In the realm of estate planning and inheritance, the role of a personal representative or executor is crucial. The executor, typically named in a person’s will, is responsible for administering the estate and ensuring the deceased’s wishes are fulfilled. However, what happens if the designated executor fails to fulfill their duty and neglects to probate the will? This intriguing scenario brings forth a range of legal implications and potential complications, especially when considering the specific laws of North Carolina.
In this blog, we delve into the implications of a non-probated will, look at the different types of wills a court will probate, and how to avoid probate altogether under North Carolina law. So, join us as we navigate the fascinating landscape of estate administration.
What if the Executor Does Not Probate the Will in North Carolina?
When someone dies, some or all of the deceased person’s property may transfer directly to others because of legal arrangements made by the deceased person before death. (1)
Arrangements that avoid legal trouble when probating a will and a need for probate court include:
- Putting real property and other assets into a trust. In this case, the trustee manages the distribution of assets, and the probate court is irrelevant.
- Naming beneficiaries for bank accounts, life insurance policies, and retirement accounts
- Not owning real property
- Using an affidavit process to settle a small estate (less than $20,000 for an individual or $30,000 for a couple)
However, in most situations, the probate court appoints a personal representative (usually the executor) for the deceased person. Their duty is to collect the deceased person’s assets, pay their valid debts, and distribute their property to the proper persons.
If this does not happen, the property does not legally transfer to others. When an executor does not probate the will, it can also create confusion, delays, and potential disputes among beneficiaries.
Next, let’s look at the different types of wills and how to probate them in a North Carolina court.
Probating a Will: Understanding a Vital Step in Estate Administration
When it comes to estate planning and the orderly distribution of assets after someone’s passing, probating a will stands as a crucial and fundamental step in the process.
But what exactly does it mean to probate a will?
In simple terms, probate refers to the legal validation and recognition of a deceased individual’s will by a court of law. This formal procedure establishes the will’s authenticity and grants authority to the designated executor to carry out the deceased’s final wishes.
Probating a will involves several key elements and serves various important purposes. It ensures that the will is legally binding and authentic, providing a legal framework for the distribution of assets, payment of debts, and resolution of any disputes.
It is during the probate process that the court reviews the document’s validity, ensuring it meets the necessary legal requirements, such as:
- Properly execution
- Witnessed (when necessary for the type of will chosen)
- Testamentary capacity of the will-maker
- Free from coercion or fraud
Probating a will is one essential step in the estate administration process, providing the legal validation necessary to ensure the deceased’s final wishes are honored.
State Probate Laws: Execution and Probate of Wills
Creating a will is a valid will is an essential step in ensuring your assets distribute according to your wishes after you pass away. In North Carolina state law, specific rules and procedures inform the execution and probating of wills.
Who Can Make a Will?
Any person at least 18 years old and of sound mind can make a will in North Carolina. A sound mind means that the person understands what they are doing and comprehends the nature of their property and the consequences of their actions.
What is Testamentary Capacity?
North Carolina law presumes that every individual has the capacity to make a will. To have testamentary capacity, a person must
- Understand who they want to leave their assets to (natural objects of their bounty)
- Know the extent of their property
- Be aware of the consequences of making a will. (Even an insane person can make a valid will, as long as they meet the requirements for testamentary capacity.)
How to Probate a Will
What is an Attested Written Will? How Does the Probate Work?
An attested written will is the most common type of will. To create this will, it must be in writing, signed by the will-maker (testator), and attested (witnessed) by at least two competent witnesses.
Requirements when making an attested written will include the following:
- The will does not need to be dated.
- A testator can sign the will themselves or have someone else sign it on their behalf, in their presence, and at their request.
- A testator doesn’t have to sign the will in front of the witnesses, but they need to acknowledge their signature to the witnesses.
- The witnesses must sign the will in the testator’s presence, but they don’t need to sign it in each other’s presence.
- A testator doesn’t need to see the witnesses signing, but they should have had the opportunity to see it if they wished.
- The witnesses can be anyone competent to be a witness in court proceedings. This includes the executor named in the will and beneficiaries who receive a beneficial interest. However, at least two other disinterested witnesses must not benefit from the will. Otherwise, the witness beneficiary and their spouse may void their claim as heirs by being witnesses.
