Probate is required whenever a person dies owning assets in his or her name, regardless of whether the decedent had a valid will. After a person dies, probate is the legal process of administering the estate (i.e. the possessions and liabilities) of the deceased person, who is referred to as the “decedent.” The person who administers the estate is called the “executor” or “personal representative.” In North Carolina, the probate process is overseen by the Clerk of Superior Court. Sometimes probate is also referred to as “estate administration.”
The probate process starts when a family member or personal representative of the decedent files the decedent’s will and other forms and documents with the Clerk of Superior Court in the county of the decedent’s personal residence. If the decedent did not have a will, then he or she is considered to be “intestate” and a separate form is filed requesting permission from the Clerk of Superior Court to administer the decedent’s estate.
During the Probate Process
During the probate process, the personal representative is required to notify all beneficiaries of the estate, gather all of the decedent’s assets, file an accounting of all of the decedent’s property, settle any debts the decedent owed to creditors, and pay any taxes or administrative expenses owed by the estate. The role of the Clerk of Superior Court is to oversee the process and ensure that the personal representative properly carries out his or her duties and obligations.
Not All Assets Are Subject to Probate
Some assets are excluded from the probate process in North Carolina. Assets that are held in joint ownership with rights of survivorship, such as a marital home, will pass automatically to the survivor without being subject to probate. Any assets that are controlled by a beneficiary designation, such as some retirement accounts, 401(k)s, IRAs, life insurance policies, or annuities, are generally not subject to the probate process. Finally, if assets are held in a trust, they may not be subject to the probate process.
Concluding of the Probate Process
The probate process ends when all of the decedent’s debts, taxes and administrative expenses have been paid and all of the decedent’s remaining possessions have been distributed to the decedent’s beneficiaries. At such time, the Clerk of Superior Court will release the personal representative from his or her duties and issue what is referred to as a “closing letter” indicating that the probate process is complete.