What You Need to Know About Probate in North Carolina

What You Need to Know About Probate in North Carolina

If a loved one has recently died, you may discover his or her estate must go through probate in North Carolina before it can be finalized. Here are some common questions and answers about the probate process: Q: What is probate? A: Probate is the process used to distribute the assets and settle the debts of the deceased. It is handled through the court system and involves an Executor or Administrator who coordinates with the courts throughout the process. Q: What is the difference between an Executor and Administrator? A: An Executor must be named in the will as the party who will handle the estate. If the person died without a will, did not name an Executor, or the Executor is unable or unwilling to assume the responsibilities, the courts will appoint an Administrator to settle the estate. The Executor or Administrator is responsible for ensuring all debts are paid and the assets are distributed in accordance with the will or in the absence of a will, in accordance with the law and/or ruling of the court. The Executor can be held liable in certain instances (for example, if assets are distributed before debts are paid), so if you are named as Executor, you may wish to speak with a probate attorney about your duties and responsibilities. Q: If my spouse had a will, do I still need to go through probate? A: It depends on how their assets and liabilities were structured and whether any trusts were set up to avoid probate. You may not need to go through probate if: Your name is listed jointly on...
What is a Living Probate?

What is a Living Probate?

By E. Drew Nelson, Attorney You have a last will and testament in place, but do you worry that one of your relatives or heirs might challenge your will after your death? Recent changes in the estate laws of North Carolina have provided an option never before available to North Carolinians – the chance to have a Living Probate. If you are a resident of North Carolina, you can now seek a judicial determination that your last will and testament is declared valid during your lifetime. Until recently, you would execute a will and after your death the will would be probated. Anyone challenging your will would come forward at that time and file the challenge with the courts. The option now exists to address any potential challenges while you are still alive. If the will is declared valid by the court during your lifetime, this would serve to bar future challenges or caveats after your death. This tool can provide a family peace of mind that their well thought out estate planning will not be challenged by a disgruntled heir or unhappy family member after their death. In order to petition the court for a determination as to the validity of your will, an application must be filed showing the court that you possessed testamentary capacity (were of “sound mind”) at the time you executed the will. You must also show the court that you were not subject to any undue influence. All interested parties will have a chance to come forward and bring any disputes as to the validity of the will to the attention of the...
Contested Wills: When is a Last Will Not “The” Last Will?

Contested Wills: When is a Last Will Not “The” Last Will?

By David Inabinett, Attorney at Law There is something that feels “final” about making one’s last will and testament. Even though that document may be changed or amended any time by the person making a will, everyone has a sense that this is now “done” when a will is signed. However, with extended life expectancies, the prevalence of dementia and Alzheimer’s disease, and more frequent changes in domicile, second marriages, stepfamilies and stepparents, chances that a will may leave certain heirs or “would-be heirs” disgruntled and disappointed are pretty good; the law allows these unhappy parties to take action and contest the will. Enter the “will caveat” lawsuit or devistat vel non, derived from the Latin phrase meaning “he devises or not.” In order for a will to be validly executed in North Carolina, the person must sign the document and it must be witnessed or “attested” by two (2) competent witnesses. The person must intend to sign the document as his/her will and do so by signing it or by having someone else in the person’s presence and at his/her direction sign the person’s name to it. The person must signify to the attesting witnesses that the document is his/her will by signing it in their presence or by acknowledging to them his/her signature previously signed on it. The attesting witnesses must then sign the will in the presence of the person making the will, but need not sign in the presence of each other. To be capable of signing a will, a person themselves must satisfy four (4) essential elements: The person comprehends the natural objects of...