H. Stanley Harris, P.C.
130-A North McDowell Street
Charlotte, NC 28204-2268
Phone: 704-334-5600
Fax: 704-334-1654

WILLS AND DECEDENTS’ ESTATES IN NORTH CAROLINA

Each adult living in North Carolina should have a Will prepared for them to have in place at their inevitable death. A properly executed Will is the best and most efficient way to properly distribute one’s property at the time of his or her death. Without making a Will prior to death, a person’s property will be distributed pursuant to state statute instead of pursuant to one’s wishes. Additionally, the state determines to whom your property is distributed rather than at the direction of the deceased person.

In a properly drafted Will, a person can name his or her proposed executor or executrix, a proposed guardian for his or her minor children, and can also set up a trust for his or her children with the naming of a trustee and by setting out the trust directives that the trustee should follow in the administration of the trust for the minor children. Additionally, a properly executed Will can distribute the decedent’s real and personal property as he or she sees fit without the interference of the state government in that distribution.

Once a person who has a properly executed Will passes away, the deceased person’s Will should be probated at the courthouse in the county in which the decedent resided prior to death. Probate is the process by which a person’s Will is proved to be authentic, and after which will be recognized as the deceased person’s wishes to be followed after his or her death. Once the Will has been proved authentic, an executor or executrix will be appointed by the estate’s division of the Clerk of Superior Court in the county where the Will is probated. The job of the executor or executrix will be to marshal all of the assets of the estate to include all real property owned in the decedent’s name only, all personal property to include bank accounts, brokerage accounts, stocks, bonds, other securities, and all actual property owned by the decedent at the time of death. Additionally, the executor or executrix will advertise for any and all persons or entities having a claim against or owing money to the estate to file those claims and pay those debts to the estate within a specified period of time.

Once the estate assets have been collected and debts have been identified, the executor or executrix will determine the net value of the estate to determine whether any federal estate tax is payable. Generally, a tax professional should be consulted in order to determine that the estate has met all of its estate tax obligations prior to the distribution of any property. The estate will have a unified credit for estate tax purposes which will exempt estates of a certain size from any and all estate tax obligations. In fact, if the deceased dies in 2010, there is no estate tax at all, but that may well change for the tax year 2011 depending on whether Congress acts to change the law which states that the estate tax will resume in 2011 with a unified credit for estates up to one million dollars.

Other than the federal estate tax situation, the estate must pay only a $4.00 per thousand inventory tax to the estate’s clerk during the administration of the estate. The estate must also pay certain expenses to include any fees incurred for advertising, tax form preparation, legal fees if an attorney is retained to assist in the handling of the estate, and any other expenses incurred by the executor or executrix on behalf of the estate during the administration of the estate.

Once the estate has been fully administered, the distributions of all real and personal property can be made by the executor or executrix prior to the closing out of the estate with the approval of the estate’s clerk in the office of the Clerk of Superior Court for the county in which the Will was probated. Said distributions will be at the direction of the decedent in his or her Will. However, if no Will had been effectively executed prior to the death of the decedent, the distribution of the decedent’s property would be pursuant to statute and to the heirs listed in the statutes as the next of kin of the deceased in the percentages set out in those statutes. Therefore, assuming a person wishes for his or her property to be distributed as he or she sees fit after death, that person should immediately have a Will prepared by an attorney in order to insure that the person’s property is distributed as he or she sees fit. Contact H. Stanley Harris, P.C. for proper, efficient, and economical Will preparation and estate administration.