North Carolina Probate Not Too Bad? Think Again...
They other day a client came in and said that he had heard that probate in North Carolina was a "breeze." Wrong! While probate here is less expensive than in some states, I still counsel my clients to avoid it in most cases. Here are 10 Reasons to Avoid Probate in North Carolina:
- Court fees can exceed $6,000.
- Accountings must be filed reporting every penny coming into and going out of the estate.
- Documentation of bank accounts and expenditures is required.
- A formal inventory of assets is required.
- Attorneys fees generally far exceed fees in similar non-probate estates.
- All filings are in the public record.
- Notices to creditors must be published in the local newspaper.
- Delay due to court rules and busy Clerks' offices.
- Bond may be required if not waived in the Will.
- Stress induced by court deadlines and requirements.
My office handles dozens of probate matters every year, so we have first hand experience with all types of estates. I recommend avoiding probate to save time, money and aggravation. Generally, a Living Trust is the best way to avoid probate, but there are other methods as well. An experienced estate planning attorney to help you make the right decision about handling you estate.
First, a comment----your help has been invasluable to me! Now, a question. My husband passed away last year, I filed taxes jointly for 2007.Do I put half of the refund in his estate account?
ANSWER: Thanks - with a joint return, you are entitled to keep all of the refund.
I have a will from Pennsylvania, but now live in NC. Is the original will still valid?
ANSWER: Perhaps, but I always recommend review by a North Carolina licensed estate planning attorney. You should also consider the North Carolina specific health care power of attorney and living will.
Over the past couple of years I have seved as executor 3 times and have become quite familiar with the process. A friend who has been named executor has asked me to perform his duties for him for compensation because he does not have the time. He has an attormey for legal advice but wants me to handle most of his duties. Is it legal for him to hire me? Can I be paid out of the estate or does he have to pay directly out of his pocket? Thanks.
RESPONSE: There are several potential problems with such an arrangement, including unlicensed practice of law, lack of legal authority to act, and approval of compensation. I would recommend that your friend speak to his attorney about this matter.
My father has a will. I am the Executor of his will. I live out of state. My 3-sons and I are the equal beneficiaries. His wife is deceased. His life's journey is ending. All checking, stocks, savings accounts have been set up with my name included to avoid probate. His real estate remains in his name. Upon his death will the real estate have to go into probate? Is there a process that can transfer the real estate into my name to avoid probate.
RESPONSE: This situation is fraught with problems. I urge you and your father to consult with an estate planning attorney about establishing a proper estate plan for your father.
My Father recently died, he has a will giving myself and two other daughters all remaining tangible personnal property and a gift of residuary estate. The question is the executor is my father's nephew wants to auction all of the property. I have asked for some personnal items such as an old trunk and the family bible, and he tells me that I have to buy it at fair market vaule. By the way he is an auctioneer and it will go through his firm. Is he right, do I have any right to sentimental items or do I only get the money and be happy with that. And by the way how much does the executor recieve in NC. And is it legal for him to do the auctioning or his firm. He has already put the estate in probate. Was this really needed.
RESPONSE: I cannot really address your question without seeing the will. I urge you to contact an attorney who can review the will and advise you.
I am doing this myself without the help of an attorney. The estate is almost closed. total cost to date is around 500 dollars. Probate IS a breeze. Information is available for step by step process on the web. Attorney wanted 5 grand.
RESPONSE: Perhaps probate was a breeze in your particular case, but that is certainly not always true. In virtually all cases I have seen, when probate is handled by a lay person, costly mistakes are made and issues overlooked, particularly with regard to tax matters.
my father passed away last month very suddenly. He according to my stepmother has no will and according her and a few of my aunts and uncles she(my step-mother) gets everything, is that true? I am not sure how or what is supposed to happen next. Do his children have a right to anything? I have tried to research this but am not sure if i am understanding any of it.
RESPONSE: This is a very complex issue that depends on state law and the form of ownership of your father's property at the time of your death. You and your siblings may be entitled to a share of his property. I urge you to consult with a probate attorney as soon as possible.
My father has terminal cancer and only has a few months to live. He did not have health insurance so we are not sure how the medical bills we get paid. The only asset he has is the house (which is doubtful to exceed 25grand in value). His wife and 2 of my brothers live there (in NC). Would it be smart to push off the ownership of the house to someone other than my father? How can we avoid probate as well as other legal troubles?
