- My relative (or friend) died recently. What happens to my loved one’s property and debts?
When someone dies, some or all of the deceased person’s property may transfer directly to others because of legal arrangements made by the deceased person before death. However, in many situations, a representative for the deceased person must be appointed by court to collect the deceased person’s assets, pay the deceased person’s valid debts, and distribute the deceased person’s property to the proper persons.
- What is a “decedent” and an “estate”?
A “decedent” is a person who has died. An “estate” is all of the money and other property owned by a person at death. Estates may be small or large and may or may not include land.
- What is a “will” or a “last will and testament”?
A “will” (also known as a “last will and testament”) is an instrument created during a person’s life that determines who inherits that person’s property after he or she dies. Wills are most commonly typed documents created by lawyers, but in some circumstances wills may be valid when handwritten (and in rare cases may be made through verbal directions). Some wills are not valid because they lack the legal requirements of a valid will. A will has no legal effect until it is probated by a court (usually the clerk of superior court).
- What is “probate”?
The term “probate” has two primary meanings. Probate is another word for estate administration, which is sometimes called “the probate process.” Probate or probating the will also refers to the process by which a court determines that a “purported” will is actually the final will and testament of the decedent and is legally valid to pass title to property.
- What is “estate administration”?
Estate administration is a process for handling a person’s assets and debts after that person’s death. Some estates are administered by “full administration.” Many small estates may be administered through simpler processes. Unless the decedent set up complete alternatives to court-supervised estate administration prior to death, estate administration is handled through the courts, primarily in the office of the appropriate clerk of superior court. In full administration, the clerk of superior court gives authority to a personal representative of the decedent who inventories the decedent’s assets, gives public notice to the decedent’s creditors, pays the valid debts of the decedent, and distributes the decedent’s remaining property to the person(s) who were named as beneficiaries in the decedent’s will, if there is one, or to the person(s) entitled by law if there is no will.
- What types of property pass through the estate administration process?
Assets including vehicles, bank accounts, stocks and bonds, furniture, and jewelry are typically, but not always, handled through the estate administration process. Assets that are handled through the estate administration process are called “probate assets.” “Non-probate assets” that may pass outside the process, may include:
- Property that is held with a “right of survivorship,” meaning that it becomes the property of the last owner living, or property that has a named beneficiary who is living. Such property may include life insurance policies, retirement accounts, joint bank accounts, and annuities.
- Land and houses generally are not administered through the probate estate unless the will provides otherwise or the sale of these assets is needed to pay estate debts.
- What is intestacy?
The law of intestacy provides the rules for distributing property belonging to people who die without a valid will. Most people who write a will leave their property to their immediate family, so intestacy law generally distributes property in the same way. When a person dies without a will, the property may be divided between the surviving spouse and children (or spouse and parents if there are no children) depending on the value and type of property. If the person has children, grandchildren, great-grandchildren, etc., but no spouse, the property is divided among the children or descendants of deceased children. If the decedent has none of these relatives, assets generally are distributed to family members in the following order of priority: 1) parents; 2) siblings and the children, grandchildren, etc., of deceased siblings; 3) grandparents; 4) aunts and uncles and, if deceased, their descendants.
- What is a “trust”?
A trust is a legal relationship by which one person or entity holds title to property for the benefit of another person or entity. In most trust relationships, the terms of the trust are set out in a written document called a trust instrument. Trusts are set up for many purposes. Except for testamentary trusts, most trust instruments are not filed with a court. Testamentary trusts are trusts written into wills. Testamentary trusts often provide for property management of a child’s inheritance until the child reaches a certain age and sometimes also provide for children or adults with disabilities who may lose government need-based benefits if they own property in excess of certain amounts.
- What are “executors”, “administrators”, “personal representatives”, and “trustees”?
Executors, administrators, personal representatives, and trustees are all titles of “fiduciaries”. A fiduciary is someone in a position of trust and authority to manage property for the benefit of another. “Executors” are the fiduciaries appointed under a will and given authority by the court. “Administrators” are the fiduciaries appointed by the court when a person dies without a will. “Personal Representative” is a term used to refer to both executors and administrators. “Trustees” are the fiduciaries appointed under a trust.
- What are “heirs”, “legatees”, “beneficiaries”, and “devisees”?
These are the legal terms for persons who receive property from a decedent’s estate or through a trust or through a contract that distributes a decedent’s property at death. Technically, the words mean different things based on the source of the property: “legatees” and “devisees” are people who receive property through a will; “heirs” are people who receive property when there is no will; and “beneficiaries” are people who receive property through a trust or an account or policy where a beneficiary can be specifically named.
- Does the law require a meeting for the reading of the will?
No. North Carolina law does not require a formal reading of the will.
- How may I get a copy of a will after my loved one has died?
