When your parents pass away, you may wonder what will happen to their things. Other questions such as: “What will I inherit?” ”What will my siblings inherit?” and “How does the process work?” may go through your mind. Let’s look at what your sibling rights are after your parents’ death.
How Does Probate Work?
When your last living parent dies, their estate generally passes through a court process known as probate unless they’ve made other arrangements, such as:
- An established trust can prevent all assets from going through probate
- If your parent’s estate has a net worth of less than $20,000, it may go through a more straightforward probate process without court appearances. (less than $30,000 for a couple)
In the probate process, the court names an administrator (if there is no will naming an executor).
If your parents named a sibling as executor, you might hope that your sibling does their job as executor correctly. If you see any wrongdoing on their part in the administering of the estate, you may file an estate administration suit against them for damages.
The Process of Estate Administration
This estate’s administrator or executor inventories the estate. In effect, they are responsible for going through everything the parent owned. They then present the inventory list with valuations to the court.
The executor or administrator will put a notice out about probate and give three months for creditors to make claims on the estate. They will then pay any legitimate bills that come into the estate and keep track of its expenses. If the estate is simple, this may only take 4-6 months total. This process can become extensive for a more complex estate and include making investment decisions for portfolios and retirement accounts.
The administrator also files taxes for the year of death. If the estate itself generates more than $600 in annual gross income, they will also file an Income Tax Return for Estates and Trusts.
Being an executor for a will is a long and arduous process, whether the estate is simple or not. The will often allows payment for this job. If the will doesn’t, NC allows payment for the executor of up to 5% of the estate.
At this point, the probate court gives the executor (administrator) of the estate the authority to distribute the assets to the heirs according to the will dictates. Distribution can be very simple or complicated by financial instructions related to trusts and large sums of money.
If a sibling executor or administrator refuses to distribute assets according to the law, you may file an estate administration suit or petition the probate court for actions.
If there is no will, the appointed administrator distributes to heirs according to the dictates of NC Intestate Law. Intestate law is a complex legal code that often does not give assets to who you might imagine. Intestate law is not a will and does not operate according to anyone’s wishes.
What Assets Go Through Estate Administration?
Probate assets are the assets that go through the probate process. Probate assets include almost everything a person owned. The administrator or executor of the estate distributes these assets through estate administration. Probate assets include:
- Cars and Boats
- Bank accounts that don’t have a right of survivorship listed
- Stocks and bonds
“Non-probate assets” don’t go through the probate process. They have a listed beneficiary or co-owner who has survivorship rights. These property or assets pass directly to that heir immediately upon death. Non-probate assets include:
- Real estate held with “right of survivorship,”
- Joint bank accounts with “right of survivorship.”
- Life insurance policies go to the listed beneficiary(ies)
- Retirement accounts go to the listed beneficiary(ies)
- Annuities go to the listed beneficiary(ies)
Land and houses generally are not administered through the probate estate unless the will provides otherwise or the sale of these assets is needed to pay estate debts. After distribution of the assets, the administrator (executor) files a Petition to close the probate.
Sometimes family members will try to walk right in and take what they desire from the estate before the items go through probate. The executor or administrator is responsible for those assets. Administrators and executors are responsible for the correct accounting of an estate. Siblings or others may personally sue them if they illegally remove items from the probate assets.
- Attorneys often represent an estate’s executors and administrators when some or much of an estate is missing or unaccounted for, and there are no answers.
- Family members may also need legal representation as they file lawsuits against an executor or administrator who steals assets from the estate.
- Often, siblings will try to work together to negotiate out-of-court, behind-the-scenes negotiations. If this is the case, another sibling may catch on and file a suit against the fraudulent behavior of other siblings.
Estate Administration Lawsuits
The probate process can become complicated and drawn out. Working with an estate administration litigation attorney is your best bet in complex situations where siblings cannot agree, such as:
- A sibling sues an estate
- Complicated estate, trust, or income tax issues
- Preparing and filing documents for a lawsuit
- Recovering stolen estate property
- Assisting with claims involving intestate succession
- Unclear statements in a last will and testament
- Wills created or modified while the deceased was incompetent or under duress
- Siblings who need to argue against the widow’s rights to property of the deceased person
The Language of the Will
Depending on when and who helped to draw them up, wills may be confusing in their language and even contradictory in legal terms. If beneficiaries disagree with one another about interpretation, a legal battle can erupt. An estate litigation attorney can effectively represent your rights in this challenging situation.
Your rights as a sibling depend on the language of the deceased’s will. If your parent chose to disinherit you, this is not illegal. However, you can sue the estate if you possess proof that your parent was not in their right mind when establishing the will.
Your rights also depend on the executor or administrator of the estate. Sometimes an executor or administrator does not faithfully abide by their duties. Others who are part of the estate may file a lawsuit to remove them from the power they hold on the estate.
Your rights should not change depending on who distributes the estate. The administrator or executor has a legal duty to distribute according to the deceased’s wishes in their will (unless there is no will and they distribute according to intestate law.)
We Can Help
If you find that you need help dealing with the fallout of a sibling’s issues, consider our experienced attorneys at Hopler, Wilms, & Hanna. We fight for your best interests using our extensive knowledge of the estate administrative laws in North Carolina. Our experience covers representation for the executor/ administrator and loved ones fighting for justice against a family member who acts against the estate’s interest. No matter what circumstances, we stand ready to help you find the best path forward. Contact us today and find out how we can help.