RESPONSE: There is not a simple answer to your questions, particularly without knowing all of the facts. I urge you to consult with a qualified probate attorney to determine the best course of action
Let me tell you folks something about public administrators, they are the most disgusting attorneys on planet earth. They don't care about you nor your needs. They have no class about how to distribute family heirlooms to the decendents of the dead. They can lose your inheritence in stock, cash, assets that they are to lazy to have appraised. They can and will be partial between siblings. I have no ideal how they sleep at night. This under educated court appointed public admistrator ruined my dead father in laws estate, nothing went as Selby Daniels Sr. desired, his two sons were like vultures sitting on a branch waiting for him to die. Six days afters my mother in law passed the two sons wanted to take him out of his home and place him in nursing care,,SIX days! Also his extensive thirty plus thousand rare and old book collection of civil war and NC history were sold to the greedy two sons for a PALTRY ten thousand dollars. The Public Administrators answer as to why he did this was quote " I am not a book dealer" this book collection was worth in the hundreds of thousands of dollars...Mecklenburg County North Carolina is a slack place to die>>>>>>
RESPONSE: One way to try to avoid having the public administrator handle one's estate is to prepare a will naming an executor and successor executors, or better yet, create and fund a revocable living trust and avoid probate altogether.
My father will soon be diagnosed with incurable cancer and I belive that he will not live out the year. His will names my brother, who lives out of state, as executor. Since I live in NC would it be beneficial to add me to the will as a co-executor? Would I have the same duties and responsibilities as the executor?
RESPONSE: Co-executors are equally responsible for carrying out the duties of administering the estate. I do not think it would be particularly helpful to add you as a co-executor as it would require that both you sign all applicable documents.
my mom recently passed away. she left a will however at that time she was already sick and we do not agree with it. as executor can me and my sisters be the first to be able to purchase her house and land or does it have to go up for auction?
RESPONSE: I can't answer your question because I don't know what the will says. Generally the beneficiaries have to agree on how the house will be sold unless the will requires that the executor sell it. I recommend that you consult an attorney to determine your rights.
My mother in law just passed away. She has a will leaving my father in law anything that was hers. Their home is in both of their names, the cars are in just his name. There are two CD's that are in both of their names and one checking account. He lives in Mecklenburg County. Would my father in law still have to go through probate court?
RESPONSE: If the checking account is joint it doesn't sound like it, although a probate proceeding can be useful for limiting creditor's claims.
What is the time limit for reopening Probate in NC? The executrix opened and closed probate. Five months before her mom's death she had the house transferred to her name (is her's in the will anyway)as well as all savings accounts (she was POA). She has left a $7K nursing home bill unpaid stating to everyone NO ESTATE existed. Also she never informed the beneficiaries of the terms of the will. How does one handle this? What would be an estimate cost for an attorney? We know in April of 2009 she drew thousands and thousands out of savings plus spent all the funds in the checking account.
RESPONSE: I recommend that you consult with an estate attorney as soon as possible. This appears to be complex matter that demands immediate attention.
Just recently the executrix's (two sisters) has had a change of heart and decided to agree with me and 4 other siblings to sell my deceased mother's house, while one brother lives in the house and refuses to sign anything whatsoever. The probate has been filed and closed in North Carolina. The Will granted the executor the power to sell. Therefore, could we reopen the probate and the two exeutrix's (sisters) sign a real estate listing agreement to sell the property? What are the estimated cost for this type of action or should we just file a petition to the court to sale the property. What are the advantages and disadvantages? Which would be in our best interest to get the top dollar value vs auction price? Thank you for your assistance.
RESPONSE: From the information you have provided, it sounds like a proceeding for Sale in lieu of Partition must be filed with the court. Such a proceeding involves several thousand dollars in fees.
My father died two one month ago in North Carolina. My brother is the successor trustee to the now Irrevocable Trust. My brother has two pcs of paper from 2005 and 2006 that I signed and gave to my father for loans of 10,000 and 24,000, respectively. However, my father told me that this was his way to avoid having to pay taxes and never expected me to pay him back. My brother is trying to subtract this from my inheritance. Can he?
RESPONSE: Without written documentation of what your father promised, the answer is yes. You will have to file suit to see if the court will side with you. You should consult an attorney.