Sometimes a deceased person’s property transfers to a new owner because of legal arrangements made before death, such as joint ownership with right of survivorship, transfer on death designations, beneficiary designations, or ownership in a revocable trust. However, if a person dies owning property that does not automatically transfer to a new owner, the appropriate court must appoint a person to collect the deceased person’s property, pay debts, and distribute the remaining property to beneficiaries. We often refer to this process as “probate administration.”
This often requires a full administration. However, in some cases, there may be alternatives to a full administration. When a person dies owning very little property, only owns real property, or leaves everything to his or her spouse, the statutes provide expedited procedures. When a formal probate is required, several steps will be necessary.
First the person who is named as Executor in the deceased person’s Will, or, in the case where there is no Will, is qualified to apply to be Administrator must qualify as Executor or Administrator (the “Personal Representative”). The person seeking to be Personal Representative must file an application with the Clerk of Superior Court. If approved, the Clerk will issue Letters Testamentary or Letters of Administration. These are the documents that prove who is in charge of the administration.
The Personal Representative must then collect, inventory, and appraise the deceased person’s assets. The Personal Representative must keep detailed records of all Estate transactions and must strictly follow the rules. Every deposit and transfer must ultimately be approved to the Clerk of Court. Therefore, the Personal Representative must keep proof of the receipts and disbursements. When we represent the estate, our job is to help ensure the Personal Representative comply with these requirements.
We will request the appropriate newspaper publish a Notice to Creditors advertisement. This Notice will be published once per week for four consecutive weeks. The decedent’s creditors, if any, will have three months from the date of the first publication in which to present any claims against the Estate. The Estate cannot be closed prior to the expiration of this three-month period. If the Personal Representative makes inappropriate distributions during this period, and there are insufficient funds to pay creditors, he or she will be personally responsible for any amounts distributed.
Within 90 days after the estate is open, the Personal Representative must file an Inventory that accurately lists the value of the property owned by the decedent as of the date of death. We will assist in compiling the appropriate documentation and preparing the Inventory.
The Personal Representative is entitled to a commission as approved by the Court. In determining commissions, the Clerk of Court will consider the time, responsibility, trouble and skill involved in the management of the Estate. The Clerk will also consider the amounts paid to professionals, such as attorneys and accountants. All commissions must be approved by the Clerk of Court.
If the Estate is open for more than one year, the Personal Representative must file an Annual Account. This accounting will list all receipts and disbursements made from the estate during the one-year period. Canceled checks, receipts or other documents in support of all disbursements must be submitted with the Account.
After all debts and expenses have been paid, any taxes have been paid and approved, and the remaining assets have been distributed to the beneficiaries, the Personal Representative must file a Final Account. The Final Account will list all receipts and disbursements made from the end of the period covered by the last Annual Account until the date when final distribution to the beneficiaries is made. If all is in order, the Clerk of Superior Court will then discharge the Personal Representative from further duties.
