Definition of Probate
In North Carolina, probate is the process that happens after a person (the "decedent") dies, regardless of whether the person died with a valid will or without a valid will. If a decedent dies with a will, then their property is distributed according to the will. If a person dies without a will, then North Carolina probate laws dictate how the decedent's assets are distributed. Probate isn't always required after someone dies; it depends on what assets the decedent owned.
The Probate Process in North Carolina
A probate proceeding begins when the court appoints someone to handle the administration of estate, i.e. a personal representative. Often, the decedent will already have named the personal representative in his or her will. If not, the court or clerk of the court will appoint someone (see below).
He or she must:
Types of Estate Administration
The process of administering the estate will vary depending on whether or not the decedent had a valid will and the type of probate administration the decedents estate will have to go through. If a decedent's estate is small enough, North Carolina law allows the estate to be probated using a simplified process (administration by affdavit or summary administration) that does not require the appointment of a personal representative. The estate can't contain any real estate or land or other forms of property requiring a deed or title.
|Code Section||NCGS Chapter 28A, 31, and 47: Administration Of Decedents' Estates|
|Types of Probate Administration||
Probate of a Small Estate: Net Value of Estate Does Not Exceed $20,000 or $30,000 if the surviving spouse is entitled to the entire estate.
1. Administration by Affidavit
2. Summary Administration
Formal Administration: (all other types)
|What Assets Go Through Probate?||
Probate is only necessary when a person dies leaving property in his or her own name (such as a house titled only in the name of the
Examples: Bank accounts in the decedents name with no co-owner and no beneficiary designation; real estate that is owned by the decedent individually; real estate that is co-owned as tenants in common; stocks and bonds in the decedent's name; tangible possessions such as clothing, jewelry, household furniture, and cars registered in the decedent's name only.
|What Assets Skip Probate Entirely|
|Who Supervises and Decides Probate Cases?||North Carolina Probate Courts|
|Estate Taxes||North Carolina does not have a separate estate tax (the law changed as of January 1, 2013).|
|List of Forms||
Probate forms (PDF) from the North Carolina Courts website
|Qualifications to become a Personal Representative||(1) The surviving spouse of the decedent;
(2) Anyone who is to receive property as indicated by the will of the
(3) Anyone who is entitled to receive property of the decedent by law
in the absence of a will;
(4) Any next of kin;
(5) Any creditor to whom the decedent became obligated prior to
(6) Any person of good character residing in the county who applies
with the clerk of superior court.
North Carolina probate laws can be tricky. Please consider contacting a local North Carolina probate attorney who can help you better understand the current North Carolina laws.
Contact a qualified attorney.