A will names an executor, and a backup, and also identifies the beneficiaries and either specifically or generally the property those beneficiaries are to receive. It is filed upon death with the Estates Division of the Clerk of Court in the county where a person resides or owns real property. The executor is responsible for collecting the property of the deceased, paying the debts and expenses of the deceased in a manner set forth by statute and then distributing the remaining estate assets to the beneficiaries as set forth in the will. This is done in conjunction with accountings and other filings which must be submitted and approved by the Clerk of Court.
Probate is the formal process of determining who gets the property of the deceased. It is only necessary when someone dies owning either real or personal property that is only in their name. If the property is jointly owned with rights of survivorship the property passes to the surviving joint owner and probate is not necessary. The will is filed if there is one and if not the Intestate Succession Statute is followed in distributing assets (see NCGS Chapter 29).
If a will appoints an executor the Clerk will give Letters Testamentary upon application and qualification. When there is no will, someone applies to become administrator upon application and qualification Letters of Administration are issued. These become the “badge” which is given to access and collect bank accounts and all other assets of the decedent so that they can be used to pay debts and expenses and be distributed to beneficiaries/heirs.
A will contains many different items, but there are things that aren’t there as well. A basic Last Will and Testament will, in most instances, include the following items:
A statement of the name of the person signing the will and their county and state of residence.
A statement of the Testator’s immediate family as of the date of execution.
A statement regarding this distribution of a testator’s personal property, followed by a statement regarding the distribution of the residue of a testator’s estate.
A statement nominating a person or persons to serve as Personal Representative of the Testator’s estate.
A waiver of bond for the Personal Representative and a waiver of accounting requirements.
However, many people mistakenly assume that a basic will includes things like a power of attorney or nomination of guardian for minor children. This is not the case. A nomination of power of attorney can never be in a will. North Carolina’s statutes require that nominations of someone as attorney-in-fact be set forth in a separate document with separate execution requirements and separate language requirements. For more information on Powers of Attorney, click here. Nomination of a guardian for minor children can be included in a will, but unless it is specifically set out in the document, it is not included. For an example of what can happen when there is no nomination of a guardian for minor children, click here.