After someone has died, the will may be filed with a clerk of court. A decedent’s will becomes a public record when it is filed, after the decedent’s death, with the clerk of court. Any person may view a public record or request a copy of a public record for a fee.
- Who makes the court decisions about estate administration?
The elected Clerk of Superior Court in each county acts as the probate judge in North Carolina. Elected clerks and their assistant clerks hold most estate hearings and presides over most estate cases. If the validity of a will is challenged in a caveat proceeding, the caveat proceeding will be heard by a Superior Court judge.
- How does a person begin the estate administration process?
Persons who wish to hire an attorney to assist with estate administration often do so at this point. Whether you are preparing to meet with your attorney or to administer the estate on your own, there are certain documents to gather and steps to take.
- Find the Will. Wills are often kept in safe places, such as safes, safe deposit boxes, or locked desk drawers. Wills are sometimes held by the decedent’s attorney. Prior to death, a decedent also may have deposited a will for “safe-keeping” with a clerk of court. Consider contacting the clerk of court in counties where the decedent formerly lived if no will has been found.
- Death Certificate. Formal proof of death is required at various steps in the probate process, and the standard proof is a certified death certificate.
- Locate and Identify Assets. To the extent possible, a person desiring to administer a decedent’s estate should take steps to locate and identify the decedent’s assets. Keep in mind, however, that a letter of authority from a clerk of court is often required to access information regarding a decedent’s assets.
- Contact the Clerk of Court. When you are ready to administer a decedent’s estate, contact the Clerk of Court in the appropriate North Carolina county.
- Where should the estate be administered?
The estate of a North Carolina resident may be administered in the county where he or she was domiciled at the time of death. If a decedent was not domiciled in North Carolina at the time of death, the estate may be administered in any North Carolina county in which the decedent left any property or assets or into which any property or assets belonging to the estate may have come. If a nonresident motorist died in any North Carolina county, the estate may be administered in any North Carolina county.
- What are “letters testamentary” or “letters of administration”?
Letters testamentary and letters of administration are legal documents issued by the clerk of court that give a person authority to serve as the personal representative of the estate. These “letters” will often be requested by institutions such as banks or insurance companies during estate administration. There are generally two basic types of letters, based on whether the estate is testate (with a will) or intestate (without a will). Testate letters are called “Letters Testamentary” and are granted to an Executor. Intestate letters are called “Letters of Administration” and are granted to an Administrator.
- How do I begin the estate administration process and apply for letters?
To formally begin the estate administration process, you will need to visit the clerk of court in the appropriate county. Some clerks of court allow walk-ins, while others require an appointment. You should bring: (1) the will if there was one, (2) a certified death certificate, (3) an application and preliminary inventory of the decedent’s property; and (4) a $120 filing fee. Forms needed may be obtained from the clerk of court’s office or on this website. Filling out the preliminary inventory and application for letters will require a general knowledge of the decedent’s property and the ability to identify the heirs or devisees of the decedent.
- Who may be granted letters testamentary or letters of administration?
Some persons by law are not qualified to serve as a personal representative of a decedent’s estate. In addition, the law gives some persons priority rights to serve as a personal representative. If there is a valid will, an executor named in the will has the highest priority to receive letters. If the executor does not qualify, then a substitute or successor executor named in the will has the next highest priority. If the will does not name a substitute or successor executor or if the decedent did not leave a valid will, then those who may be granted letters are, in the following order of priority: (1) the surviving spouse, (2) anyone receiving property under the will, (3) anyone who would receive property if there was no will, (4) any next of kin, (5) creditors of the decedent, (6) anyone of good character living in the county.
- What is a personal representative’s bond and how much is the bond?
Out-of-state executors generally must pay a bond to the court to protect creditors and heirs from potential losses. Administrators must pay a bond unless exceptions apply.
- I have been issued letters and opened the estate. Now what?
A summary of the procedures for executors, administrators, collectors by affidavit, and persons using summary administration is found here.
- If missing property is discovered after an estate is closed, can anything be done?
Yes. An estate may be reopened under certain circumstances, including the existence of newly discovered property.
Small or Simple Estates
- Do all estates need to go through the full estate administration process?
No. Smaller estates may be administered by use of an Affidavit for Collection of Personal Property of Decedent. The collection by affidavit process is summarized here. There is also a streamlined process for estates where the spouse will receive all the property, or where the estate only includes enough money to cover funeral and burial costs. There may be other small estate options available depending on the circumstances of each estate.
- What if I am the surviving spouse and sole heir or devisee?
You may able to use the collection by affidavit process. You may also pursue summary administration, which is a procedure that streamlines the estate administration process when the surviving spouse is the sole heir or devisee. This option is available whether or not the decedent had a will. You can find the necessary form for summary administration of estates with a will here and estates without a will here.