Probate is a court-mandated process that helps settle your affairs (and wishes) after your death. During probate, your estate debts are paid, your estate is settled, and various assets are distributed to your heirs and beneficiaries. However, probate can be costly, lengthy, and confusing in many states.
Also important to know is that probate is a public process and may allow estate assets, etc., to be viewed by anyone.
Many people, especially those new to North Carolina, believe it is necessary to “avoid probate.” They feel this way because, in most states other than North Carolina, probate can cause lengthy delays and hardships for the deceased’s family. However, in North Carolina, the probate laws are more straightforward, and the probate process is usually less costly and cumbersome than in most other states.
Usually, by simply using a will, you can name your heirs and the beneficiaries of your estate. If a will is not present, then the laws of an intestate will determine who receives your property. It still holds that if you own property, especially real property, it’s wise to have an estate plan drafted to allow the orderly passage of that property to your heirs.
However, every estate and case is unique, and getting the professional advice of a knowledgeable North Carolina estate planning law firm is the best path for you to determine how to address probate correctly.
Since the probate laws of North Carolina are less complicated, you may be able to manage a small to moderate size estate with a will and may avoid probate.
However, if your estate is more complex, then your estate planning lawyer may advise you to form a trust or other estate planning tools, which will help avoid complications upon your death.
It’s mandatory to note that the laws in North Carolina make probate a straightforward process compared to most states. However, this is primarily true if your estate is small and you have had your lawyer draft a detailed will where your wishes are coherently outlined. If this is done professionally, North Carolina may have few legal incentives to transfer your assets before your death to avoid probate. The critical item to remember is that only by consulting with a professional Raleigh estate planning lawyer will you be sure to make the right decision.
How Do I Know If Probate is Necessary or Not?
Even under North Carolinas’ legally simplified probate laws, there are numerous circumstances that demand that you go through probate. Also, when any process is termed “legally simplified,” a layperson will still find the process fraught with legalities and confusing. Therefore, obtaining the professional advice of a local estate planning law team is mandatory.
Simply put, probate court proceedings are required only if your deceased loved one owned assets in their name alone. Other assets may usually be transferred to family members or beneficiaries without probate.
Some simple examples of assets that do not need to go through probate may include the following:
- Assets that your deceased loved one owned in joint tenancy – These usually pass automatically to the surviving owner.
- Real estate the dead person owned with their spouse – or “tenancy by the entirety.”
- Assets that name a beneficiary outside of the will – For example, retirement accounts that already stipulate a beneficiary or payable-on-death bank accounts.
- Life insurance proceeds or pension benefits already payable to a previously named beneficiary.
- Any assets held in a revocable living trust.
These are only some examples, but you begin to see that these decisions, and the entire process, can be highly confusing, and you don’t want to get it wrong! Only your estate planning lawyer has the scope of knowledge needed to advise you in every aspect of your case.
What is “Summary Probate” in North Carolina?
“Summary probate” is a simplified legal process offered in North Carolina, but many legal conditions must be met.
If you are the only surviving beneficiary or heir and the decedent’s surviving spouse, you may be able to file using this process.
The spouse would file a petition with the court, along with the will and supporting documentation. If appropriate, the court clerk enters an order that no further probate proceeding is necessary. Using a certified copy of this order, the surviving spouse collects the property.
Again, this process may seem “simple” to an attorney, but it is certainly not something you should do on your own. Any court filings are complex and, if not done correctly, will be simply returned to be corrected. If your local Raleigh estate planning lawyer analyzes your case and deems that “summary probate” applies, they will professionally file the documents fully and correctly the first time.
How Can I Keep My Assets Out of Probate If It Is To My Advantage?
First, discuss detailed aspects of your financial situation with your Raleigh, Chapel Hill, or Greensboro estate planning lawyer. Based on the facts uncovered, if their advice is that you stay out of the probate courts, then there are ways to do so effectively.
Some examples are”
- Plan your financial assets to transfer to beneficiaries upon your death – Usually, most bank, brokerage, retirement, and life insurance accounts can be transferred in this way.
- Establish joint property ownership with right of survivorship – It usually is wise for married spouses to own real property jointly. Then the “right of survivorship” will keep the property out of probate court.
- Donate or gift property – Commonly, all property you gift before death does not go through probate court. Your lawyer will advise you on any tax consequences that may arise.
- Utilize the small estate laws – If your estate is small enough, North Carolina provides expedited procedures for settling it, usually out of probate.
- Create a revocable living trust – If it makes financial sense, establish a revocable living trust. Assets in the trust commonly escape probate.
I Am Not Sure To Avoid Probate or Not; How Should I Proceed?
Even if the probate laws in North Carolina are designed to be “simplified,” everything depends on your estate and unique situation. More than not, most probate proceedings are exceedingly complicated and detailed and involve many exceptions and deadlines.
So, to ensure it’s done right, consulting with a Raleigh estate planning lawyer is mandatory. Your lawyer’s advice and guidance will be invaluable in deciding the right legal path to take.
You may feel that probate is unnecessary in your case, but you need to know all the pertinent facts. Obtaining the professional guidance of a North Carolina probate lawyer will ensure the probate laws are followed, and your wishes are conducted.