Learn the importance of the probate procedure in North Carolina.
A probate may be obtained by the filing of a petition with the District Court in the County in which the decedant lived. The steps involved in a probate proceedings are:
1. Locate Will and Qualify Executor
The probate process begins with determining whether or not the decedent wrote a will, and if there is a will to locating the same. If there is a will, the person named as the executor or personal representative in the will must qualify with the court in order to be officially named as executor. If there is no will, a state statute determines who can qualify with the court as executor of the estate.
Generally, the decedent’s spouse or family members will most likely qualify as the administrator. Upon qualification of the executor/administrator, the court, will issue “letters” to the executor/administrator which will be used by the executor/administrator during the estate’s administration to prove the executor’s/administraor’s authority to administer the estate.
If the decedent died with a will that names an executor or personal representative a non-resident of North Carolina , the decedent’s estate will be required to request the appointment of a resident process agent who will agree to notify the non-resident personal representative of all citations, notices and processes served on the process agent.
If there is no provision in the will waiving the requirement of a bond for the personal representative, a non-resident personal representative will be required to post a bond.
2. Conduct Estate Inventory
The executor shall file an inventory statement with the court that lists every asset owned by the decedent at death. The value of listed assets on the date of the decedent’s death of the inventory statement, must also be provided by the executor. This document, as well as all other documents filed with the court, will be available to anyone who visits the courthouse and requests to see the probate file on the decedent. In other words, anyone can ascertain the value of the decedent’s probate estate and the names of the decedent’s beneficiaries.
3. Notify Creditors
Prior to any distribution from the estate (for bequests, debts, taxes, or other reasons), the executor must publish a legal notice in the newspaper for four consecutive weeks notifying all persons, firms, and corporations who may have any claim against the estate (“creditors”) to give the executor notice of those claims.
The executor must give these creditors at least three-months from the date of the first publication of the notice to present their claims and should not make any payments from the estate before that time. Further, the executor must mail notice of the estate administration to those creditors of the decedent and estate of whom the executor is actually aware.
4. Pay Creditors
Once all creditor claims have been submitted to the executor, the executor will pay all valid claims. If the estate does not have assets sufficient to pay all valid claims, the executor must prioritize claims for payment, and in that case, beneficiaries named in the will may not inherit anything.
5. Filing of Tax Returns
The executor will also file all relevant tax returns for the decedent’s estate and pay all taxes due. Those returns include the federal estate tax return, the state inheritance tax return, the federal and state gift and income tax returns, and the state intangibles tax return.
6. Preparing Annual Accounts
If the probate takes longer than one year, the executor must file an annual account with the court each year. The annual account will detail all of the receipts and expenditures of the estate during the year of the account.
7. Distribute to Beneficiaries
After the appropriate time periods have expired for payment of creditor claims and taxes, and after paying all valid debts and taxes of the estate, the executor is responsible for distributing any remaining estate assets to the beneficiaries of the estate.
If the decedent had written a valid will, the executor will distribute the assets to the persons named in the will. If the decedent had not written a valid will, the executor will distribute the assets to the persons designated by statute in the proportions designated in the statute.
8. Prepare Final Account
After the executor has completed all of his or her responsibilities, the executor will file a final account with the court in order to close the estate. The final account will detail all of the receipts and expenditures of the estate since the last annual account, or if the estate is closed within one year, during the entire probate process.