Probate Law in Winston-Salem, 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 Winston-Salem, North Carolina probate law.
How Does Winston-Salem, 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 Winston-Salem 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 Winston-Salem, NC court battles.
Winston-Salem residents that pass on should take care to leave a will so their last wishes can be fulfilled. This will then be delivered to the Estate Division of the Forsyth County Superior Court. This is where probate cases, as well as any estate dispute cases, are held.
Notifying the Court
Notifying the court to open the estate is the next step. The Winston-Salem, 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.
The executor must identify the decedent’s remaining assets. To do this, she or he reviews any related banking or financial documents and any other personal documents that could lead them toward recovering assets. Some examples of documents to collect are insurance records, titles, stock portfolios, and tax returns or filings.
To freeze and later close accounts, the executor must notify any financial institutions with outstanding accounts of the individual’s death in Winston-Salem. If there are any physical valuables in the decedent’s property, it is not uncommon for the executor to collect these items to prevent theft or damage.
The executor then determines the valuation of each item of the estate. This can be a lengthy process depending on the ease of locating all assets, including real estate, stocks, bonds, etc. Notifying creditors is the next step.
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.
Winston-Salem creditors have 90 days to file a claim once the Notice to Creditors has been published. The notice must be published in a local newspaper or in visible locations around the courthouse. Once the 90 days have passed a creditor has no legal standing to collect on a claim unless they can show extenuating circumstances to the court. This 90-day process is generally why probate cases take between 4-5 months in Winston-Salem.
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 Winston-Salem, 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 Winston-Salem 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.
Once an executor has received court confirmation they must publish a Notice to Creditors. This Notice can be posted at the courthouse and in four other public places in the county. It may also be published in the newspaper of the county of residence of the deceased. According to the North Carolina Administrative Office of the Courts, the executor must follow a specific order when settling creditor claims. This generally starts with property liens. The executor must also file an accurate inventory of assets of the estate within 3 months of being appointed.
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.
If an estates total value is greater than $20,000, or if the deceased owned property in their name only, the North Carolina General Assembly requires probate as a matter of law. However, this can be circumvented in some cases if an estate totals more than $20,00, but no more than $30,000 and is only passed directly to a surviving spouse. An experienced probate attorney in Winston-Salem may be able to help you with these matters.
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 Winston-Salem probate law attorney to make the correct decision.
Work With an Experienced Local Probate Law Attorney in Winston-Salem, 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 Winston-Salem 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!