After a loved one dies it can be a very confusing time for friends and family. Not only are you dealing with the emotional heartache that comes with the loss of someone you love, those closest to the deceased end up with multiple responsibilities during this sad and stressful time. Oftentimes families do not know where to begin when it comes to sorting out the legal and financial details that their loved one left behind.
The Doyle Law Offices P.A. want to make every step of the legal process simple and stress-free by providing you with a guide on how to obtain a letter of testamentary in North Carolina. If you’ve been named the executor of a will or are unsure of the steps to take to complete the formal duties of closing out an estate, we have the resources for you.
What is a Letter of Testamentary
A letter of testimony is a document granted from the Probate court to the Executor of the will. This allows the Executor the power and authority to make decisions in handling the estate and other financial affairs of the decedent. To someone without a legal background, particularly during a time of distress, this explanation may be tricky to understand. Let’s go through some of the legal terminology you will need to understand, in more simpler terms, the role of the executor and what power a letter of testamentary gives to them.
Legal Language Used When Getting a Letter of Testamentary
Probate Court - the segment of the judicial system that handles estates, wills, and guardianships.
Decedent - the legal term used for the person who died.
Executor - the legal term used for the person named in the will to carry out the wishes of the decedent after death.
Estate - all of the money, property, and assets owned by the person at the time of death as well as the debts owed by the person at the time of their death.
Will - the legal document specifying how and to whom the decedent’s estate is distributed after death.
Fiduciary - refers to when someone legally and ethically makes decisions on behalf of another person or persons. For example, a lawyer and their client have a fiduciary relationship. In this case, fiduciary refers to the appointment of an Executor who is working in the best interest to carry out the decedent’s wishes.
Beneficiaries - the individuals who have a legal right to the assets of the decedent, as outlined in his or her will.
When presented along with the death certificate and court fees, the Letters of Testamentary enables the Executor to pay off any outstanding taxes or debts owed by the decedent’s estate. Working in a fiduciary manner, the Executor will then comply by the wishes outlined in the will in order initiate the allocation of any assets held by the deceased. These assets are distributed to the beneficiaries as outlined in the will.
North Carolina’s Letter of Testamentary Procedures
To begin the probate process, you’ll first need to be certain you are eligible in the state of North Carolina to be named as the Executor to the Decedent’s estate. If the decedent did not name an Executor to their will, the court will appoint an Administrator. Most Executors are family members of the deceased, such as a parent, spouse, or child, but lawyers can also be named as Executors.
North Carolina law states that to be appointed as an Executor, an individual must:
- Be 18 years of age or older
- Be of sound mind
There are restrictions outlined by the North Carolina Statutes. If you’re unsure if you are eligible to be named an Executor or have been named an Executor and want to decline those duties or discuss options call our estate planning attorney for help.
Applying for a Letter of Testamentary
You know that you are named as Executor to the Decedent’s estate, now you must begin the process of collecting information and filing for a Letter of Testamentary so that you can settle the estate of the deceased.
- Step 1 - Begin the Probate Process: Obtain the certificate of death, a copy of the will if there is one, and any financial papers or information that details the assets belonging to the deceased. These will all be needed in filing the application for a Letter of Testamentary. Send notice to all potential heirs or beneficiaries.
- Step 2 - Fill Out Form AOC-E-201: This is the official application for Letters of Testamentary. You’ll need to know the Decedent’s address to determine which county to file the application with– file in whatever county the person lived at the time of their death. If the Decedent did not live in North Carolina at the time of death, you may file in any county in which they held assets or property.
- Step 3 - Await the Clerk’s Authorization of Form AOC-E-402: The County Clerk’s office will review your application, all of the included documents, and determine the validity of the will. Once the Clerk deems the will legitimate, Form AOC-E-402 is presented to the Executor with the ruling to move forward in a fiduciary manner.
- Step 4 - Receive Letters of Testamentary as Form AOC-E-403: Once signed and filed by the Clerk, the Executor will receive 5 copies of the Letters of testamentary. More copies can be requested once all filing fees are settled.
Once you’ve obtained the Letter of Testamentary, you are free to act on behalf of the Decedent. You are now legally expected and required to:
- Access all of the financial and bank accounts.
- Handle the settlement of real estate properties.
- Pay any outstanding debts that need to be paid.
- File taxes– an important step not to overlook! Not doing this can result in legal action against the estate by the IRS.
- Distribute all assets to the beneficiaries as outlined in the will.
How to Get a Letter of Testamentary Without a Will in Place
In cases where the deceased did not leave a will behind an Executor cannot be named. In these cases, an Administrator is appointed by the probate court to settle the affairs of the estate. An Executor is used to refer to an individual named in a will; an Administrator is an individual appointed by the court. An Administrator handles all the same duties that an Executor would to settle accounts and distribute assets, only no Letters of Testamentary need to be filed. Instead, Letters of Administration are filed by the Administrator as a way to prove their authority to serve.
Instances where an Administrator handles the will rather than an Executor:
- No will was left by the Decedent.
- A will was left behind, but no Executor was named.
- The will was deemed invalid by the court.
- The person named as Executor to the will declines the role.
Administrators are usually next of kin– a spouse, adult-aged child, or parent. The Administrator will perform the same steps outlined to get a Letter of Testamentary, only the filing will be done on Form AOC-E-202, application for Letters of Administration.
Speak to a Wills & Estate Planning Attorney Today
The death of a family member brings forward a lot of emotions. As you are navigating how to process the loss of someone you love, allow The Doyle Law Offices P.A. to make the process of getting a Letter of Testamentary easier for you! Call us today at (919) 228-4487 or fill out the form below.
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