My loved one’s estate is really small. Do I still have to go through probate?
May 31st, 2022 in Estate Planning
One of our most frequently asked questions in estate administration is, “The estate is really small. Do I really have to go through the entire probate process?” While there are ways under North Carolina statutes to avoid a full-on estate administration, other factors, besides monetary value, will help determine if your process can be shortened.
Surviving Spouse
If you’re a surviving spouse of the decedent and find assets totaling to or less than $30,000, you may file for a yearly allowance. This will enable you to legally collect the assets. This may be the case if the assets were in your spouse’s name solely, or they were not beneficiary designated. This form must be filed within one year of the date of passing and, once filed, will remain active for one year from the filed date – thus, allowing you to collect any other assets that you come across within the one-year mark to bring you up to $30,000. Any assets claimed by the spouse in the yearly allowance is free from most creditors’ claim.
Small Estate Affidavit
If you’re a child (over the age of 18), next of kin (over the age of 18), or Executor of the Estate for the deceased and current total asset values do not exceed $20,000, you may file a Small Estate Affidavit. Even if the estate is really small, we can help you decide if you really have to go through the entire probate process. This will allow you to list and collect assets that were solely in the decedent’s name or assets that were not beneficiary designated. However, assets in a small estate are not free from creditors’ claims. If there are no creditors or those creditors of the decedent have been satisfied or settled, the collected remaining funds may then be distributed to the next surviving member (i.e. children, parents, etc.).
Executors are appointed through the Last Will & Testament of the decedent and, therefore, must file the original Last Will & Testament of the decedent with the Small Estate Affidavit to confirm their nomination with the clerk’s office. Upon processing the Small Estate Affidavit and Will, the clerk’s office will confirm whether or not the Executor will be appointed to serve in the respective role. Additionally, the filed Will governs how the distributions to each beneficiary are to be made. Finally, assets that are collected and distributed to each beneficiary must be listed on the Affidavit of Collection and Disbursement with the dates of distribution and with Receipts signed and witnessed by each beneficiary – and distributions must comply with the terms of the Will.
If you have questions on the estate administration of your loved one, or if you have been appointed as an Executor and have questions, please give us a call to schedule an appointment with one of our estate administration attorneys.
Our attorneys are here to help you plan and strategize for the future of your business and your personal planning.
