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Probate & Estate Administration

Probate or Estate Administration is the legal process that deals with the distribution of assets and payments of debts upon a person's death.  It is often a long, bureaucratic process that involves following strict procedures and meeting deadlines.  As anyone who has gone through the process can tell you, dealing with probate can make the passing of a loved one even more difficult.  

In North Carolina, the Clerk of Superior Court has jurisdiction over the probating of wills, granting of "letters," and all other matters regarding the administration, settlement and distribution of a decedent's assets.  In other words, the Clerk of Superior Court is the judge of probate.  The proper county for probate of a decedent's estate is the county in which that person resided at the time of his or her death.  Generally, the involvement of an attorney is not required by law and people do probate estates without an attorney.  In those situations it is important to bear in mind that the staff in the clerk's office generally cannot explain the law.  They are limited to discussing proper filing procedures. 

If a person executed a will before his or her death, that will must be offered for probate and any person specified in the will is given priority to be appointed executor of the estate and issued "letters testamentary."  Letters testamentary give the executor the ability to collect and manage assets of the estate. If a person dies without a will, a spouse, adult child, or other family member normally applies to be appointed administrator of the decedent's estate.  If approved, that person will be given "letters of administration."  Letters of administration function like letters testamentary. In North Carolina, executors and administrators are also called "personal representatives" of the estate.  In most cases, the appointment of a personal representative is uncontested, however persons interested in the estate can challenge the appointment or seek the removal of the personal representative.

Depending on whether there is a will and where the personal representative resides, a bond may be required of the personal representative.  Generally, absent a will, a bond will be required of the personal representative. The bond is generally calculated at 125% of the decedent's personal property.  

The personal representative has many duties to perform.  Most importantly, the personal representative must collect all the assets of the decedent that make up the estate and give notice to all the decedent's creditors.  Schedules of assets and debts must be submitted to the clerk.  The personal representative must make an annual accounting each year the estate is open.  All of the decedent's heirs at law and devisees under the will must be identified and located.  If necessary to pay debts, the personal representative may sell the decedent's real property, which requires a special proceeding before the clerk unless the will specifies otherwise.  If the decedent owed real property outside of their country of residence, the personal representative may have to initiate an "ancillary administration" in the counties where the real property is located.  After the payment of creditors, the personal representative must distribute the remaining assets to the heirs or devisees.

Sometimes there is a dispute over the validity of a will.  If an interested party wishes to challenge a will, that person may file a "caveat" to the will.  The filing of a caveat requires the Clerk to transfer the matter to Superior Court for a trial by jury.  During this process the personal representative cannot distribute assets to beneficiaries under the challenged will, but must continue to perform his or her other duties as personal representative.

At the end of the process, the personal representative may seek a commission not to exceed 5% of the value of the estate.  The amount of the commission rests in the discretion of the Clerk, who must consider the time, responsibility, trouble and skill involved in the administration.