Probate is the process of proving a person’s will after their death. The probate process is not easy, but consulting with a probate and estate administration lawyer and learning how to avoid the most challenging areas of probate will help you and your family in the future.
When you pass away, the probate court is the ruling body that governs the distribution of your assets and payment or handling of your debts. This process happens under your terms if you have left a will and under the court’s terms if you die without a will. The procedure can be lengthy and frustrating for survivors to endure during an already emotional and stressful time.
Here are a few ways to avoid the probate process.
The Probate Process
Probate, also called estate administration, is the court’s process of allocating the assets of a person who has died, called the decedent. The proceedings begin when a decedent's personal representative files their will or requests permission to start administering their estate. If the decedent didn’t have a will, they die intestate, which means the court allocates assets the person owned individually according to the state’s guidelines, usually to the decedent’s closest blood relatives.
When the decedent dies with a will, the personal representative must follow the decedent’s wishes. The heirs, or people set to inherit from the decedent, are called beneficiaries. You may also hear personal representatives referred to as executors or administrators.
Duties of personal representatives include:
● Identifying the decedent's assets
● Paying the decedent’s debts from the estate assets
● Handling funeral expenses
● Paying court and administration fees
● Distributing the decedent’s remaining assets to their beneficiaries
In the county where the decedent lived, the Clerk of Superior Court will oversee the probate proceedings from start to finish, ensuring that the personal representative fulfills their duties.
How to Avoid Probate in North Carolina
After your death, the probate court must ensure that your assets are distributed legally and that the appropriate people inherit your property. From beginning to end, probate can take anywhere from nine to 18 months. If at any time a conflict exists during the estate administration, it could take much longer. There are a few common methods people use to achieve the goal of avoiding the probate process for different types of assets.
Joint With Right Of Survivorship
Most common among married couples, joint ownership is a simple way of retitling an account or asset to avoid having to put that asset through probate. When you own a property with someone jointly with right of survivorship (referred to as JWROS), the “right of survivorship” ensures that ownership transfers to the other person if you pass away.
Joint ownership is typical with assets such as:
- Bank accounts
- Real estate property, like a family home
Creating a trust for your assets and properly funding it is another way to avoid probate. You can transfer control of your property to a trust, which is a separate entity, and designate yourself as a trustee. Then, you name someone to become the trustee after you die. This successor trustee will take over your assets and distribute them according to the instructions you’ve written into the trust.
For example, if you have valuable property such as real estate, accounts, vehicles, etc., you can designate in the trust document who will inherit the property after your death. The successor trustee must distribute your assets according to the trust, and you’ll be avoiding the complicated probate process.
A payable-on-death designation allows you to name a beneficiary to receive all of the money in your bank account upon your death. The inheritor won’t have any control over the money until you pass away. This method will ensure that your loved ones automatically receive your money instead of enduring probate delays for months on end.
Finding a North Carolina Probate Attorney Near Me
If you want to leave a legacy behind for your loved ones upon your passing without the headache of a court proceeding, create an estate plan that avoids lengthy and stressful ordeals such as probate. Our trusted team at Carolina Family Estate Planning can help you build a comprehensive plan to address your family’s particular needs.
At Carolina Family Estate Planning, we believe in prioritizing each client's unique concerns and making the planning process stress-free. Call us today at (919) 443-3035 or fill out our contact form to schedule a needs-assessment and get your ducks in a row.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.