“Thanks for your time and careful explanation of all the little details we needed to know to get Mom’s estate settled!” Steven L. (Former client)

What is probate?

Probate is the administration of a person’s estate that is overseen by the Clerk of Superior Court. A person who has died is called the “decedent.” The person who settles the decedent’s estate is called the “executor” or “personal representative.” An “executor” is typically nominated under the terms of the decedent’s will although the Court must approve the appointment of the nominated person or financial institution. When a person dies owning assets in his or her name alone, the probate process is started by a personal representative to handle the decedent’s assets and take care of the settling the decedent’s affairs.

What happens after the probate is started?

The personal representative’s job is to “settle the decedent’s estate.” This includes notifying beneficiaries, gathering assets, paying debts, accounting for all property that comes into and goes out of the estate, and properly distributing the decedent’s property. The Clerk of Superior Court’s job is to make sure that the personal representative carries out its duties. The personal representative is the only person legally authorized to deal with the assets of the estate and handle matters of estate administration.

Do all of a decedent’s assets go through a probate?

No. Assets held with rights of survivorship pass automatically to the survivor and are not subject to probate. Assets with designated beneficiaries such as life insurance policies, annuities, IRA’s and various retirement plans pass to named beneficiaries and are usually not subject to probate. The assets held in trust are governed by the terms of the trust and usually pass outside the probate process as well. If the assets are needed to pay debt however, some assets can be brought into the estate and sold.

How does the probate process end?

The probate process ends when the decedent’s debts, taxes and administrative expenses have been paid, all of the remaining assets of the estate have been distributed, and the Clerk of Superior Court releases the personal representative from further responsibility for the administration of the estate. It is not unusual for the probate of an estate to take a year.