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New Bern Probate Lawyers

Knowledgeable guidance for parties engaged in the North Carolina probate process

When loved ones die, settling their affairs can be a complex process. If you are unfamiliar with probate law and the probate court, you could face delays in settling the estate, which can result in unnecessary losses to the heirs. Fortunately, Carolina Law Group, led by Tommy Kellis, can help you navigate the probate process so you can avoid oversights and mistakes that may stall the process. If disputes arise, such as creditor claims or challenges to the decedent’s will, we take decisive steps to protect the estate and to resolve conflicts. When you retain our services, you get professional service from experienced probate lawyers, so you can have peace of mind during a difficult time.

What is probate?

Probate is the court-supervised legal process of settling an estate after someone dies. The probate court reviews an inventory of the decedent’s assets and debts together with any testamentary documents, such as wills and trusts. The court decides whether the will is valid and appoints a personal representative, or “executor,” to settle claims against the estate and transfer the remaining assets under the terms of the will. Property held in a trust is not subject to the probate process.

Reasons for probate and exceptions

Probate is necessary to ensure the transfer of property from the decedent to the appropriate heir or beneficiary. Solely owned property goes through probate regardless of whether it is covered in a will. Examples of such property include bank accounts in the decedent’s name only, real estate owned individually or as a tenant in common, financial instruments without a named beneficiary and personal property.

Assets that do not go through the probate process include:

  • Property held in a trust
  • Real estate owned jointly, with a right of survivorship, or as a tenancy by the entirety
  • Life insurance policies and retirement accounts with a designated beneficiary
  • Joint bank accounts, or accounts with a payable on death or transfer on death clause

Property that is exempt from probate transfers automatically to the co-owner or named beneficiary.

Fiduciary duty of personal representatives

Personal representatives or executors of an estate are fiduciaries, which means they must perform their duties competently for the benefit of the estate and its heirs. These duties include:

  • Paying the estate’s debts and taxes
  • Defending the estate against legal claims
  • Identifying all property in the estate
  • Identifying, locating and informing beneficiaries
  • Distributing property according to the will and/or the laws of the state

Fiduciaries who fail in their duties can be personally liable for losses to the estate due to mismanagement or malfeasance. Executors can receive a reasonable stipend for their work. Our attorneys advise executors and even act as personal representatives of decedent’s estates.

Steps in the North Carolina probate process

If there is a will that names an executor, that person can begin the probate process. If that person declines or there is no will, someone who is qualified to act as a personal representative of the estate can serve. The representative should contact the Clerk of Superior Court in the deceased’s county of residence and submit:

  • An application to serve as representative
  • A copy of the will
  • A preliminary inventory of the estate
  • A certified copy of the death certificate
  • The filing fee

If the court approves the application, the representative can begin the work of settling the estate. Anyone who is new to the process should seek counsel from an experienced probate attorney, who can help them avoid potentially costly mistakes.

Talk to our New Bern lawyers about the probate process

The Carolina Law Group helps clients settle their loved one’s estates in the probate courts of New Bern, Morehead City and surrounding areas. Call us today at 252-636-3737 or contact us online to schedule a consultation.

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