Taking care of a loved one’s estate after he or she passes away usually involves following a relatively standard set of procedures. Sometimes, however, you may run into an issue which can only be resolved by a court. When that happens, you need to initiate an “Estate Proceeding.”
What is an Estate Proceeding?
An Estate Proceeding is a court action concerning the administration, distribution, or settlement of a deceased person’s estate. Along with the Executor, anyone who has an economic interest in the estate may file a petition with the Clerk of Court to initiate an estate proceeding. The people who are most likely to have a financial interest in an estate are the spouse or children of the deceased, or creditors who believe the deceased owed them money.
Why would someone file an Estate Proceeding?
If you are an heir or family member, are you worried that:
- There is something wrong with a loved one’s will?
- The will being presented to the court is not the true, valid will of your loved one? For example, is there a more recent will? Do you think someone pressed your loved one to create this will through fraud or undue influence?
- The Executor is not doing her job? Perhaps she is not communicating with you or with other family members. Perhaps the Executor is taking improper shortcuts and not following all of the procedures and formalities of the position. An Estate Proceeding can help ensure the Executor is keeping you informed and that she is responsibly managing the estate.
- The Executor should be replaced because she is not doing what she is supposed to do?
Or, if you are the Executor:
- Is there an ambiguity in the will?
- Do you need clarification as to who the heirs are?
- Is the appropriate distribution among heirs and creditors unclear?
- Is someone holding on to property that you believe belongs to the estate? Whether the property is land or a personal item, the court can empower you to take possession.
- Do you need to step in and take care of land that does not belong to the estate? Unless real property is given directly to the estate in the will, the Executor typically does not have authority to pay property expenses such as the mortgage, insurance, or taxes. However, the court can authorize you to take possession of the property or pay property expenses where doing so is in the best interests of the estate.
- Do you need to sell real property to pay creditors? In North Carolina, real property usually passes directly to the heirs unless the decedent made other, specific provisions in the will. However, the court can empower you to take and sell real property that wasn’t originally willed to the estate, if the property is needed to cover the estate’s debts.
- As Executor, you may be personally liable for any mistakes you make. Therefore it is important to protect yourself by asking the court to make the final call on any ambiguities. For more information on your responsibilities as Executor, see the North Carolina Administrative Office of the Courts’ guide.
If any of these situations apply to you, Averett Family Law can help. We represent petitioners and respondents in Estate Proceedings before the Clerk of Court and in Superior Court in Chatham, Orange, Durham and Wake Counties. We can help you understand your rights and responsibilities. And we can represent you in the initiation or defense of Estate Proceedings.