The Probate Process

When your loved one passes away, the probate process – that is, the distribution of your loved one’s estate – is unlikely to be foremost in your mind. Engaging an estate planning attorney to help you through this complex legal process can help provide relief for your family during a difficult time.

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Probate begins upon a person’s death, and is essentially the process of transferring assets from the person’s estate to beneficiaries or creditors under the supervision of the court. The probate process involves court verification of the existence and validity of your loved one’s will, as well as dispensation of their estate’s assets according to said will. If the deceased person failed to create a will, the probate process becomes more arduous (due to the need to determine how to distribute the assets and locate heirs). An executor – or administrator, if there is no will – bears responsibility to the court for overseeing the probate process. The executor must uphold a fiduciary, or good-faith, standard of care for the deceased’s assets and estate.

The Law Offices of Cheryl David can provide experienced legal advice to your family as you attempt to protect your loved one’s legacy during probate. Our attorneys possess a proven understanding of North Carolina estate, probate, will, and trust law, and can help you streamline the probate process.

How can I understand Probate in North Carolina?

As mentioned above, the probate process commences when a person passes away.  In some limited circumstances, probate may not occur – if the estate is very small, if the estate went solely to the surviving spouse by law, or if estate planning techniques to avoid probate were put in place prior to the person’s death. However, these situations are relatively rare. In most cases, probate must occur in order to settle the deceased person’s affairs and transfer the estate’s assets to the appropriate heirs, creditors, or charity organizations.

Do all assets have to go through Probate?

The probate process proceeds within the court system. The executor of the deceased person’s estate must file court paperwork as required by the state of North Carolina. In our state, several steps comprise the probate process. First, the local probate court will validate the deceased person’s will, if he or she created one during life. Next, the estate’s value is calculated for tax determination purposes. Then, Creditors must be provided with a public notice of death so they may make claims against the estate’s assets. A period then occurs during which interested parties may contest the validity of the will. The next step is the longest; for the duration of probate, the estate’s executor supervises the procurement of assets and determines the appropriate disbursement of funds. At the close of probate, the executor determines which heirs may take ownership of property according to the will’s provisions, and finalizes all paperwork with the court. If no will exists, the probate process is typically much more difficult, and the probate court will ultimately determine asset division among heirs pursuant to state law.

How Expensive is Probate?

What am I responsible for during Probate?

Depending on your role in your loved one’s will, your responsibilities during probate may vary. In general, an estate’s executor will carry the weight of responsibility during the probate process, as the executor’s duties include initiating probate with the North Carolina court system and meeting the estate’s obligations at every phase. If your loved one created a will, he or she will have named an executor to oversee the estate during probate. An executor has a fiduciary duty – the highest duty under the law – to act in the estate’s best interests. If your loved one failed to leave a will, or if the named executor is absent or incapacitated, the court will appoint an administrator, who is often an heir or family member, to supervise the probate process. In this case, the administrator assumes responsibility for the handling of the estate.

If you are an heir or family member of the deceased individual, you will have few responsibilities beyond waiting for probate to finish – at which point you will receive your inheritance. It remains important for you to review the manner in which the executor is handling your loved one’s estate, so that your loved one’s wishes are faithfully carried out during probate. If, for any reason, you believe your loved one’s will is invalid, the probate process also provides you with an opportunity to challenge the will. In this case, it becomes your responsibility to uphold your loved one’s wishes for his or her estate.

Heirs, executors or administrators, and concerned loved ones all stand to benefit from consulting a legal professional for guidance on their rights and responsibilities during the North Carolina probate process.

How can The Law Offices of Cheryl David help me with Probate?

When you are grieving the death of a loved one, attempting to navigate the unfamiliar intricacies of North Carolina probate law can be daunting. When you contact The Law Offices of Cheryl David for legal help, you can eliminate the stress, confusion, pressure, and much of the personal liability associated with the probate process.

When you engage one of our attorneys to represent you, you don’t have to worry about lack of knowledge regarding probate. Your attorney will walk you through all the legal aspects of North Carolina probate, and will act as your guide and advocate through every step of the probate process. The Law Offices of Cheryl David can provide legal assistance to executors, heirs, and other interested parties who reside in all 100 counties in North Carolina. For maximum peace of mind during your probate experience, please give us a call today at (336) 547-9999 or contact us online.

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