Probate

North Carolina Small Estates Administration

Posted on: May 19th, 2017
Executors may discover throughout the course of estate administration that the value of the estate falls within North Carolina’s statutory threshold for small estates. For qualifying estates, the law provides a means for heirs to receive the decedent’s property with minimal or no probate administration....

First Forms for North Carolina Executors

Posted on: May 12th, 2017
Certain forms must be filed before an individual may begin serving as executor or administrator of an estate in North Carolina. If the individual is ready to move forward, the first forms they should review include the following....

Factors That Affect Length of Probate

Posted on: May 11th, 2017
The duration of a North Carolina probate administration depends on a variety of factors. Understanding common causes of probate delays can help executors and other parties involved in the estate administration to prevent unnecessary interruptions. ...

Important North Carolina Probate Forms

Posted on: May 9th, 2017
Executors must maintain records of accounting and other required documentation as part of their administrative duties. Customarily, the following probate forms are used for North Carolina estates (links provided to official documents where available)...

Managing Estate Assets

Posted on: May 8th, 2017
Executors must preserve estate assets until distribution. Overseeing estate assets could be a burden for executors, particularly if the decedent bequeathed out-of-state property or unique assets. ...

Dealing With Creditors in NC Probate

Posted on: May 5th, 2017
Personal representatives and executors follow a state-mandated timeline for creditor notifications. When it comes to managing debts, including through approval or rejection of creditor claims, the executor’s duties become more complicated....

Estate Issues With DIY Deeds

Posted on: May 4th, 2017
Oftentimes individuals and couples attempt to minimize estate planning costs by downloading do-it-yourself wills and property deed templates. DIY estate planning notoriously causes costly, time-demanding administrative burdens on executors and does not guarantee the decedent’s wishes will be carried out. ...

3 Reasons Why an Executor May Resign

Posted on: April 12th, 2017
Occasionally an executor must resign from their role. In North Carolina, the executor must file a formal petition with the clerk of court stating the reason(s) for resignation....

5 Considerations for Rental Property in Probate

Posted on: April 6th, 2017
Whether it’s a single property or multiple homes, rental property in probate poses a few concerns. Discussed below are five issues that must be addressed if a decedent owned rental property....

Out-of-State Property in North Carolina Probate

Posted on: January 24th, 2017
The executor must inventory and evaluate all personal property, vehicles, and assets that pass through probate. However, if the decedent held property outside of North Carolina, those assets must follow the laws present in the alternate jurisdiction....

3 Errors North Carolina Executors Might Encounter Without Legal Counsel

Posted on: November 21st, 2016
When it comes to legal matters, it’s not in the executor’s best interest nor the best interest of the estate or its beneficiaries to rely on a DIY effort. The most important issue executors should understand is that executors are held personally responsible for probate errors and mistakes, regardless if the blunder was unintentional....

Penalties for Executors Due to Attorney Fault

Posted on: November 16th, 2016
A recent court ruling serves as a reminder of the personal financial liability executors may face even when they retain a probate attorney. Executors may be held legally responsible for errors in estate administration - even an attorney's errors....

Steps to Take After a Spouse’s Death in North Carolina

Posted on: November 14th, 2016
A surviving spouse is often required to provide immediate attention to matters related to probate (much of which might be unfamiliar to them) even as they process and adjust to their loss and grief. ...

NC Marriage Ruled Valid Despite Lack of Marriage License: How This Affects Estates

Posted on: September 30th, 2016
North Carolina courts denied a wife’s claim to her spousal share since no marriage license existed. However, the wife filed an appeal, and the appellate court judge ruled that the absence of a marriage license does not invalidate a marriage, thus allowing the wife to claim a spousal share....

Overview of North Carolina’s Digital Assets Act

Posted on: September 23rd, 2016
North Carolina Governor Pat McCrory signed a bill into law over the summer of 2016 that allows digital account holders to provide a fiduciary with authority to manage their digital assets. The Act modifies various provisions of North Carolina statutes to conform to the new law, including the North Carolina power of attorney form....

What Executors Should Know About Digital Assets in North Carolina Probate

Posted on: September 22nd, 2016
In late June 2016, the North Carolina governor signed Senate Bill 805, Revised Uniform Fiduciary Access to Digital Assets Act, into law. The Act provides that trustees, executors, agents under powers of attorney, and other fiduciary parties in North Carolina may be granted authorities over electronic records and communications of another user. ...

