No one likes to think about their own death or the death of a loved one. But when a person dies, someone must be in charge of distributing their assets to their beneficiaries and paying off their remaining debts. The person named by the decedent (person who died) in their will to be appointed by the probate court (court) to administer the estate is referred to as the executor. The executor assumes several responsibilities within the probate process. Probate is the court process of proving the validity of and then overseeing that the instructions provided in the will are properly followed, and the estate is correctly administered. The process is referred to as estate administration when there is no will.
Often, individuals name their executors in their wills. If the decedent did not have a will, the person appointed by the court to administer the estate is referred to as the administrator (also known as executor). If a loved one died without a will, you might be wondering how you can assume that role in the eyes of the court. Read on to learn how to get appointed as an executor and how working with a probate lawyer from Carolina Family Estate Planning can help you with the process.
How Does the Court Determine the Executor?
Naming the will’s executor is one of the first legal steps that must occur after a person dies. North Carolina state law requires legal executors to be at least 18 years old and of sound mind. Additionally, executors cannot be convicted felons and live outside the state unless they have also appointed a resident agent.
However, numerous people related to the decedent may meet these requirements. As a result, North Carolina courts follow the following processes to determine who will act as the executor of the estate:
1. Review the Will
First, the court will review the person’s will to determine if they named anyone executor of the estate. If there is a named executor, the court will contact that person and walk them through the paperwork they must file to assume that responsibility.
However, if the decedent’s will did not name an executor or the decedent did not create a will, the court will be in charge of finding and naming the executor.
2. Ask for Applications
First, the court will ask specific people close to the decedent to assume the executor’s responsibility. The court will ask these people in this order, as long as they meet the essential requirements:
- The decedent’s spouse
- Any beneficiaries in the will
- Anyone entitled to the decedent’s property in the absence of a will
- Any next of kin
- Any creditor whom the decedent had unfulfilled obligations to
- Any person of good character in the county who fills out an application
If one of these individuals is interested in being an executor, they must apply to the Clerk of Superior Court through a form from the court’s office. This form includes a preliminary inventory of the decedent's assets. As such, the person who becomes the executor must have at least a general knowledge of the decedent's assets, bank accounts, real estate, and investments.
3. Grant Letters of Administration
Once the court chooses the person to be the executor, they will grant a letter of administration to that person, signifying that the individual now has the authority to manage the decedent’s estate. At this time, the person will need to take an oath to carry out their responsibilities in the decedent’s best interests.
Authority of an Executor
Once you become an executor of an estate, you will have the legal authority to:
- Collect assets of the estate, including any monies owed to the estate such as tax refunds or similar
- Pay debts and claims against the estate
- File legal documents on behalf of the estate such as required court filings and tax filings
- Distribute assets of the estate in accordance with the decedent’s will or the North Carolina intestacy laws (if there is no will)
If you need to sell any of the decedent’s assets to pay their debts, you’ll need to file a petition with the Clerk of Superior Court. However, if the decedent’s will directs you to sell specific assets, you will not need to gain permission from the court.
What to Do If You Want to Become an Executor for a Loved One
If you would like to assume executor responsibilities for a loved one after their death, the best time to talk to them about it is now. If the person lists you as the executor in their will, you will not need to jump through any hoops to assume the executor’s authority after they die.
If a loved one has recently passed and has listed another individual as the executor in their will, you can contest or challenge the executor. To do so, you must present convincing evidence in court that the person appointed to be the executor is not fit to conduct their duties. Estate and wills lawyers can help you collect this evidence.
However, if your loved one did not list an executor in their will, you can file an application with the Clerk of Superior Court to assume this responsibility.
Carolina Family Estate Planning: Your “Probate Attorney Near Me”
If you are searching online for a “probate attorney near me,” look no further. At Carolina Family Estate Planning, we can guide you through the executor application, offer legal counsel and support, and ensure that you fulfill all of your loved one’s wishes after they pass. We help our clients by taking on the detailed, challenging work of estate administration so that you can focus on your own life and family, with the peace of mind of knowing that you are respecting your loved one’s wishes.
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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.