Probate Law in Durham, NC
What Is a Probate Law?
A probate is a legal process that determines the validity and administration of a last will and testament. When an individual leaves behind assets, the court appoints an executor (if one is not named in the will). In either case, the appointed official collects all remaining assets, pays off any remaining liabilities, and disperses the remaining assets to beneficiaries listed in the will or to beneficiaries designated by the executor (if no will is present), all according to Durham, North Carolina probate law.
How Does Durham, North Carolina Probate Law and the Probate Process Work?
Locating the Will
The first step is determining whether a will even exists. In most cases, the decedent leaves clear direction regarding the location of the last will and testament or files one with a primary attorney. However, sometimes people have to go digging for one. In other cases, there is no will and the Durham court-appointed executor must handle all assets.
It is also possible that the deceased created a living trust instead. A living trust is a document that places all assets into a trust and that transfer to a designated trustee upon death. Living trusts do not require any probation or courts. For this reason, many parties elect to go this route for the sake of convenience and avoiding drawn-out Durham, NC court battles.
The 14th District of the North Carolina Superior Court has jurisdiction over the administration, settlement, and distribution of estates in Durham County. If the deceased lived in Durham, the probate will be filed with the Clerk of the Superior Court of Durham County.
Notifying the Court
Notifying the court to open the estate is the next step. The Durham, North Carolina probate law court clerk can handle this step, unless there is a named executor.
After the court receives notification, a scheduled hearing takes place. This officiates the executor appointee and grants him or her legal authority to operate on behalf of the last will and testament.
If there is no will and no designated executor, the court chooses the executor. Making this selection differs from state to state, but generally, the surviving spouse is first in line. After that, any adult children, parents, or siblings receive consideration.
Consolidating Assets
The executor’s first responsibility is to identify and account for the decedent’s remaining assets. This process involves reviewing financial records, such as bank statements, insurance policies, stock portfolios, and tax filings. Personal documents can also reveal overlooked accounts or valuables that need to be included in the estate inventory.
Once assets are identified, the executor must notify financial institutions in to freeze and eventually close any accounts tied to the deceased. For physical valuables like jewelry or collectibles, the executor may take possession to safeguard them from theft or damage during probate. Proper documentation and secure storage are key to protecting these assets.
After securing and identifying the estate’s assets, the executor assesses their value. This step may require professional appraisals, especially for real estate, investments, and other significant holdings. With valuations complete, the executor moves on to notifying creditors, ensuring that outstanding debts are addressed before distributing the remaining estate to beneficiaries.
Notifying Creditors
Generally, the executor notifies creditors associated with the estate so they can make a claim if they have outstanding balances. Creditors have a specific time frame in which to file a claim, and this window can vary depending on state law.
Under North Carolina law, a creditor must submit a claim against a Durham estate within 90 days of the mailing or initial publication of a creditor notice. The executor will publish this notice once weekly for four consecutive weeks in a Durham County newspaper. Also, the executor can reject the claim either partially or fully. The creditor then has the option of filing a lawsuit against the Durham estate within 3 months of the rejection receipt.
Squaring Away Final Payments
The executor pays any funeral expenses (unless the family covers them) and any debts or taxes from the estate. The executor determines which creditor claims are accurate. From there, the executor squares away any outstanding debts to clear the estate of all obligations before being dispersed according to the will.
Proceeding With the Court
After valuing all the decedent’s assets and paying all outstanding debts, the executor submits a report detailing all estate spending to the Durham, North Carolina courts. At this point, a judge reviews the materials. Assuming everything was done correctly, they render a decision to clear the executor to move forward with the final step.
Executing the Last Will and Testament
At this point, the executor disperses the assets to the designated beneficiaries laid out in the will. Depending on how detailed the will is, this could either be a simple process or it may divide the remaining family. A Durham probate law attorney can help you or a loved one avoid these costly mistakes and counsel you on the best course in the event of a family estate battle.
A Durham executor is not required to furnish a bond to perform their duties, unless the will expressly requires that bond be furnished. Once the executor has received court confirmation, or Letters, they must publish a Notice to Creditors. This Notice can be posted at the Durham County Courthouse and in four other public places in Durham.
Additionally, under North Carolina law the executor must follow a specified order when paying off creditors, starting with property liens. However, the executor should not pay any claims until after the time for filing claims has expired. The executor must also file an accurate inventory of the estate within 3 months of receiving Letters.
If there is no last will and testament, the executor assigns beneficiaries in accordance with North Carolina state laws. Generally speaking, the surviving spouse is first in line to receive any remaining assets. After that, the decedent’s children come next. Any surviving siblings would be next. From there, the executor works down through the surviving family based on their direct relation.
Is Probate Law Necessary?
No. There are alternatives to probating a will, but this really depends on the circumstances surrounding the decedent. For example, the deceased may have established a living trust that circumvents the probate process. The individual may have not owned any assets, thus simplifying the North Carolina process.
In Durham, it is possible to avoid formal probate. Collection by Affidavit can be used if the value of the decedent’s personal property, less liens, encumbrances, and spousal allowance, does not exceed $20,000. The threshold is $30,000 if the surviving spouse is the collector and sole heir or devisee. Additionally, this method can be used regardless of the value of any real property.
What Are the Differences Between a Living Trust and a Will?
Living trusts are a way to avoid probation. However, this is one of the primary differences between a living trust and a will. Another main difference is that a living trust is only as good as the assets therein. This means that if you pass away without funding the trust with your assets, it is practically worthless. On the other hand, you do not have to fund a will, as you merely choose where to transfer your assets upon your death.
Setting up where your assets go after you die is an important decision. This is why you should consult with a Durham probate law attorney to make the correct decision.
Work With an Experienced Local Probate Law Attorney in Durham, North Carolina
Probate law attorneys assist with valuing your total assets and can provide insight into what the best move would be for you. Are you in need of a Durham probate law attorney who can help you and preserve the future of your family? We can even help you connect with an attorney across North Carolina state lines.
Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced probate law lawyer in your area!
About the Author
Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.
With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations.
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