Charlotte Probate FAQs

If you recently lost a loved one, or you have been appointed as someone's estate executor, you may have questions about the North Carolina probate process. Probate refers to the court-supervised process that allows a person, typically the spouse, to distribute the deceased individual’s assets according to their wishes. When the deceased individual died with a will in place, the probate court will distribute their assets according to the will.

When the deceased individual dies without a will in place, the court will distribute their assets to their relatives according to North Carolina's intestacy laws. The probate process can be incredibly confusing, especially for those who are not familiar with it. We have listed some of the most commonly asked questions from our clients below.

If your loved one has recently passed away, you may be wondering how you will gain access to his or her property. The probate court is responsible for distributing probate property, but not all property falls into this category. Certain types of assets are not probate assets, and they do not need to go through the probate court, such as:

• Homes or other real estate assets that the deceased individual owned in joint tenancy with someone else are not subject to the probate process. In many cases, spouses will own a house together in joint tenancy, and when one spouse dies, the house automatically passes to the surviving spouse.
• Similarly, when someone owns real estate in “tenancy by the entirety,” the property will automatically transfer upon his or her death.
• Assets and accounts payable on death, such as retirement accounts, and payable on death bank accounts. When the deceased opened these accounts, he or she will have had the ability to choose someone as the beneficiary. These assets pass automatically to the beneficiary without the need to go through the probate process.
• Assets owned by a revocable living trust
• Proceeds from a pension or insurance policy that are payable to a beneficiary upon the owner's death

Some estates are less complicated than others, and North Carolina offers a simplified probate procedure in those cases. This process is called summary administration, and it allows the surviving spouse of a deceased person to gain access to the assets left to them, or intestate assets, more quickly. North Carolina Courts will allow the summary administration process when the sole beneficiary is the surviving spouse and they would inherit everything under state law, in addition to other requirements. The process is not available when the deceased persons will specifies that summary administration is not permitted.

To begin the summary administration process, the surviving spouse must file a petition with the clerk of court in the county where the deceased person lived at the time of their death. The petition must be signed and verified and include certain information, such as the value of the deceased persons property, sufficient identification of real property, the place of marriage, and more. If the clerk is satisfied with the petition and supporting evidence, if necessary, then the clerk will enter an order stating that no further administration is required.

The probate process typically begins when a loved one petitions the court to begin the process by submitting the deceased person’s will. Typically, people will appoint a personal representative in their will. When there is no will, or when the deceased individual did not appoint a personal representative, the probate court will appoint one. The personal representative must take an inventory of all of the deceased’s assets and protect them during the probate process.

When necessary, the personal representative will need to have estate assets appraised. If the estate owed taxes or debts, the personal representative might need to sell some of the assets to pay the debts. After paying all of the taxes and legitimate debts against the estate, the personal representative will distribute the remaining estate assets according to the deceased individual’s will. When the deceased individual did not have a will, the Probate Court will distribute the access according to North Carolina’s intestacy laws. The probate process ends when all the remaining assets have been distributed.

Whether you would like to create an estate plan, update your estate plan, or you are involved in a probate matter, Arnold & Smith, PLLC is here to help. Contact our Charlotte, Mooresville, or Monroe estate planning lawyers today to schedule your initial consultation.