Creditor Notification Requirements for Executors in NC

Posted on: August 9th, 2016
Creditor notification is a mandatory part of probate in every state, but the process varies in each jurisdiction. In North Carolina, executors must follow several statutes in regards to the timing, distribution and placement, and transmission of notices to creditors....

Problems With Digital Assets in NC Probate

Posted on: July 20th, 2016
Online accounts and digital assets are a growing concern in estate administration. Depending on the decedent’s personal or professional interests, they could have substantial assets left in a virtual limbo. In addition to financially valuable digital accounts (like frequent flyer miles, Google Wallet, and PayPal balances), the decedent might have maintained photo storage accounts with sentimental images of life events....

Why an Executor Might Need Probate Counsel in North Carolina

Posted on: June 6th, 2016
An executor's knowledge of state and federal legislation pertaining to estate administration might be limited. This limited knowledge poses a risk of errors. ...

Refusing to Serve as Executor in North Carolina

Posted on: February 17th, 2016
Many people might feel proud to be selected to serve as executor of a loved one’s estate. However, sometimes the person appointed as executor has no interest in fulfilling their duties....

‘Living Probate’ Now Possible in NC

Posted on: September 24th, 2015
Recent amendments to North Carolina’s Uniform Trust Code now provide for ‘living probate’ – a way for individuals to petition a court to declare a will valid while the testator is alive. This could help prevent will contests after the testator dies....

Changes to North Carolina Trust Code Affect Estate Planning

Posted on: September 22nd, 2015
In August 2015, the Act to Amend the Law Governing Estate Planning and Fiduciaries (Senate Bill 336) was enacted to modify North Carolina’s Uniform Trust Code. The Act sets forth new provisions regarding trustee duties and liability, trust decanting, guardianship, and living probate....

Timeshares in Estate Planning

Posted on: December 19th, 2014
Many of the clients our estate planning attorneys in Chapel Hill serve own property in multiple states, and some of the properties are timeshares. Timeshares are generally considered real property, with a deed as evidence of ownership. ...

Chatham County, NC Estate Administration Changes

Posted on: July 15th, 2014
The Chatham County Clerk of Superior Court recently released updates to estate administration rules. We provide a link to the official changes to Estate Administration – General Rules Practices 2014. ...

Locate a Will: Access a Safe-Deposit Box in North Carolina

Posted on: December 11th, 2013
In addition to in-home fireproof safes, a common place for families to store important documents is a safe-deposit box at their bank. A Will, titles to real property and vehicles, life insurance policy information, trust paperwork, and other critical documents may be inside....

First Steps for Executors in North Carolina

Posted on: December 10th, 2013
In most cases of estate administration in North Carolina, an executor is aware of their appointment before the decedent passes away. Occasionally, an individual only learns they are the executor of an estate after a close friend or family member dies. ...

Why You Should Update Your Beneficiaries

Posted on: April 24th, 2013
Neglecting to update beneficiaries, or failing to name them, may leave life insurance and retirement accounts to unintended recipients, create probate expenses, and cause tax problems. ...

Executors Held Personally Liable for Unpaid Taxes

Posted on: March 23rd, 2012
In a recent federal District Court case, the co-executors of a decedent’s estate were held to be personally liable for the decedents unpaid income taxes under the federal priority statute because they distributed assets of the estate,...

Tax Related Duties of an Executor

Posted on: February 1st, 2012
I just came across this article, Closing Down the Estate, on SmartMoney.com. It gives a good overview of what an executor is responsible for from a tax perspective, but is by no means exhaustive. Since Executors can be personally liable for certain tax penalties, they should make sure to engage an experienced tax attorney or CPA to ensure that everything is done timely and correctly. ...

New NC Estates Court Costs in 2012

Posted on: January 3rd, 2012
Effective January 1, 2012, North Carolina has added a couple of new court costs in estate matters:...

Estate Planning and Probate Seminar for Paralegals

Posted on: December 5th, 2011
North Carolina legal assistants working with estate lawyers may be interested in a day-long seminar, Estate Planning and Probate Practice for Paralegals, to be held in Chapel Hill on January 25, 2012. I will be presenting the portion on Assisting with Guardianships....