Depending on the availability of witnesses, there are different methods to probate an attested written will. Requirements for an attested written will require:
- When both witnesses are available, their testimony is enough.
- If only one witness is available, additional requirements must be met, including
- Proof of handwriting of the deceased witness and the testator
- Other circumstances to prove the will’s genuineness and due execution
- If no witnesses are available, the court will need to see proof of the handwriting of at least two of the witnesses
What is a Self-Proved Attested Written Will? How Does the Probate Work?
A will can also be self-proved, meaning the local probate court admits the will without further proof. This can be done at the time of execution or later through acknowledgment by the testator and affidavits of the attesting witnesses.
The probate court does not need additional requirements when a will is self-proved.
North Carolina also recognizes two types of unattested wills: holographic and nuncupative wills. Let’s look at those next.
What is a Holographic Will? How Does the Probate Work?
A holographic will is entirely handwritten by the testator. Requirements for a holographic will include the following:
- The entire will must be in the testator’s own handwriting
- Their signature should either appear at the end of the will or somewhere on the will.
- The holographic will must be found in specific places, such as among the testator’s valuable papers, in a safety deposit box, or in a safe place authorized by the testator.
To probate a holographic will, the court requires the following:
- One witness must testify about the will’s location
- Three witnesses familiar with the testator’s handwriting must testify to the following:
- The will is in the testator’s handwriting
- The testator signed their name themselves
A beneficiary under a holographic will can also serve as a witness without invalidating their interest as an heir to inherit property.
What is a Nuncupative Will? How Does Probate Work?
A nuncupative will is an oral will made by a person in their last sickness or imminent peril of death.
Requirements for this type of will include the following:
- The testator must declare it to be their will in the presence of two competent witnesses
- The two witnesses must both be present at the making of the will
- A nuncupative will can only dispose of personal property, not real property such as homes or land.
- It must be probated within six months of its creation (unless the testator writes the will out within ten days after being made)
The court-mandated probate process involves the following:
- Notifying the spouse or next of kin
- Establishing the terms of the will through witness testimony
- Providing evidence of the testator’s last sickness or imminent peril of death
What is a Codicil?
A codicil is an addition or amendment to a will. It must be executed with the same formalities as a will but doesn’t need to be completed in the same manner. For example, a testator can add a handwritten codicil to an attested written will.
How Does the Probate Court Probate a Will?
The process of probating a will and settling the estate of a deceased person typically involves the following steps:
- File probate documents, including the will, with the appropriate probate court
- Notifying beneficiaries and creditors
- Inventorying the deceased’s assets
- Appraising the estate
- Settling debts and taxes
- Distributing the remaining assets according to the instructions outlined in the will
In North Carolina, specific rules and regulations govern the probate process, and understanding the nuances of the state’s law is crucial for both executors and beneficiaries alike.
Through probate, the court oversees the distribution of estate assets, settles debts and taxes, and safeguards the rights of beneficiaries and creditors. By familiarizing ourselves with the probate process and the specific laws in our jurisdiction, we can navigate this critical phase of estate administration with clarity and confidence.
Moreover, probate serves as a safeguarding mechanism, protecting the rights of beneficiaries and creditors.
By overseeing the process, the court ensures that the deceased’s debts are settled, taxes are paid, and any claims against the deceased’s estate are resolved before the distribution of assets takes place. This orderly approach not only protects the interests of all parties involved but also minimizes the potential for legal disputes and conflicts down the line.
Understanding these basic concepts about executing and probating wills in North Carolina will help you navigate the process more confidently.
Talk with an Experienced Probate Attorney to Learn More
Navigating the intricacies of probate law, especially when faced with an executor failing to probate a will, can feel overwhelming. Protect your rights are protected, and ensure smooth estate administration by seeking guidance from an experienced probate attorney.
A skilled attorney in North Carolina probate law can provide invaluable insights, explain the legal options available, and guide you through the necessary steps to rectify the situation.
Whether you are an executor grappling with the probate process or a concerned beneficiary seeking to enforce your rights, our knowledgeable probate attorneys at Hopler, Wilms, and Hanna can help you make informed decisions and achieve a favorable outcome.
Don’t hesitate to seek legal advice. Reach out to Hopler, Wilms, and Hanna Law Firm to schedule a consultation today. Get in touch to discuss your specific circumstances and gain the peace of mind you deserve.