The time period immediately following the loss of a loved one is often filled with heightened emotions and confusion. Understandably, the last thing most people want to think about during this time period are the legal ramifications of the decedent’s death. If, however, the decedent named you as the Executor of the estate in his or her Last Will and Testament, it is imperative that you focus on the probate of the estate left behind by your loved one. In this blog, I discuss the probate basics the attorneys at Clarity Legal Group discuss with our Durham, Raleigh, Cary and Chapel Hill area estate planning clients.
Probate Basics
Some people acquire a lot of assets over their lives and others, not so much. I’m a strong believer that it’s not how much someone has, but how important getting it right for the people they leave behind is that drives planning for what happens when someone passes. Sometimes, when you don’t have a lot, it means even more.
Regardless of the size and value of assets owned by a decedent, whatever you have must be identified and passed down to the new owners according to the legal arrangement which controls that transfer. When that transfer happens under a will, it occurs through the filter of the legal process known as probate. Before probate assets are transferred to your loved ones or others you want to benefit from your estate there are a number of steps an Executor must oversee.
Immediate Steps for the Executor
Just as every person is unique, so is the estate every decedent leaves behind unique, making the probate process different for every estate as well. There are, however, five steps that every Executor should take immediately, including:
- Locate, review, and secure estate planning documents. As to the Will, you will need the signed original document. You cannot expect to submit a copy to probate. If you worked with Clarity Legal Group, we will hold your original Will and your designated Executor will find the Will at our offices. Every copy of the Will we release indicates that the original is on file with us and provides an address and telephone number so the Executor can contract us. Hopefully, we will have already connected with the Executor. Estate Planning Clients of Clarity Legal Group are encouraged to bring family members serving as Executor (or in other fiduciary capacities) by our office to meet our team. We also do an annual Fiduciary School at which we meet a lot of future Executors as we educate those people our clients have included for these crucial roles. If you have not worked with the estate planning attorneys at Clarity Legal Group, the Will might typically be found in the decedents home with other legal documents or financial records, in a safe, or safe deposit box.
- Identify and secure estate assets. Immediately upon learning of the decedent’s death, the Executor of the estate must try to identify and secure as many estate assets as possible. This might entail things such as closing financial accounts, eliminating direct withdrawals or payments set up under financial accounts, changing locks on real property, or physically moving vehicles. A more thorough inventory will be required later. When a Clarity Legal Group client passes, during our initial meeting with the Executor, we will walk them through all of the necessary tasks, emphasizing the initial steps for the Executor to take before the probate is initiated. The threshold question we will look at with the the Executor is whether given what the decedent owned and how it was owned, is there a need for a probate. Frequently, we have planned to avoid probate, and the cost, and frustrations which come with dealing with this court procedure can be avoided.
- Initiate the probate of the estate. As I mentioned above, North Carolina requires an Executor to submit the original of the decedent’s Last Will and Testament to the court. Generally, if you are named as the Executor under the Will you should initiate the probate proceeding within sixty days of death. The statutory of limitations after which the effectiveness of the probate laws may be impaired is two years. The probate must be initiated in the Clerk’s office at the courthouse in the county in which the decedent lived (technically, was domiciled) at the time of death. Along with the Will, and an original of the decedent’s death certificate, the Executor will need to file a few legal documents, which we typically prepare for Clarity Legal Group clients.
- Notify creditors that probate is underway. As Executor, you are obligated to notify creditors of which you are aware of the right and need to make a claim in the against the estate by letter. You will also publish a notice to creditors in a publication of record in the county in which the probate is conducted. We prepare these letters and the notice of publication for Clarity Legal Group clients. Creditors who do not come forward to make a claim on a timely basis are subject to having their claims rejected by the Executor. A big part of the probate process is making sure that the creditors are paid in the correct order and in the proper amounts. In North Carolina, creditors may not charge interest due to an account being “past due” when the obligor is deceased. Of course, if there is a surviving spouse, many debts will be joint and the spouse will continue to pay those obligations.
- Determine the identity of heirs and beneficiaries. Although it may be some time before any of the estate assets are distributed, you will need to communicate with the named beneficiaries and legal heirs of the estate throughout the probate process. Determining who those people or entities are early on in the process can prevent problems down the road.
Obviously, for our clients, almost all Executors retain our services as experienced probate attorneys to ensure that the estate moves through the probate process as efficiently and expediently as possible. We encourage Executors to take their time. Getting the requirements of estate planning right the first time around is a whole lot easier and less expensive than fixing mistakes.
Contact Durham Probate Attorneys
If you have questions or concerns relating to the role of Executor during the probate of an estate, please contact the Durham probate attorneys at Clarity Legal Group by calling us at 919-484-0012 or contact us online.
Mark Costley
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