Estate Administration in North Carolina and South Carolina
The loss of a loved one is a deeply painful experience. Wrapping up their financial and property affairs while bearing the emotional weight of the loss can feel like the hardest thing you’ve ever had to do. When a person passes, it is necessary to begin administering their estate as soon as possible.
Estate administration is the process of winding up the affairs of an individual who has passed away, resolving any outstanding debts and transferring their assets to their beneficiaries or heirs. This can be an intimidating, detailed, and complicated process. Seeking out an experienced attorney for legal advice regarding estate administration can ensure that this delicate matter is handled properly.
What is an Estate in North Carolina and South Carolina?
An estate is the collection of assets that a person owned on the day of their death. Assets could include bank accounts, investment accounts, retirement accounts, real estate, business entities, automobiles, boats, etc. Depending on the ownership designation of the assets, the assets may be considered probate assets or non-probate assets.
Probate assets are assets that pass through the probate process. Typically, probate assets are those that are owned by the deceased person at the time of their death, solely in their name, and without a beneficiary designated to receive the property upon death or transferred in a trust during the individual’s lifetime. Non-probate assets are assets that pass outside of the probate process. Examples of non-probate assets include, but are not limited to insurance policies, retirement accounts, and transfer on death accounts.
Even if you have a last will and testament, estate administration will be necessary to transfer your probate assets to your loved ones through the South Carolina or North Carolina Probate Court process.
What is Probate in North Carolina and South Carolina?
In North Carolina, probate is the court supervised process that involves resolving the outstanding debt of a deceased person and transferring the legal interest of a deceased person’s assets to their beneficiaries or heirs. Often, the word “probate” is interchangeably used with the words “estate administration.”
The court in the county in which the deceased person resided supervises the probate process. Whether an individual dies without a will (intestate) or with a will (testate), probate assets have to go through this process before your beneficiaries or heirs may inherit the property. Probate on average lasts about one (1) year. This time to fully administer your estate could be extended to the size, nature, and complexity of your assets.
What happens during probate?
Probate does not occur automatically when someone passes. The process begins once the court appoints a personal representative of your estate. If the deceased person had a will, the personal representative is called an “executor” and is usually nominated in the will. If the person did not have a will, then the personal representative is called an “administrator” and will likely be the next of kin or another person the family nominates. The personal representative is required to complete tasks such as:
- Submitting the will and any codicils to the Probate Court
- Notifying all Heirs
- Collecting Assets
- Selling Assets
- Preparing and filing inventories
- Preparing and filing accounts with the probate court
- Resolving creditor claims
- Distributing assets to heirs, and
- Handling Tax Returns
The Benefits of Having a North Carolina or South Carolina Probate Attorney Assist with Estate Administration
Estate administration commonly comes with its share of problems and complexities that require the skills of an experienced Probate Attorney, such as navigating the state specific statutes related to probate, estate tax compliance, resolution of family disputes, establishing guardianships for minors, the proper filing of affidavits and motions, etc. Also, it can be very time consuming. An experienced Estate Administration attorney can ensure the process is handled in a smooth and efficient manner. The experienced probate attorneys at Providence Wills and Trusts offer three levels of assistance with probate administration, ranging from merely acting as a legal advisor to the executor of the estate on one end of the spectrum, all the way up to stepping in and serving as personal representative so that the family can focus on the non-legal aspects of their loss on the other.
Common Misconceptions About Estate Administration
#1: As long as I have a Will, my stuff doesn’t have to go through probate.
FALSE. Your Will is not a tool to avoid probate, it is a tool to assist with probate. Essentially, a will provides the court with guidance on who needs to be appointed as your personal representative, as well as who is supposed to receive your estate. Your personal representative cannot simply take your will to the bank or DMV to gain access or control of your assets. The court is the only entity that can put the words of your Will into effect and give your executor the power to carry out your wishes.
#2: Even if I don’t have a Will, my spouse or my kids get all of my stuff automatically.
FALSE. Unless you have nominated your spouse or children as beneficiaries on your assets, they cannot inherit your probate assets until they have been through probate.
#3: You can inherit a person’s debts after they die.
FALSE. Unless you decide to keep an asset that has a loan or other debt attached to it, then you do not inherit any debts from someone who has passed away. Additionally, a person’s debts do not “die with them.” Creditors seek to be repaid from the assets of the estate, not from any beneficiary or heir. The repayment of debts must take place prior to the beneficiaries or heirs receiving their inheritance.
#4: If someone dies without a Will, the state gets everything.
FALSE. If you die without a will, state law determines who receives your property. This is referred to as intestate succession. Intestate succession is based on your next of kin. Only until it is determined that you do not have any living relatives does your property go to the state. In that instance the property will “escheat,” or become the property of the State of North Carolina, which is a rare occurrence. A more common problem is that property that goes undiscovered will end up in the North Carolina Unclaimed Property Division, which holds over $1 billion in unclaimed funds. After a few years, unclaimed property will also escheat to the state if it is not claimed.
Schedule a consultation with us!
If you need assistance with administering a loved one’s estate, give us a call at (704) 734-9754 to schedule your Estate Administration Roadmap Meeting with an experience North Carolina Probate Estate Administration Attorney.