Probate is Latin for “prove” and is the process by which the Last Will and Testament of a deceased is proven to be genuine. Many attorneys use affidavits in which the Testator and the witnesses certify that the Testator is of age and capacity and has signed the Will without being subjected to the undue influence of others. The affidavit is signed when the Will is formally executed and is included with the Will. If the Will is not “self-proving,” affidavits of witnesses, and, perhaps, even a hearing before the Clerk of Superior Court will be required to prove a Will.
Once a Will has cleared the probate process, the estate will be administered, creditors will be paid, and the remaining estate passed to his or her heirs and legatees (people named in the will). This process of administration is virtually identical whether the person died with or without a Will. The entire process of administration generally takes about a year; however, certain property, such as life insurance, any property the deceased owned jointly with another, or property in trust, does not go through administration. Although the whole process can take a year, certain distributions from the estate may be made in the interim.
Procedurally, the estate administration process works as follows:
First, the will must be filed with the Clerk of Superior Court and notice given to all interested parties. If no one objects, the court appoints the executor named in the will. If there is no will, the court appoints an administrator to carry out the process. In either case, the appointed representative of the estate is responsible for collecting the estate’s property and paying any debts of the estate.
Notice to Creditors is published in a local newspaper.
An “Inventory” of the estate property must be prepared within 90 days and filed with the Court.
After the period for creditors’ claims is complete, creditors claims must be prioritized and paid. Depending on the estate, some property may have to be sold or an estate tax return prepared and filed. A final year’s income tax return must also be prepared and filed.
After debts have been paid, the estate may be distributed according to the terms of the Will or under statutory method of distribution if there is no Will.
Finally an accounting of receipts and expenditures during the estate administration must be filed with the Clerk of Superior Court and audited for completeness and accuracy.
The Clerk’s fees for the administration of an estate are $120.00 plus 4/10 of a percent of the value of the personal property that is administered through the estate. The executor or administrator may be entitled to a commission to be determined by the Clerk of Superior Court.