November 1, 2014

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.

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 to “prove the will.” Probate, the legal process of “proving up” a Will, or establishing the validity of a will before a judicial authority, takes place in one of two instances. First, if a person dies testate leaving behind a Will, or second, if the deceased has died intestate, that is, having not left behind a Will, Trust, or estate plan of any type or if no testamentary document can be found.

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 is designed to create a “final accounting” upon death. 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.

While often maligned as a headache, every probate is different. 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 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 selecting, paying, and documenting the payments to these creditors and bills. Not all 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.

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.

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