If the Person Doesn’t Have a Will, What Do I Do?
You determine the heirs and distribute the assets of the estate using state law. This is wher it’s helpful to have an attorney. Either an attorney or the Clerk of Superior Court can help you figure out how to distribute the property in the absence of a will.
What if I Don’t Pay Them in Order?
You want to avoid this at all cost because if there aren’t enough assets in the estate, the personal representative is personally liable to the higher priority creditor if a lower priority claim is paid before a higher priority claim.
What Is the Order for Paying off Debts or Claims Against the Estate?
The claims are grouped into classes and then paid in the following order:
1. Years allowances and reasonable estate administration expenses (including a Personal Representative’s commission and attorney’s fees)
2. Claims which are based on a specific lien on the decedent’s property
3. Funeral expenses
4. Costs for gravestone and burial plot
5. Federal income and estate taxes
6. NC income and estate taxes
7. Judgments which place a lien on the decedent’s property
8. Wages which the decedent owed any employees
9. All other claims, including unsecured debt (medical bills, credit card bills, etc).
These pay-outs are governed by the North Carolina General Statutes, so they can be changed; make sure you are always using the most up to date statutes before paying debts.
Why Does the Estate Need an Ein (Employer Identification Number) And What Exactly Is It?
Instead of using the deceased's social security number, the EIN is just a number that serves as the taxpayer identification number for the estate. The estate is an entity separate from you as an individual or from the deceased, as an individual. This EIN is issued by the IRS and is required to file tax returns or open deposit accounts in the estates name. To obtain an EIN go to www.irs.gov.
Is There Anything I Should Be Doing With the Decedent’s Property?
Yes. As the personal representative, you should close the debit and credit cards and open an estate account. You should also change locks on the decedent’s residence, change the decedent’s mailing address and stop newspaper delivery.
If I’m the personal representative, why do I need a deposit account in the name of the decedent?
You need to be able to provide a clear record of transactions regarding the estate to the Clerk of Superior Court. An estate account facilitates this, as it allows you to keep estate funds separate from personal funds. Moreover, a Personal Representative is prohibited from interchanging personal and estate funds.
If you do hire an attorney typically they will ask to hold the Estate Trust account check book and request you deposit estate funds into their trust account for the duration of the estate administration process.
What Is the Difference Between an Executor and an Administrator? Which One Should I Apply For?
In reality, there is not much of a difference. They are both Personal Representatives of the estate and have to act in the estate’s best interest.If there is a will, the Clerk of Superior Court will appoint an “executor” if he or she determines the will is valid. Then the clerk will issue the executor “Letters of Testamentary.” If there is no will or the clerk determines the will is invalid, the Clerk of Superior will appoint an “administrator” The clerk issues “Letters of Administration” to the administrator.
If I Am a Listed Beneficiary, How Do I Claim Property?
You should bring a copy of the death certificate and request payment at the financial institution, custodian or insurance company.
What About Property Held Jointly With Right of Survivorship, Such as Bank Accounts or the Home? Are They Part of the Probate Est
Not usually because even if one of the joint owners dies, the assets will not become part of the probate estate if at least one owner is still alive, but just like assets with named beneficiaries, they may be subject to claims against the estate. Joint bank accounts are listed as part of the estate inventory and often signature cards are required to show joint ownership.
What About Assets That Have Named Beneficiaries? Are They Part of the Probate Estate?
As long as at least one beneficiary survives the last account owner, these assets will not be part of the probate estate, but they may still be susceptible to claims against the estate.
Do I Have To Take the Will to the Clerk of Superior Court?
The answer is yes because only the clerk can determine whether or not a will is valid and only the clerk can appoint a Personal Representative.
Where Can I Get Copies of a Death Certificate?
The easiest place to go is the funeral home. They usually have some copies of the death certificate. If you need additional copies, you can go to the Register of Deeds in the county where the decedent died.
What if I Need To Look For the Will in a Safe Deposit Box?
Sometimes you need to look for the will in a safe deposit box, but unfortunately some times Personal Representatives do not have the key or other access to those boxes. Only co-lessees, deputies, and people authorized by the Clerk of Superior Court can access it so if there is no co-lessee or deputy, additional action will need to be taken to access the box
Do I Need a Lawyer?
Maybe so, maybe not. It depends. Sometimes it’s easier to have an attorney there to enforce difficult decisions that may impact family relationships. Also, there is a significant learning curve in using court forms and completing accounting processes.
If you’ve never done it before, an attorney can be very useful in guiding you through the process as there are many forms and requirements. Finally, the size of the estate can have an impact on your decision to hire a lawyer. The bigger the estate, usually the more likely you are to benefit from a lawyer.
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