North Carolina Estate Procedure Pamphlet
I recently had someone email me and ask if the North Carolina Estate Procedure Pamphlet, published by the North Carolina Administrative Office of the Courts, is accurate. It is generally correct, and provides a good, basic overview of estate administration requirements and procedures in North Carolina. However, it is out-dated, having been published in 2002. In addition, it does not go into depth about how to fully accomplish the many requirements of probate and deal with unusual issues, not to mention the estate and income tax aspects of probate. Furthermore, the Clerks of Court in each of our 100 counties may have different rules and intrepretations of the law. This pamphlet alone certainly does not provide enough guidance for a lay person to properly handle a probate proceeding. Given that executors and administrators can be held personally liable for mishandling an estate, even if not intentional, having an estate attorney on board is always a good idea. It may even save money in the long run, and will certainly save a lot of time and aggravation for the executor.
It is also worth mentioning, section 11 of the North Carolina Estate Procedure Pamphlet says, "Not all attorney's fees may be approved by the clerk and if not allowed, the personal representative will be personally responsible for the attorney's fees."
The author is correct, the pamphlet (having been created prior to the 2006 Rules of Civil Procedure changes) leaves out the importance of preserving and protecting digital devices for the estate, to mention just one of the important points NOT covered in the pamphlet.
My father-in-law who lived in NC, died with under $1,000 in assets and over $50,000 in credit card debt. Although he and his wife kept their finances separate, we have now found that their house, with about $150,000 in equity, was mistakenly titled in both of their names even though the down payment was entirely from her money, the mortgage is in her name, and she made all payments.
Does the house pass to her outside of probate, or is it included in his estate and thus needs to be sold to pay off the credit card debt?
RESPONSE: When a married couple owns real property together in NC, it is normally "tenancy by the entirety" property. Such property immediately belongs to the survivor, and is not part of the estate of the first spouse to die.
If I renounce my right as given in the will to be executor of my brother's estate can we use for AOC-
E-200 and select a Nominee that would have to be approved by the court provided the person is otherwise eligible.
RESPONSE: Nomination is provided for only in an intestate estate (no will).
My husband is a 'joint tenant with right of survivorship' with his mother. Doesn't this just cover the real estate? She has no will. Will we still need to go through probate in respect to her personal property at her death?
RESPONSE: Joint tenancy with right of survivorship is a form of ownership that can also cover bank accounts and securities. I recommend that you consult with an attorney to determine what form of probate, if any, is required.
My father died with $30,000 in credit card debt, and a house with an $80,000 mortgage, and no cash. There are 2 surviving children, me and my brother. The house is worth anywhere from $100,000 to $150,000. As Administrator, I want to sell the house to my brother to keep it in the family. How is the sale price of the house determined in this case? Can I choose to sell to my brother below market value, with my rationale being 1-no sales commission to an agent, 2-no expense to "clean up" property, such as old garage, tool sheds, etc, 3-no concern with home inspection issues, 4-current economic conditions. What are the NC GS requirements for me to follow?
RESPONSE:Since you refer to yourself as Administrator, I assume that your father had no will. You will have to petition the court for authorization to the sell the house. I recommend that you use a lawyer to do so to ensure that it is done quickly and correctly.
My mother and step-father owned numerous properties.When she got sick, he used her POA and took her name off of all the deeds, titles, bank accounts, etc., however he died unexpectedly before her. His will left everything to his children, but since mother was still alive, who gets the property? Mother died 6 months later. His children are trying to use his will to get everything. Is his will valid, since she outlived him?
RESPONSE: Unfortunately, it is impossible to answer your question without more information. Your mother's estate may have a right to contest your step-father's will. I recommend that you consult with an attorney as soon as possible to ensure that any rights you have are protected.
My mother is one of 8 children that have inhereted there mother's home after she past. The home has not yet been sold. My mother would like to sell me her 1/8 share of the home. She would like to take less money than now, rather than waiting for the sell of the home later. My Aunt (my mother's sister) would also like to sell me her 1/8 share. Is this legal? What NC General Statutes would support these sells?
RESPONSE: Yes, your mother and your aunt may sell you their shares of the real estate for whatever price they choose.
My friend died 18 months ago. She left her condo to her son. Her son had her sign 3 loan docs before her death. The condo is the equity. In the meantime, her partner has survivor rights until his death. He is making the loan payments so he can stay in the condo. He makes a deposit to the Estate acct, then the Estate makes the loan payments.
Should the Inventory & Annual/Final Accounting form AOC-E-506 be an Annual or Final filing?
Do I include the Deposits and Loan Payments as receipts and disbursements?
Thank you!
RESPONSE: The way the condo payments is being handled is incorrect. They should not be deposited into the estate account. Estate administration, particularly preparation of the Inventory and Annual/Final Account can be complex, and I strongly recommend that the executor hire an attorney to ensure that things are done correctly.
My mother died in NC without a will. As a resident of California, we have an attorney operating as the Estate Administrator. My mom has no debts; however, she owned a home in NC. Now we are in the middle of the probate process and have an offer on the house. Can I sell it before the probate process is finalized? Will the proceeds of the sale become part of the Estate? How is real estate treated in NC?
RESPONSE: The attorney/administrator should be able to answer all of these questions for you. If that's not possible, a brief consultation with an NC lawyer should provide you with the answers.
ther are five of us children, my fathers will left my two half sisters as executors, according to one of my sisters we have gone through probate, my question is shouldn't all assets be put into a trust until we all agree on who what and where of his estate or can it simply be left in an estate account as far as the money is concerned what needs to take place to protect his property?
RESPONSE: Normally no trust is established for estate assets - they are simply left in the estate until distribution.
Section 7A of the Estate pamphlet states that If real property not willed to the estate is needed to pay claims, it can be brought into the estate.. Does this mean if you estate does not have enough money to pay all the bills you have to bring the house in to the estate?
RESPONSE: Yes.
My uncle is the sole beneficiary and surviving spouse of my aunt's will/estate. All bank accounts are joint ownership, homestead property as jtwros, and each own a vehicle. He obtained Letters of Testamentary to obtain her medical records to see if there was any malpractice; however after careful review with an attorney it has been determined there is no claim. The Clerk's office said we need only file an inventory and affidavit that no civil action will be filed. Is this correct? Also, is her vehicle exempt property to my uncle as spouse or should it be listed on inventory and is the furniture and furnishing his solely? I am a paralegal in Florida and these items are exempt property to the spouse and children and are not subject to creditors. Also, should he publish a Notice to Creditors?
RESPONSE: In terms of closing the estate, you can simply follow the Clerk's instructions. Normally a Notice to Creditors is required. North Carolina does not have exempt property in estates.
my father in law recently passed away in north carolina with no will. he is survived by one son. he owes a truck, van and trailer worth less than $20,000 and owes no bills. one attorney stated that we did not need to go thru probate and another said we did, we are confused as to what we need to do. we live in arkansas and cannot be going abck and forth for probate dates, as my husband drives a truck and we never know when he will be home. what is our options?
RESPONSE: It sounds like an Affidavit for Collection would work - it's a very simple probate process which you can do without the assistance of a lawyer through the county Clerk of Court.