New NC Trusts and Estates Laws

Posted on: August 12th, 2011
In the 2011-2012 Session, the North Carolina General Assembly passed several laws affecting estate planning, trusts and probate: S.L. 2011-5 and S.L. 330- The reference to the Internal Revenue Code in G.S. 105-228.90(b)(1b) is changed from May 1, 2010 to January 1, 2011. ...

Filing Fees for NC Estates Increase

Posted on: July 6th, 2011
Effective July 1, 2011, the fee to open an estate proceeding in North Carolina is now $120. This includes Trusts under Wills and Affidavits for Collection of Personal Property. Special Proceedings are also now $120. Click here for the Estates Court Costs Chart. ...

IRS Issues Interim Guidance on Fiduciary Fee Treatment re 2% Floor

Posted on: May 15th, 2011
The IRS has issued interim guidance on the treatment under Code Section 67 of investment advisory costs and other expenses subject to the 2-percent floor under Section 67(a). Notice 2011-37....

2010 Executors – Are You Ready to Allocate that Basis?

Posted on: November 2nd, 2010
Today I was alerted to the existence of a draft of the IRS from that will be required to be filed for estates of decedents dying in 2010 with estates in excess of $1.3 million. IRS Form 8939 – Allocation of Increase in Basis for Property Received from a Decedent. The due date is April 15, 2011....

New Online Service Helps Executors Locate Financial Information

Posted on: September 18th, 2010
One of the most challenging things for many executors is trying to locate and organize the decedent’s financial information, such as insurance policies, and bank and investment statements....

IRS Guidance for Executors of 2010 Estates

Posted on: September 8th, 2010
Given the new basis reporting requirement for the estate of decedents dying in 2010, these new FAQ from the IRS are welcome and contain very important details, including (emphasis added):...

Medicare Claim Matter in Probate Estate Removed to Federal Court

Posted on: August 13th, 2010
Probate and Estate Administration Matters Are Generally Handled in the State Courts – But Not Always, As One NC Executor Recently Found Out...

NC Probate Filing Fees Increase

Posted on: July 2nd, 2010
Effective July 1, 2010, the fee for opening a probate proceeding in North Carolina increased by $1.00 to $89.00. While one dollar is not much of an increase, it is representative of the trend over the last few years to raise court costs. It will only get worse, making living trusts to avoid probate that much more attractive....

Income Taxation of Estates – a Brief Overview

Posted on: January 30th, 2010
In North Carolina it is not uncommon for persons to handle administration of a decedent’s estate without hiring a lawyer or an accountant. ...

NC Revises Spousal Elective Share Law

Posted on: November 13th, 2009
The Elective Share is the value of property a surviving spouse is entitled to get from a deceased spouse. In the absence of a valid prenuptial or postnuptial agreement waiving such rights, when the deceased spouse leaves less than the elective share amount to the survivor, he or she can enforce the elective share....

Often Overlooked in Estates – Cost Segregation Tax Savings

Posted on: September 6th, 2009
This is a complicated but potentially very worthwhile strategies to pursue in estate in which the decedent owned valuable depreciable real estate (e.g. office buildings, shopping centers, or multiple rental homes)....

NC Probate Fees Go Up Again

Posted on: September 1st, 2009
Effective today, along with 1% increase the sales tax, the filing fee for probate cases has increased to $88 (from $61). The .40/100 fee applied to estate assets (maximum of $6,000) does not increase this year – but watch for future increases as the state continues to struggle to increase revenues. ...

NC adopts law for Notice to Creditors when no probate required

Posted on: August 29th, 2009
While I generally counsel my clients to avoid probate by the use of living trusts or other methods, one useful aspect of probate is the provision for publishing a Notice to Creditors. Publishing such a notice in the paper and otherwise following the law allows a decedent’s creditors’ claims to be extinguished after about three months....

Spousal Year’s Allowance to Increase to $20,000

Posted on: July 18th, 2009
The "Years Allowance" for spouses is intended to provide support for a surviving spouse during the year after the death of the deceased spouse, and has priority over creditors claims and other beneficiaries. ...

Small Estate Amount to Increase by $10,000

Posted on: July 16th, 2009
Effective October 1, 2009 the threshold for small estate proceedings (often called Affidavit for/of Collection) under North Carolina General Statutes Section 28A-25-1 will increase to $20,000 for estates where there is no surviving spouse or he or she is not the sole heir, and $30,000 where the surviving spouse is the sole heir....

