estates and probate
You’ve come to the right place. If you are the executor of an estate, a probate & estate administration attorney can help.
Probate & estate administration attorneys handle succession issues and can help you navigate court processes, payment of the deceased person’s debts, distribution of property according to the will or estate plan, and probate litigation.
Of all legal disputes, those involving family can be the most difficult with which to deal. They are often emotionally charged and may also affect your financial stability, making it important to protect your interests.
At McSpadden Law, we help families across North Carolina with estate and will disputes. Our attorneys understand the sensitive nature of these cases and will take your concerns to heart. We will work closely with you through every stage of your case to seek the best possible result. When you come to our firm, you become a part of our family.
Our areas of practice in the realm of estate disputes include:
- Will Contests: If you wish to challenge a will because you feel that you were unfairly excluded, that your loved one’s wishes are not being carried out as they should, or that your loved one was the victim of abuse or mistreatment by someone he or she trusted, we can help.
- Trust Disputes: When a trust is mishandled, authorized or accessed through manipulation, or affected by lack of capacity, we can consider whether you have grounds for a dispute to make matters right.
- Power of Attorney Abuse: If you believe that someone has abused his or her power of attorney for personal or financial gain, you may be able to hold that person accountable. Power of attorney abuse may adversely affect wills, trusts, and estate planning matters.
- Putting Your Interests First in Your Estate Dispute: When it comes to estate and will disputes, you need an attorney who will put your interests first while preserving your loved one’s last wishes. At McSpadden Law, we represent our clients with servants’ hearts. Meaning that we always put your needs before our own.
When a loved one passes away, his or her estate often goes through a court managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
Every probate estate is unique, but most involve the following steps:
- Filing of a petition with the proper probate court.
- Notice to heirs under the Will or to statutory heirs (if no Will exists).
- Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
- Inventory and appraisal of estate assets by Executor/Administrator.
- Notice to creditors.
- Payment of estate debt to rightful creditors.
- Sale of estate assets.
- Payment of estate taxes, if applicable.
- Final distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the Will?
An objection to a Will, also known as a “Will contest” may occur during the probate proceedings and can be incredibly costly to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example children are to receive extremely unequal shares under the Will, or when the distribution plans change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are what is called “non probate assets” do not go through probate. These include:
- Property in which you own title as “joint tenants with right of survivorship”. Such property automatically passes to the co owners by operation of law and does not go through probate.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies, which also states designated beneficiaries.
- Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
- Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Do I get paid for serving as an Executor?
Executors are reimbursed for all legitimate out of pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which, in North Carolina, depend upon the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.
How much does probate cost? How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.