The Clock’s Ticking…How Long Do You Have to File Probate After Death?

how long do you have to file probate after death

Losing a loved one is never easy. The grief and emotional toll of a loved one’s death can make the legal and financial responsibilities overwhelming. Settling an estate through probate can add even more stress if you don’t understand the process and deadlines.

Probate may seem intimidating, but it can be a smooth process with the right guidance.

What Is Probate Exactly?

In simple terms, probate is the court-supervised process for distributing someone’s assets after they die. Its purpose is to validate the will if there is one, and settle the deceased’s final affairs.

Filing probate fulfills several important functions in North Carolina:

  • It provides the legal basis for distributing the deceased person’s solely owned assets to their rightful heirs according to the will or state law if no will exists.
  • The probate court authorizes the executor or administrator to inventory assets, pay any valid debts or taxes owed by the estate, and handle ongoing administrative tasks.
  • Court supervision prevents disputes over asset distribution and misuse of estate funds. All parties have to follow proper procedures.
  • It creates a public record and timeline for settling the estate efficiently and transparently.

There are two types of probate – formal and informal. Formal probate involves more court oversight throughout the process. It’s required if the estate is above a certain value or if there are disputes among heirs. Assets like solely owned property or accounts without a beneficiary typically have to go through probate.

What’s the Probate Filing Deadline in North Carolina?

If the deceased person left a valid will, the executor named in the will can file a petition to probate the will at any time after the death of the testator, according to Article 2A of Chapter 28A of the NC General Statutes. However, if the named executor does not apply to probate the will within 60 days after the death of the testator, any devisee named in the will or other interested person may apply to probate the will after providing 10 days’ notice to the executor, as outlined in § 28A-2A-2.

If there is no will, Article 5 of Chapter 28A of the NC General Statutes provides that if a person entitled to apply for letters of administration fails to do so within 30 days from the date of death of the intestate, the clerk of superior court may issue a notice giving them 15 more days to qualify or request an extension of time.

Missing these deadlines can really slow things down and create unnecessary problems. The court may have to appoint an administrator, which costs more time and money. There could be penalties in some cases. Extensions are possible, but they further delay transferring assets and closing out the estate.

How Does the Probate Filing Process Work?

Filing for probate involves submitting a petition with the county probate court to officially open the estate. The petition names the heirs and an executor to handle the administration. It must include a certified copy of the death certificate as proof.

The court charges filing fees based on the estate’s value. Once accepted, the court issues letters testamentary (for estates with wills) or letters of administration (no will) to confirm the executor’s legal authority. A formal court hearing may be required as well.

The executor must then file an inventory of assets, keep beneficiaries informed, and take care of transferring property when the estate is ready to close. That’s the simplified probate process.

What Happens If You Miss the Deadline to File Probate After Death?

If the probate petition gets filed late, here are some potential consequences:

  • Beneficiaries may have to wait much longer to receive inherited assets. This causes unnecessary financial strain.
  • Without court supervision, assets are more susceptible to mismanagement or dissipation.
  • Tardy filings tend to increase confusion and disputes among heirs.
  • There could be delays in paying off the deceased person’s debts and final bills.
  • Statutory penalties are possible in certain situations for missing deadlines.

As you can see, putting off filing probate after someone dies in North Carolina is risky. Thankfully, a seasoned probate attorney can still help get things on track if you’ve passed the deadline.

Alternatives to Avoid Formal Probate

If you want to avoid probate, there are some options:

  • Name beneficiaries on financial accounts so those assets transfer directly.
  • Own property jointly with right of survivorship.
  • Create a living/revocable or irrevocable trust and transfer assets into it before death.

But for some assets, probate may still be required. An experienced estate planning attorney can advise you on structuring your assets to limit the scope of probate.

Frequently Asked Questions

What is the statute of limitations for contesting a will in North Carolina?

Beneficiaries can contest a will within 3 years in North Carolina. This is a longer timeframe than many states allow per NC Gen. Stat. 31-32.

How are assets passed in North Carolina if someone dies without a will?

If someone dies in North Carolina without a will, their assets will first go towards paying off any debts and funeral costs. If married, the surviving spouse inherits the entire estate if no descendants exist. Otherwise, they inherit a portion while descendants inherit the rest. If unmarried, assets pass to any descendants first, then progress to parents, siblings, and more distant relations. If no heirs are found, assets go to the state. An administrator handles the probate process to locate assets, pay debts, and distribute to heirs according to North Carolina’s intestate succession laws.

Can probate documents be filed electronically in North Carolina?

NC Courts are expanding digital filing options, but certain original documents must still be physically submitted, even in counties that are on the new e-Courts system.

Partner with Apple Payne Law for North Carolina Probate Support

Losing someone close to you is painful enough without having to navigate complex probate issues on your own. But you don’t have to go through it alone. The experienced team at Apple Payne Law has two convenient office locations ready to guide you through every step of the North Carolina probate process.

We know this is an emotional and challenging time. That’s why we approach each client with compassion, clarity, and a commitment to resolving estate matters as smoothly as possible. Don’t leave it to chance – protect your loved one’s legacy and your family’s interests by partnering with the probate professionals at Apple Payne Law.

Contact us today for a case review. We’re here to answer your questions, explain the specifics that apply to your situation, and ensure you file for probate properly and on time. With us by your side, you can gain the peace of mind that comes from having an advocate who truly understands North Carolina probate law. Let’s get through this together.


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.

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