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Don’t Have Your Loved One Rolling In Their Grave By Making These 4 Probate Mistakes

POSTED ON: March 10, 2015

Probate is the Court process to settle a person’s estate after their death. The process carries with it several potential problems and risks. Knowledge of such pitfalls can eliminate or reduce the difficulties.

1.  Missing Documents: A Will names an Executor (also known as a “Fiduciary” or “Personal Representative”) to probate the Estate. In order for the executor to serve, he must first be approved by the Clerk of Court by filing an Application along with an Oath of Fiduciary at a minimum. In North Carolina, this application must be accompanied by the original will and death certificate.   If the named executor is willing to serve but lives in another state, an in-state agent must be named, and the executor may be required to post a bond if the Will does not wave that requirement. If not carefully thought out, such requirements can create unneccessary obstacles for the executor.

2.  No Attorney-  no Legal Guidance:  The Clerks are not permitted to instruct Executors regarding legal issues in Probate. Yet, Executors, every executor, regardless of being represented by an attorney, must still comply with timelines and statutory procedures. Executors, can be held liable should they mismanage estate funds, fail to meet deadlines or distribute assets too early.  A Charlotte Probate Attorney will be able to make certain that the law is followed.

3.  Creditor Claims Not Handled Properly:  If a person serving as Executor fails to publish a Notice to Creditors (if required) in the prescribed manner and for the required length of time, claims by Creditors may be submitted long after they otherwise would be barred. Should the personal representative pay bills of the estate in an order that is contrary to the mandated order of priority and there not be enough money to pay each creditor in full, personal liability could result.

4.  Personal Taxes Not Filed before Estate is Closed:  In addition, the personal representative must file the decedent’s tax returns for the year of death.  If taxes are owed and the Estate has been already closed, the Estate will need to be reopened to either receive a refund or to pay the taxes due. At this point, beneficiaries have already spent their inheritance. Virtually impossible to have it returned.

Serving as the Executor of a Will is a privilege that carries a great deal of responsibility. For those who are not comfortable completing this work alone, a qualified Probate Attorney should be retained.  The statutes allow legal fees to be reimbursed (if there are assets in the Estate) to the person that initially paid the retainer to the attorney.

If you need help probating the Estate of a loved one in North Carolina, please Contact attorney Sabrina Winters today at (704) 843-1446  for your free conference call.

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