Is It Always Necessary to Probate a Will in North Carolina

When a person passes away, they usually leave behind two types of assets: probate assets and non-probate assets.

Probate assets are property held under the deceased person’s name. For example, if the decedent had an individual bank account and had not named a POD/TOD beneficiary, that would be a probate asset.

Non-probate assets are those that transfer to beneficiaries pursuant to contract. One example of a non-probate asset is an insurance policy. If the decedent has names a beneficiary of his insurance policy, the insurance company will release the proceeds of the insurance policy to the beneficiary without probate.

Why is Probate Necessary?

Probate is necessary when a decedent’s estate includes assets titled in the decedent’s name.

The North Carolina General Statutes specifically state that a Will is validated and sufficient to pass title to all real and personal property it purports to transfer after it has been probated.

Merely possessing an unprobated Will does not grant beneficiaries the right to access the decedent’s accounts, or sell their property. The financial institutions where the deceased had accounts and potential buyers of the property will require confirmation of the that the Will is legitimate. Without the assurances provided by probate, beneficiaries will not have the ability to access accounts or engage in property transactions.

How Does it Work?

Probate is the process of validating a Will. It can also sometimes refer to the process of administering a decedent’s estate.

Generally, the executor files an application for probate in the county where the decedent lived at the time of their death. If they didn’t live in North Carolina, the executor can file for probate in any county where the decedent owned property.

The process stats with contacting the county clerk in the appropriate county. Some clerks in North Carolina allow walk-ins, while other’s require an appointment, so it’s always a good idea to call ahead. North Carolina Judicial Branch makes required forms required for initiating probate available on their website, However, because the process can be complex, most people benefit from having a lawyer represent them through the process.

When the Will has been admitted to probate, the Clerk will issue letters testamentary. Letters testamentary are the legal documentation that give the executor the power to act on behalf of the estate. Financial institutions require letters testamentary for assurances that the executor has the legal authority to act on behalf of the estate.

The executor will then be able to gather assets, pay off legally enforceable debt, and distribute the assets as specified in the Will.

Can You Transfer Property Without Probate in North Carolina?

Probate is not necessary for some types of property. For example:

1. Probate is not necessary to collect life insurance proceeds, IRAs, pension plans and retirement accounts that pass directly to designated beneficiaries.
2. Property held in accounts with others as joint tenants with rights of survivorship pass directly to the survivors without probate.
3. Property held in trust will pass under the terms of the trust.

However, decedent dies with property held in his name, probate records become a link in the chain of title that prove the decedent’s property has passed to someone else.