What is an Estate in Probate?

probate estate

An estate in probate (or “probate estate“, an alternative term used in a number of U.S. states) is defined as “all the assets a person owns at his or her death that are subject to probate administration.” 

When a person dies, their last will and testament, or will, typically dictates how their assets are divided up. Probate is the legal process ensuring that their wishes are carried out in accordance with that will. However, in cases where no will exists, probate is administered by a court-appointed administrator, who ensures that all aspects of the process are taken care of.

The Probate Process

First, the last will and testament, if it exists, needs to be authenticated. Whoever is in possession of the will must file it with the probate court as soon as reasonably possible. Typically at the same time, a petition or application is filed to open probate of the deceased’s estate and the named person will apply to be named the executor.  The first thing that NC clerks are going to check is the validity of the will by a physical inspection of the staples, the pages, and the signatures for compliance with North Carolina law.

At this time, the probate judge will confirm that the will is valid and assign whoever is specified in the will as the executor. Often the next of kin will be appointed. However, if there is no will, the judge will assign an executor (but called an “administrator”) to administer the process.

The executor or administrator may need to post a bond in order to act for the estate, though some will include a condition that precludes this. This bond is essentially an insurance policy in case the executor or administrator makes some mistake that causes financial damage to the estate, providing a means of reimbursing the probate estate.

The executor or administrator will locate and assume possession of all the assets belonging to the decedent. This is done to protect the assets during the entire process of probate. This includes physically taking possession of certain valuables (vehicles, collectibles, etc.), or, in the case of property, ensuring mortgage taxes, insurance, and other payments are made.

The executor or administrator will get an appraisal for the decedent’s assets, thereby determining a “date of death value” for the estate.

All of the decedent’s creditors must be notified during this process, and the executor or administrator must pay off all the decedent’s debts from the estate. The final personal income tax returns are also filed for the decedent, and all taxes are paid from the estate funds.

Once all that has been done, the estate can be distributed according to the terms laid out in the last will and testament, or as required under state law by the court-appointed administrator.

In cases of “intestate estates,” an estate without a valid will (either one not written up or one deemed invalid by the probate judge), state law may determine, in absence of a will, where the decedent’s estate is passed via the “intestacy statutes”, which in North Carolina is NCGS Chapter 29.

Need help with a Probate Estate?

The probate process is long and complicated, with countless man-hours involved to file all the paperwork, attend any needed hearings in probate court, and compile all the assets–and that’s before the distribution of the estate as dictated in the will!

Instead of trying to muddle your way through the process, let us help. If you’re wondering, “Who is the most trustworthy and reliable estate planning lawyer near me?” the answer to your question will always be the same: Apple Payne Law.

At Apple Payne Law, we focus on estate planning, so your estate can minimize the amount of time and assets spent on probate. We know how to streamline the process to ensure your loved one’s estate is distributed the way they would have wanted, and we’ll gladly handle all the intricacies to ensure the best possible outcome for you and your family.


Author Bio

Ronald D. Payne II
Ronald D. Payne II is the CEO and Managing Attorney of Apple Payne Law, a North Carolina law firm he founded in 2018. With more than 11 years of experience practicing law, he is dedicated to representing clients in a wide range of legal matters, including business law, estate planning, family law, probate, and traffic law.

Ronald received his Juris Doctor from the Wake Forest University School of Law and is a member of the North Carolina Bar Association. He has received numerous accolades for his work, including being awarded the 2020 Client’s Choice Award by Avvo and multiple Rising Star awards from Super Lawyers.

LinkedIn | State Bar Association | Avvo | Google

location map

Contact us below and we’ll be in touch as soon as possible!

Kernersville Office

900 Old Winston Rd. STE 212
Kernersville NC 27284

Winston-Salem Office

190 Charlois Blvd. Suite 200
Winston-Salem NC 27103