What is Probate?

“Probate” can be a confusing term because it is used to describe two distinct processes that must be undergone when a person with a will dies. The person who made the will is referred to as the testator. Once the testator dies, there is a process that must be gone through to “admit” the will to probate, or prove its validity to the court. Once the clerk of court accepts the will as valid, the will then goes “into” probate, which is the point where the estate is properly distributed to the deceased’s creditors and recipients from the will.

The person responsible for overseeing the probate of a will is referred to as the executor. The testator can specifically identify a person they wish to act as their executor in the will, and that person will have 60 days after the testator’s death to petition the court to admit the will to probate. If the testator does not name an executor, or one is named but does not apply for probate with the court within the 60-day deadline, then any other person with an interest in the estate is allowed to apply for the will’s probate (provided that they give any named executor at least 10 days’ notice).

The executor or party with an interest in the will must take the will to the clerk of the superior court, usually in the county in which the testator lived. There the executor or interested party must swear via affidavit that they are the person so named in the will and/or the nature of their interest in the estate. In the affidavit before the clerk, the executor/interested party must also provide the value and types of the testator’s property, as closely as can be determined; the names and addresses of each party receiving an interest in the testator’s property (or an assertion that a party’s address could not be ascertained, if applicable); and the names and addresses for the legal guardians of any minors left property in the will.

At that point the clerk of court will issue a summons to each party named in the will, and schedule a probate hearing with the executor.

The probate hearing is where witnesses appear to testify in front of the clerk of superior court as to the will’s validity. It also gives anyone contesting the will the chance to raise their objections.

An “attested” typewritten will is the easiest type of will to prove as valid for probate. To be attested, the testator must have gone through a certain process before their death to make the will qualify as “self-proven.” The testator can execute a self-proving affidavit before a notary public by bringing the two people who witnessed the testator sign the will. The witnesses attest to the notary that the testator is of sound mind and that the will is signed by the testator.

If the testator properly went through this process to make his or her will self-proving, then the will’s witnesses do not have to appear before the clerk of court in order for the will to be admitted to probate. Rather, the notarized attestations from above are usually sufficient, unless the will is being contested.

If the will was not self-proven while the testator was still alive, then the two witnesses who witnessed the testator sign the will can appear and attest that the will is valid before the clerk of court.

If one of the will’s witnesses is unavailable to attest that the will is valid, other proof (such as handwriting samples) can be used to verify the witness’s signature on the will. If both witnesses are unavailable, two new witnesses may testify that the testator’s signature is valid.

Once the will has been proven as valid, the court will give the testator a letter authorizing him or her to act on the estate’s behalf. The testator has three months after taking this position to file an inventory of the deceased’s estate assets with the probate court. After this, the testator is responsible for alerting the deceased’s creditors that the will is in probate; securing living allowances for the deceased’s spouse and/or minor children, if any, from the estate’s cash assets; paying the deceased’s creditors; preparing and filing tax returns on the estate’s behalf; distributing the estate’s remaining assets to recipients in the will after all other debts and taxes are paid; and preparing a final accounting for the court.

It is common for a testator to name an executor in the will who they personally trust to oversee their affairs, but many people who lack specific knowledge in estate law are overwhelmed by the lengthy and burdensome process. If you are facing the probate of a will, please contact an experienced estate law attorney to help you and your loved ones through the process. Arnold & Smith, PLLC is an aggressive civil and criminal defense litigation firm in Charlotte, NC that handles both family and estate law. Contact our office today for a consultation with one of our dedicated estate law attorneys.