Probate for Small NC EstatesShow Table of Contents
In North Carolina, small estates can bypass probate via small estate affidavit, and any estate where the surviving spouse is the sole heir can petition for Summary Administration.
Small Estate Definition (NC)
In North Carolina, an estate qualifies as "small" if the value of relevant personal property is <$20,000, or <$30,000 if the small estate affidavit applicant is a surviving spouse who will inherit everything (see Family Allowances below).
In calculating estate value, you should value assets as of the date of death, subtracting the amounts of any associated liens or encumbrances, but ignoring any unsecured debts. Do not include real property (i.e., real estate), and do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Small Estate Process
To use the small estate process,
- The estate must qualify as "small" as per above
- At least 30 days must have passed since the death
- An application for appointment of personal representative cannot have been made
If the above conditions are met, you can submit a small estate affidavit form to the appropriate court (see below), then use the certified affidavit to collect the estate property in order to settle the estate in the normal manner: pay any family allowances, pay all debts, and distribute remaining assets to heirs.
Within 90 days of filing the small estate affidavit, you must file a follow-up affidavit of collection, disbursement, and distribution with the court, confirming that you collected the assets, and specifying how you disbursed them.
See NC G.S. § 28A-25-3.
While not strictly a small-estate procedure, if the only person entitled to inherit from the estate is a surviving spouse, then the spouse can submit a Petition for Summary Probate Administration, which enables the entire estate to be transferred to the spouse with minimal process. Note that this transfer includes debts: the spouse will become personally responsible for resolving any estate debts (and likely was already).
See NC G.S. § 28A-28.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any NC Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
See also General Probate.