Preliminary Legal Steps After Death
By Cowles Liipfert
If a loved one passes away, and after the funeral and other personal matters have been attended to, someone needs to determine whether an estate administration will be needed, whereby a personal representative for the decedent (usually called an “executor” or “administrator”) will be appointed by the probate court (the Clerk of Superior Court in North Carolina) to pay debts, funeral and administration expenses, file tax returns, etc., and to distribute the remaining assets to devisees (under a will) or to heirs (if there is no will).
Whether or not you make an appointment with our office, we suggest that you make a copy of the attachment linked to this article, titled Items to Bring to Your Initial Appointment and gather the information included on that list, in order to determine how to proceed. That information will be needed to determine whether an estate administration will be needed or is not needed. If you would like, an attorney in our office will be happy to meet with you to make such determination.
A North Carolina Will should be filed and probated in the office of the Clerk of Superior Court in the county of the Decedent’s residence. The word “probate” has two common meanings concerning estates: The first is that the probate of a will is the process by which the Probate Court determines a Will to be valid or not valid. If valid, the Court “probates” the Will, or certifies it to be the Decedent’s Will; we will refer to this meaning as “certification,” in an effort to minimize confusion. The second meaning of “probate” refers to the process by which the estate of a decedent is administered, i.e. The probate of an estate is the administration of the estate with the Court. We will refer to this meaning as “administration,” to minimize confusion.
If there are no assets or very few assets in the Decedent’s name, it may be possible to avoid a full administration of the Decedent’s estate. For example, it may be possible to have the title to a motor vehicle transferred to a new owner without having to go through a full estate administration. Likewise, tax or medical refund checks can often be cashed without a full administration of an estate, but other procedures will need to be followed. See linked article describing alternatives to full administration of a decedent’s estate.
Please be aware that assets payable at death to a named beneficiary, or assets owned in joint names by co-owners with survivorship rights, etc. are generally not required to go through a full administration in Probate Court. Also, real estate left to specific individuals under a Will generally goes directly to the named individuals, and does not technically go through court administration, but if title is to be transferred by those individuals within two years after death, it will usually be necessary to have an administration of a decedent’s estate. In that case, an Executor would be appointed by the Court, who could release the real estate from potential creditors’ claims.
If you gather the information shown in the Items to Bring to Your Initial Appointment, our office will be happy to meet with you and advise you whether or not a full administration will be needed, and to discuss what you will need to do.
Whether or not a full administration is required, the original Will should be filed with the Court and certified by the Court to be a valid will. Occasionally assets are overlooked at the time of death and are discovered later, perhaps years later, in which case it is easier to transfer those later-discovered assets to the proper recipients if the will was certified to be a valid will shortly after the date of the decedent’s death, rather than waiting until later to have the will probated.
If you have a preliminary meeting with our office to evaluate what you will need to do to settle a Decedent’s Estate, you will not be required to retain our firm to represent you. You may go to another attorney or even try to administer the estate by yourself without an attorney, if you wish.