Latin roots and means “to prove” and, appropriately, one of the tasks which must be performed as a part of the probate process is “proving the will.” However,
“probate” as a legal process is much more involved than merely “proving a will.”  For instance, probate takes place whether a person died with a will and/or a trust (they died “testate”) or without a will (they died “intestate”).  To succinctly sum up the practical meaning of probate, one could say that probate is the process of gathering information about a deceased person’s assets and creditors and handling them in strict accordance with the laws of North Carolina and US all while following the governance of the deceased person’s will/trust as supervised by the Clerk of Superior Court. 

PROBATE:  ESTATE ADMINISTRATOR
In the case of a testate probate, the Will nominates a person to be the personal representative called the Executor or Executrix. If the decedent died intestate, the personal representative is referred to as the administrator. In any case, this person assumes the responsibility and liability of making sure the estate administration meets all of the requirements and deadlines imposed by law and the courts.

PROBATE: CREDITORS

One of the most critical aspects of probate is the handling of the estate creditors and bills of the decedent.  Creditor management is the area of probate that requires the most discipline of the estate administrator and subjects him to the most legal exposure as it is heavily regulated by the North Carolina General Statutes, relevant case law, local rules, and the interpretation of the Clerk of Superior Court (who is the ex officio judge of probate) for your county.  Creditors are entitled to specified rights and actions from the probate administrator and these actions require rather quick deadlines once the probate estate has been opened.

The estate is responsible for paying certain creditors and bills owed by the decedent. However, great care must be utilized in following the requirements of the law in prioritizing, selecting, paying, and documenting the payments to these creditors and bills. Not all creditors are to be paid and not all are to be paid 100% of their outstanding balances. And before paying any of them, there are certain payments which must be made first to the children and to the surviving spouse for which the estate is responsible. Not following the law carefully could subject the administrator to personal liability and lawsuits.

PROBATE:  ESTATE ASSETS

The estate is composed of the assets owned by the decedent prior to death as well as any interest, residuals, dividend, profits, or rents on these assets to which the estate is entitled. The estate administrator must accurately report the value and existence of all of the estate assets in the Estate Inventory and account for every penny during audits conducted by the Clerk of Superior Court.

PROBATE: FINAL ACCOUNTING

At the conclusion of the probate process, the administrator creates a “final accounting” for the estate. This final accounting is a specialized, legal presentation for the federal, state, and county governments, certain creditors, beneficiaries, and heirs of the deceased (also referred to as the decedent). In North Carolina, it is controlled by the North Carolina General Statutes and the Clerk of Superior Court.

CONCLUSION

While often maligned as a headache, every probate is different. While probate has developed a harsh reputation over the years, this characterization generally applies for people who have not prepared ahead of time for their death, or for those Executors and Administrators who do not have qualified legal assistance. Depending on several factors, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time. It is always a good idea for the Executor or Administrator to retain qualified legal support before beginning this process. And the good news is that, with few exceptions, if an attorney is hired to help with the administration, the estate pays the cost for the attorney and not the Executor or Administrator! Engaging a qualified estate administration attorney with experience will enable you to take the best preventative steps to minimize tension, taxes, and legal trouble in the probate process.

FREE CONSULTATION

If you are the administrator of an estate, please complete the Probate Intake Questionnaire located above on the right hand side of this page and provide it to the Law Office of Cheryl R. Watkins for a free telephonic consultation with the attorney herself.

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