How to Inherit Property Without Probate
Probate is the lengthy court-supervised process required to authenticate a will and wrap-up the deceased’s estate so that the wishes in their will may be carried out. It gives a person, usually the surviving spouse or another close family member, the authority to gather the deceased’s assets, pay off their estate’s debts and taxes, and eventually distribute the remaining assets to the people who will inherit them. It is a time-consuming process with very specific requirements.
However, North Carolina is one of the few states that offers a way, if the remaining value of the estate is not too large, for the deceased person’s family to wind up their loved one’s estate without entering formal probate. This can also be completed regardless of whether or not the deceased person executed a will—if there is no will, the deceased’s property will be distributed according to North Carolina’s intestacy laws, which provide the state’s default inheritance distribution amongst relatives. To wind up your loved one’s affairs sans probate, all is required is the filing of an affidavit with your local superior clerk of court.Terminology
In estate law, there are two distinct qualifications of property: real and personal. Real property consists of land, buildings, and other attachments onto the land. Personal property consists of all other property—automobiles, bank accounts, family heirlooms, etc. Personal property is the type of property that can be distributed via the affidavit discussed below; real property must still go through the official probate process.
An executor is the person responsible for overseeing the administration of the deceased person’s estate if they left a valid will. The deceased may have named a specific person who they wished to appoint as their executor in the will, but if they did not appoint one then a party with an interest in the will may apply with the court to act as executor. In the event that neither of these things occurs the court can appoint a person to serve as the executor.Affidavit Requirements
On an Affidavit for Collection of Personal Property of Decedent, someone informs the clerk of court of that the sum value of the estate’s personal property does not exceed $20,000, or $30,000 if the surviving spouse is the affiant. Each of these values is calculated excluding any liens or other encumbrances the deceased owed on the property. These values also do not include any spousal allowance to which the spouse is entitled. A spousal allowance is something provided by the estate laws of North Carolina and many other states to automatically provide a surviving spouse with the first $30,000 from the deceased’s personal property. The allowance is exempt from creditors.
As to timing, the affidavit cannot be filed until at least 30 days have passed since the deceased person died.
If the deceased had a will and owned real property, the person filing the affidavit must also attest that the person’s will has been officially probated in all counties where the deceased owned real property—because the affidavit can only deal with the distribution of personal property.
The remainder of the affidavit will provide a list of the deceased’s personal property and accounts, as well as contact information for each person entitled to a share in the deceased’s estate.Who May File the Affidavit?
The following individuals qualify to submit the Affidavit for Collection of Personal Property to the superior clerk of court:
- An heir who is inheriting property under North Carolina’s intestacy laws, if the deceased died without a will;
- An executor, if the deceased executed a will and appointed an executor;
- A person named in the will;
- The public administrator the court appointed to oversee the estate’s administration (discussed in “Terminology” above);
- And more.
Estates, like the individuals who owned them, vary widely in terms of content and complexity. If you are facing the administration of a deceased loved one’s estate, or are interested in drawing up an estate plan, it is essential to speak with an estate law attorney who can guide you through the process. As discussed here, when real property is involved, the lengthy official probate process cannot be avoided. Likewise, even if a decedent did not own any real property, probate will still be required if the value of their personal property exceeds $20,000 (or $30,000 if the surviving spouse inherits everything). Arnold & Smith, PLLC is a civil and criminal defense law firm with offices in Charlotte, Mooresville, and Monroe, North Carolina. Our dedicated attorneys handle a wide variety of family law and estate law matters for clients throughout the Queen City and surrounding areas. Contact us today for a consultation.