NC Changes Renunciation Laws

Posted on: June 12th, 2009
On June 1, 2009, Governor Perdue signed into law Session Law 2009-48, which, effective October 1, 2009, institutes substantial changes to to statutes dealing with renunciation of interests in property. ...

Another Reason to Avoid Probate in NC

Posted on: April 1st, 2009
The North Carolina Legislature is considering cuts of up to 24% in salaries of judicial system employees, which include Clerks of Court and their staff. ...

Attorney Sam Cooper Appointed as Chatham County Clerk

Posted on: January 29th, 2009
Janice Oldham, who has served as Chatham County’s Clerk of Superior Court for more than 30 years, is retiring at the end of this month. ...

Have an Interesting Story Involving a Will and Want to Share it?

Posted on: January 21st, 2009
I recently received the following email, and then had a phone conversation with its author. This is a legitimate documentary, with filming to take place in Montreal over the course of the year. All expenses for the trip to Montreal will be paid. ...

North Carolina Estate Procedure Pamphlet

Posted on: January 21st, 2009
I recently had someone email me and ask if the North Carolina Estate Procedure Pamphlet, published by the North Carolina Administrative Office of the Courts, is accurate....

I Inherited a House – Do I have to Refinance the Mortgage?

Posted on: January 13th, 2009
No – in most cases. Mortgages generally contain "Due on Sale" clauses, which say that the lender can call the mortgage due upon transfer of property. ...

How to Choose an Executor

Posted on: September 19th, 2008
This article is from one of our recent newsletters. Although it refers only to executors, most of the considerations also apply to trustees. ...

Chatham County Clerk Now Requires Approval of Attorneys Fees in Probate

Posted on: August 20th, 2008
When I started practicing 20 years ago, Clerks of Court generally required approval of attorneys fees paid in probate proceedings. ...

Summary Judgment Improper in Contract Case where Undue Influence and Lack of Consideration Alleged

Posted on: June 12th, 2008
Bruce and Kathryn Barbee, an elderly North Carolina couple, owned a $450,000 vacation home. ...

Factors for Determining Undue Influence

Posted on: February 20th, 2008
The North Carolina Court of Appeals’ recent decision in In re Will of John A. Jones, Jr. deals with a Caveat against a Will in favor of the decedent’s wife filed by the executor of the prior Will, ...

Increased Court Fees for Testamentary Trusts

Posted on: November 3rd, 2007
Another increase in North Carolina court fees: As of August 1, 2007, testamentary trusts (those contained in a Will) which account to the clerk are subject a fee of 40 cents per $100 of receipts. ...

Records and Documents Required by Survivors

Posted on: August 31st, 2007
Earlier this week a couple of clients contacted me asking if I had a form called and "Essential Document Locator." ...

North Carolina Court Fees Increase August 1, 2007

Posted on: July 31st, 2007
NC will increase some court fees, including certain estate fees, effective August 1, 2007. The filing fee for estates goes up to $60 (from $50). ...

IRS Rules IRA Rollover Okay Even Though Taxpayer Was Deceased

Posted on: May 28th, 2007
IRS regulations allow an owner of an IRA to withdraw it for purposes of transferring it to another institution provided that the funds are placed in the new institution within 60 days. ...

Dale Earnhardt, Jr. – a Victim of his Dad’s Failure to Plan?

Posted on: May 11th, 2007
Yesterday Dale Earnhardt, Jr. announced that he is leaving what was his father’s company, Dale Earnhardt, Inc. (DEI), to hopefully drive for another, more competitive company. ...

How to Avoid Probate

Posted on: May 7th, 2007
What is Probate? Probate is the court process for settling the estate of a deceased person. The executor named in a Will, ...

Supreme Court Refuses to Hear Blackwater Suit

Posted on: March 1st, 2007
On February 26, 2007, the United States Supreme Court declined to hear the wrongful death case against the North Carolina private security firm Blackwater Security Consulting, LLC filed by the estates of four of its employees killed in Iraq in 2004. ...

When Your Parents Die Broke

Posted on: October 23rd, 2006
Legally, you’re probably not on the hook for their debts. But anything they owned could be. Here’s what you need to pay, in what order....

North Carolina Intestacy Calculator

Posted on: May 31st, 2006
​"Intestacy" refers to how a person’s property is distributed if he or she dies without a will. Pennsylvania attorney Kurt Nilson has created a web-based calculator for determine how an intestate estate will be distributed under North Carolina law....