What is Probate Law?
After a person dies, ownership (the legal title) of his or her property, assets and personal effects must be passed on (legally transferred) to the beneficiaries (heirs) listed in the Will. If there is no will the persons receiving assets are designated by State law. “Probate” is the legal name given to this process. Kellogg and Evans Attorneys at Law specialize in wills and estate planning.
A Legal Will
The first step in probate is to verify the validity of the will and final dispositive statement of the decedent (the official record of the deceased person’s final wishes). The Will generally names the person or institution appointed to administer (manage) the probate estate process, estate administration.
When there is no valid Will, State law governs who receives the assets of the deceased. The term “probate” is also used in the larger sense of “probating the estate”.
For help with your will on the Outer Banks or throughout North Carolina, please refer to our Estate Planning Attorneys page.
How Long Until Heirs Receive their Distribution?
The probate process and distribution to the heirs can be as short as 6 months and as long as two to four years depending upon the State laws regarding creditors claims, whether there is property to be sold, whether there are tax liabilities, whether there are disputes among heirs, and congestion in the State courts.
The executor named in the Will is in charge of this process, and probate provides an orderly method for administration of the estate. If there is no Will, a personal representative or administrator is appointed by the probate court to oversee the process. In some cases the executor is also called the personal representative even if there is a Will.
The executor is accountable to the beneficiaries and must perform their administrative duties in a fair and legal manner; (If any doubts exist as to the competency of a chosen executor, the probate court may step in and supervise the executor’s performance). The executor is entitled to a reasonable fee or “commission” for these services.
Probate law generally permits and encourages or provides for partial distribution prior to the final distribution and closing of the estate. During the period of administration; some property and assets (or cash) may be distributed rather than sold during this time. Inheritance tax laws often place the executor or personal representative in charge of filing and making tax payments. Thus, the choice of an executor is an important one.
The job of estate administration and accounting must be done regardless of whether an estate goes through the probate process or probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (including revocable Living Trusts) in states where the probate process was perceived as being too slow and too costly. Many U.S. States have adopted the Uniform Probate Code or simplified their probate processes over the years. In such states there is now less reason to employ such probate avoidance techniques.