Estate administration is the legal process of gathering the assets of a deceased person, determining their liabilities, paying creditors, paying fees, taxes and costs and ultimately disbursing the proceeds or property to the heirs either under the terms of their will, or under the North Carolina laws of intestate succession if there was no will. This process is also known as probate. Founding attorney Hank Doyle has 24 years’ experience helping clients with estate administration in Wake County, including Raleigh, Wake Forest, Cary, Apex, Garner, and surrounding areas. Below are some frequently asked questions about estate administration:
My mother just died and we didn’t find a will. Do we have to open an estate?
That will depend on whether she owned any property at the time of her death. If a person dies with few assets, small estate administration can be utilized. This is true whether there was a will or not. If there was no property, perhaps no estate needs to be opened. This threshold question can be confusing. Meeting with an experienced estates attorney is the best way to find out where and how to start.
When a person dies, who is responsible for taking care of things and filing the will, etc.
A properly drafted Last Will and Testament will have someone designated as the Executor. The Executor is responsible for filing the will and opening the estate. This is done by filing an application for “Letters of Testamentary” with the Clerk of Court in the county where the person was living when she died.
Who is responsible to taking care of things when there was no will?
When a person dies without a will, this is an intestate estate and it will be administered under the laws of intestate succession. Generally, the spouse, an adult child or some other responsible adult will apply to the Clerk of Court for “Letters of Administration.”
What are Letters of Testamentary and Letters of Administration?
With a will, the “Letters of Testamentary” are issued by the Clerk of Court to the person who was named as the Executor in the will. This document gives the Executor legal authority to take control of the assets of the deceased. When there is no will, the person who is issued “Letters of Administration” is given the same authority.
What are “probate” assets?
Probate assets are the tangible and intangible personal property solely owned by the deceased at the time of death. Real estate is generally not a probate asset unless the will left the real estate to the estate itself rather than an heir. Probate assets are used to pay the valid debts of the decedent and costs of estate administration. What is left is distributed to heirs.
Who pays for the funeral?
Funeral costs are a legitimate debt of the estate. Typically, the spouse or family will pay the funeral bill and can be reimbursed by the Executor or Administrator after an estate is opened.
Can estate assets be used to pay real property taxes or utilities and maintenance for the residence of the deceased?
No. This is a common misapprehension. At the time of death, real estate passes to the heirs named in the will or the intestate heirs determined by law. These heirs thenceforward own the real estate and are responsible for all costs associated with it. The Clerk will require any Executor or Administrator who uses estate funds for this purpose to personally reimburse the estate. Consulting with an experienced attorney is vital to avoid making a mistake like this.
What if there are more debts than money in the estate?
If there are more debts than assets, the Executor or Administrator will sell personal property first. If there is still a shortfall, real estate can be brought into the estate and sold to create assets to pay these debts.
Does an Executor or Administrator get paid?
Possibly. Some wills will state how the Executor is to be paid, if at all. North Carolina law allows for a commission of up to 5% of receipts and distributions of the estate.
How long will the process of estate administration take?
This is wildly variable depending on complexity. The simplest can possibly be done in 6 to 9 months. Others can take years. Hiring an experienced attorney to handle the process or provide regular guidance is the best way to navigate probate, avoid pitfalls and complete the estate correctly and efficiently.