Charlotte, NC asked in Estate Planning for North Carolina

Q: My husband's will was created by estate JD and witnessed in KY. He died in NC, all assets/no debts to me. We one child

Do we need to file probate?

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1 Lawyer Answer
Catherine E Bruce
Catherine E Bruce
  • Estate Planning Lawyer
  • Chapel Hill, NC

A: "Non-probate assets" are those which are owned jointly and/or which have a beneficiary designation. If all of your husband's assets were non-probate assets, you do not need to file for probate. Real property is non-probate if it is owned as "tenants by the entireties" or "joint tenants with rights of survivorship." Bank accounts and other investment accounts must be owned jointly with rights of survivorship or have a "payable on death" designation to be non-probate assets. And vehicles and other personal property must be owned jointly. Alternately, property such as life insurance and retirement benefits are considered non-probate assets if they have a beneficiary designation.

If any property was owned solely by your husband without a beneficiary designation, you will need to file for probate to have that property transferred to you under the terms of his will. If it is a minimal amount (less than $30,000), you can file a "year's allowance" to avoid the necessity of a full probate. The year's allowance allows a surviving spouse to claim up to $30,000 of your husband's probate assets.

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