Avoiding Probate in North Carolina

Avoiding probate in North Carolina is a common concern of many individuals when creating estate plans. At Orsbon & Fenninger, LLP, we believe that the most effective estate planning often involves, to the greatest extent possible, bypassing probate and strictly limiting the probate court’s influence over our clients’ assets, accounts, and properties.

Probate court is a process that formalizes the various steps necessary to settle a deceased individual’s estate. Probate is intended to ensure everyone involved is treated fairly and in accordance with the law when a loved one passes away with significant assets in their name, but it can also be time-consuming and expensive. Worse, probate can prevent your heirs from accessing the assets you’ve left them at a time when they may need them most.

Avoiding Probate in Charlotte, NC: Effectively Navigating a Complex Legal Landscape

Some people believe that merely writing a last will and testament to put down their last wishes will protect their estate from the probate process, but this is not the case. Legally sound wills can ensure that intestate succession laws are avoided and that your assets go to the beneficiaries you’ve designated, but they do not prevent your estate from going through probate.

Strategic estate planning can indeed help your family avoid the daunting prospect of probate court upon your passing, but it must be done in an intelligent way that provides comprehensive coverage.

Below are some key alternatives to probate that are available in North Carolina to ensure a smooth and expeditious transfer of a decedent’s remaining assets:

• Living Trusts – Setting up a living trust is often one of the most effective shields to place between your assets and the probate court. With this highly effective strategy, assets are placed into a trust with specific conditions that allow your named heirs and beneficiaries to access funds.
  
  A living trust takes effect immediately, meaning those entrusted assets are now legally held by the trust rather than personally owned by you, keeping them out of the probate court’s purview.

• Jointly Held Accounts and Titles – One of the simplest and most direct ways to transition assets upon your passing is to officially name your heirs to your accounts and properties during your lifetime, thereby leveraging a legal principle called joint tenancy.

  A common example would be to fund a savings account that is jointly held by you and your spouse. Such assets and accounts transfer automatically to the surviving owner, with no input or approval from the probate court necessary.

• Summary Administration – Many states, including North Carolina, offer a simplified, streamlined version of the probate process for smaller estates. By using the small estate summary administration process, modest estates can often be resolved in a fraction of the time of probate cases.

The current threshold for an estate to be considered eligible for this process in North Carolina is $20,000, or up to $30,000 if the sole heir involved is the decedent’s surviving spouse. Advanced tactics like placing assets in a trust or pre-naming beneficiaries to high-value life insurance policies can help you keep the total value of your estate under this threshold, and the probate law team at Orsbon & Fenninger, LLP, can help you do so.

Depending on the nature of your estate and your particular circumstances and goals, other tools and strategies for avoiding the probate process or reducing its influence may also be available. If you are located in North Carolina and would like to begin exploring these options, please contact Orsbon & Fenninger, LLP, at your earliest convenience. With intelligent, collaborative strategizing, we can protect your assets and your family far into the future.

The NC Probate Process in Summary: Understanding the Essentials

Every case looks different, from traffic court proceedings to high-profile criminal trials, and probate court is no exception. If you find yourself involved in the probate process, you should work closely with your legal counsel to effectively respond to the specific circumstances of your case. That being said, every probate case is overseen by a rigid legal framework and will have similarities. A probate case will generally follow the steps below:

1. Initiating the Probate Case: The executor named in the will must file the necessary paperwork to open estate proceedings within 60 days of the estate holder’s passing. If no will has been left, or no executor has been properly named, any other “interested party,” such as a spouse or child, may step in to open the case and commence the process. In such cases, the court will have to name an administrator to fulfill the executor’s role and will usually begin looking for candidates among the decedent’s close relatives.
2. Creditor Notification: The executor named in the will (or the court-appointed administrator) has a legal obligation to notify all of the estate’s creditors. In North Carolina, this must be done within 75 days of the executor being officially appointed to their role. Stringent compliance with such requirements is key to avoiding unnecessary delays and complications.

3. Inventory and Evaluation: One of the executor’s or administrator’s primary responsibilities is completing a full inventory of the estate, which is composed of the decedent’s assets and debts alike. Remember that any assets that have been placed in a trust as part of a smart estate planning strategy or that have automatically passed to a surviving joint account holder will not be counted toward the estate value.

   Although the preliminary steps of this work will necessarily begin before creditors are notified (step two above), this can be considered the third step since the administrator is given a longer window of three months in which to complete this work.

   Extensions can also be granted for unusual circumstances or particularly complex assets, and the administrator is free to enlist the help of lawyers and financial advisors to ensure all of this is done accurately and in accordance with the law.

4. Small Estates: If the estate is evaluated to be worth less than $20,000 in total (or $30,000 with a sole heir being a surviving spouse), it becomes eligible for a streamlined path through the probate process. This process is known as summary administration.
5. Caveat Filing: Parties who have an interest in the estate have the right to attempt to contest a will by filing a type of legal complaint called a caveat. A caveat is a formal request for the probate judge to halt proceedings until a party with a relevant connection to the case has had an opportunity to have their concerns heard. This will not necessarily change the outcome of probate proceedings, but it can, unfortunately, delay them.
   
   Irrelevant or unsupported caveat filings can be a major inconvenience to legitimate heirs who are waiting for access to their funds, but this is an important part of the probate process that offers a layer of protection in contentious family situations. It allows potential heirs to present their evidence and potentially avoid being wrongly cut out of an inheritance in cases when fraud or deception has been perpetrated by other parties.

6. Settling the Estate: When any conflicts or concerns have been addressed to the judge’s satisfaction, the estate can be settled. This typically means first liquidating some of the estate’s assets to pay off outstanding debts. Whatever remains then passes to the qualifying heirs, either per the terms of the decedent’s will or per the guidance provided by state law if no will exists.

The intestate succession laws in North Carolina will first split up most types of assets between the decedent’s surviving spouse and children. If the decedent has neither, the assets will be passed to their parents instead. If there is also no surviving parent, the estate will be passed to siblings, with grandparents next in the line of succession, and then aunts and uncles, first cousins, and so on.

Although this is a final step, it can be another cause for probate delays in some cases while the court struggles to identify legal heirs for intestate estates (estates without a valid will).

Orsbon & Fenninger, LLP: Your Trusted Probate Professionals

If you’re involved in a probate court case and are worried about what comes next, we can help. Whether you’d like to serve as the administrator of a departed loved one’s estate, contest estate planning documents that you believe to be fraudulent or invalid, or have a trusted and experienced probate lawyer to unseal and read your loved one’s last will and testament, Orsbon & Fenninger, LLP, combines high-end legal tools with a personalized touch to help lead your probate challenges to a fair and successful resolution.

If you’d like to set up an estate plan that allows your estate to bypass probate, we can help you establish trusts or jointly held accounts in order to do so.

With decades of positive estate planning results, you can rest assured that your probate and estate planning issues are in capable hands when you trust the probate attorneys at Orsbon & Fenninger, LLP. Contact our main Charlotte, NC, offices today to set up a no-pressure consultation with a member of our knowledgeable and compassionate staff.