When an individual passes away, his or her estate often needs to go through probate. In North Carolina, there are two probate procedures - one for individuals who die with a will or estate plan, another for those who do not.
Individuals who pass away with a will died "testate." If an individual had a will, it is likely her or she named an estate executor to handle probate administration. The court will issue "Letters Testamentary" to the named executor allowing them to carry out administration of the estate.
Individuals who die without a will are said to have passed away "intestate." In this case, an individual will have to petition the clerk in the county where the deceased person lived to be named personal estate administrator. If more than one person wants to be administrator, the court will determine who the administrator is based on the relationship he or she had with the deceased. For example the surviving spouse is given priority over all others, if there is not spouse, then anyone who is entitled to receive property under North Carolina's intestacy laws, any next of kin or even a creditor all have standing to serve as estate administrator.
Administration Of The Estate
After the executor or administrator has been determined, probate commences.
Executors and administrators have similar duties, they must:
- File an inventory of the estate listing all of the deceased's real and personal property and the value of each property
- Notify creditors via an advertisement or notice in a local newspaper and publication at the local courthouse for a set period of time
- If there is a surviving spouse or dependent children an application for a year's allowance must be with the clerk
- Determine the accuracy and priority of any claims made against the estate by creditors, then pay creditors accordingly from state funds
- Sell real estate or personal property as necessary
- File the deceased's final income tax return as well as a tax return for the estate
- Distribute estate assets
Distributing The Assets
The distribution of assets differs depending on whether there was a will or not. If a will is present and valid, the assets will be distributed according to the will's direction. If no will is present, then assets are distributed according to the state's intestacy laws.
In North Carolina, the law grants a share of the deceased's assets to the surviving spouse. This share depends on whether there are surviving children and the number of surviving children. If no spouse survives the deceased, the estate is divided between surviving children. If no spouse and no children survive the deceased, the estate is divided between the paternal and maternal sides of the deceased's family, beginning with the parents, then the grandparents, then uncles and aunts and so on.
After the estate has been distributed, the executor or administrator will need to file a final accounting with the court. The clerk will then enter an order discharging the executor or administrator from any further duties.