Probate is a legal process that occurs when someone passes away. It is the process of transferring assets from the decedent’s estate to beneficiaries or creditors under the supervision of the probate court. In North Carolina the Superior Court serves as the probate court. There is a Clerk of the Superior Court in each of the 100 counties in North Carolina.
The process of administering an estate can be daunting, requiring strict adherence to deadlines and other legal requirements. It can also be a long process. Generally, in North Carolina probate takes about 4 months to complete. The timeframe can be much longer if there are complications such as probate disputes. It can be shorter if the estate is small and eligible for a special procedure reserved for estates with limited assets, or if the surviving spouse is the sole heir. North Carolina’s Administration of Decedents’ Estates law governs the probate process. N.C. Gen. Stat. § 28A-1-1 et seq.
Administration of the Estate
Probate has two meanings. It refers to the process of proving the validity of a will. It also refers to estate administration. To initiate a probate matter, a petition along with the will, if any, and death certificate must be filed with the Clerk of the Superior Court in the county where the decedent was domiciled at the time of their death. G.S. § 28A-2-1
The estate administration process involves making sure that the decedent’s debts are paid and that their assets are distributed. However, there are many steps involved in the process, timelines that must be followed, and legalities that must be adhered to. The personal representative is charged with taking care of the tasks required in the administration process. If a decedent had a will, the personal representative is called the executor. If the decedent did not have a will, the personal representative is called an administrator.
The administration process is generally the same whether or not the decedent left a will. The main difference is that when it comes time for the personal representative to distribute estate assets, there is no will directing who gets what. Instead, the personal representative must go by the provisions in North Carolina’s intestate succession laws. N.C. Gen. Stat. § 29-1 et seq. They dictate who a decedent’s next of kin is for purposes of entitlement to inherit.
There are scenarios that allow for an expedited distribution of assets. With the Collection of Property by Affidavit Procedure, estate assets can be distributed to those entitled to specific assets without the estate having to go through probate. The procedure is only available to intestate estates with assets not exceeding $20,000. N.C. Gen. Stat. § 28A-25-1. The Summary Administration process can be used when the surviving spouse is the sole heir. N.C. Gen. Stat. § 28A-28-1.
During the probate process, families often find themselves embroiled in disputes that they are unable to resolve through negotiation. As a result, the issues must be litigated in court. This is referred to as probate litigation. While most matters during probate in North Carolina are handled by the Clerk of Superior Court, a Superior Court judge presides over litigation. There are many issues that can lead to probate ligation, including:
- Will contest. When there are disagreements among family members as to whether a will is valid, the result is a will contest. In some instances, complex family relationships can lead a testator to make changes to a will much to the anger or disappointment of those who are disinherited. This can lead to a will challenge. If there is uncertainty as to the mental competency of the testator when they executed the will or if there are irregularities in the execution process, the validity of the will may be challenged.
- Will construction. If a will is poorly drafted and has language which is vague or open to conflicting interpretations, the issue of how to interpret language may have to be litigated before a Superior Court judge.
- Disputed creditor claims. The personal representative is required to pay all debt owed by the estate. However, if the personal representative determines that the debt is not valid and denies payment, or questions the validity of the claim, the matter may have to be settled by a third party.
- Fiduciary malfeasance. If a beneficiary believes that the personal representative has mishandled estate property or that their actions are inconsistent with the terms of the will, they can challenge the personal representative’s action in court.
Regardless of the type of litigation, probate litigation can significantly delay the process and as a result, delay the distribution of assets to beneficiaries and heirs who sorely need it. Further, as fees associated with probate litigation are generally paid out of estate assets, extended litigation can cause a reduction in the value of the estate.