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How Does Probate Work?

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Probate is a legal, public process of settling a decedent’s estate. In North Carolina, the administration of a decedent’s estate is administered by the clerk of superior court. The clerk of superior court reviews Wills, determines the validity of the Will, and ensures that the terms of the Will are carried out properly by the personal representative of the estate. Estates that have a Will are known as testate estates, and an executor is often nominated in the Will and then appointed as the personal representative by the clerk of superior court. Estates that have no Will, known as intestate estates, must also go through the probate process and the decedent’s assets are distributed according to the laws of North Carolina. For an intestate estate, the clerk of superior court will appoint a personal representative, known as an administrator. Probate takes place in the county the decedent resided.

What passes through probate?

Items that must be probated include all real and personal property that passes by Will for a testate estate, and all real and personal property that would pass by intestate succession if you do not have a Will. Property that would be subject to probate with or without a Will would include assets owned individually with no beneficiary designations, as well as property owned as tenants in common. Any item that you leave specifically to your estate (i.e., a retirement account with beneficiary as “my estate”) would also be included in probate.

What items are excluded from probate?

Any item that has a beneficiary designation or is held jointly with right of survivorship would be excluded from probate, as long as the beneficiary is not the decedent’s estate. These items are called Will Substitutes because the items pass outside of the Will. These items would include, but are not limited to:

  • Accounts owned jointly with right of survivorship
  • Payable on Death Accounts
  • Transfer on Death Accounts
  • Retirement, pension, and Individual Retirement Accounts (IRAs)
  • Life insurance policies
  • Joint and Survivor Annuities
  • Revocable Living Trusts

All of these items would pass directly to the designated beneficiary upon the death of the decedent. Failing to leave a beneficiary designation on the above listed items would result in the estate becoming the beneficiary and therefore subject to probate.