North Carolina Estate Planning Questions & Answers

Q: Does an ancillary estate in NC, require a notice to creditors to prove ownership, if the full estate was in SC.

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Mar 4, 2019
Charles Evan Lohr's answer
N.C.G.S. 28A-26-8 provides that creditors barred by the out-of-state notice are barred in NC, as well. Assuming a certified copy of the out-of-state affidavits of publication and notice are already in the ancillary estate file, I think the quickest solution is to have the agent talk to the closing attorney and title insurer to make sure they're okay with everything. If not, you can reopen the ancillary estate and publish notice in NC.

Q: I have revocable living trust, which was restated 5 years ago, superceding the original trust dated july 10 l998.

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Feb 26, 2019
Charles Evan Lohr's answer
You should be able to change successor trustees and eliminate special bequests with a trust amendment and restatement. The special needs trust may be more difficult to change depending on the situation. Feel free to contact me if you'd like to discuss more.

Thank you,

Evan Lohr

Attorney at Law

(919)348-9211

evan@lohrnc.com

Q: My wife passed, our residence is in NC. She had an account in a bank in SC. Bank won't let me get funds. What now?

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Feb 20, 2019
Charles Evan Lohr's answer
There are various options you could pursue with the Clerk of Court depending on the value of assets in her estate. I am glad to discuss if you'd like.

Evan Lohr

Attorney at Law

(919)348-9211

evan@lohrnc.com

Q: Mom lived in Va & owned property in NC. I’m the beneficiary & live in Va. What are the steps to transferring to me?

1 Answer | Asked in Estate Planning and Real Estate Law for North Carolina on
Answered on Feb 15, 2019
Charles Evan Lohr's answer
A certified copy of the will and the probate file must be filed with the clerk of court in the county where the real property is located and an order or probate entered there. Depending on the county, there are sometimes es additional steps that must be taken. Feel free to co text me if you need assistance.

Best regards,

Evan Lohr

(919)348-9211

Evan@lohrnc.com

Q: In North Carolina, after death how much time do you have to put an estate through probate?

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Feb 4, 2019
Charles Evan Lohr's answer
If an executor hasn't opened an estate after 8 months, then another family member or a beneficiary under the will can apply to have it opened. There are several steps that need to be followed to do it properly. Feel free to call me to discuss further.

Evan Lohr

(919)348-9211

Q: Trying to close estate of my father who died 5 years ago. He died with two assets, an old car and motorcycle in parts.

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Jan 27, 2019
Kelli Y Allen's answer
At this point, you probably need to seek assistance from a probate attorney just to get this resolved and the estate closed.

Q: NC Elective Share calculation - Can someone explain the calculation in layman terms?

2 Answers | Asked in Estate Planning, Family Law and Probate for North Carolina on
Answered on Jan 25, 2019
Amanda Bowden Houser's answer
Essentially, a deceased person could have taken any number of incredibly simple steps legal and / or illegal to ensure his or her surviving spouse gets absolutely nothing upon his or her death but cutting the surviving spouse out of a will is not one of them. So if the surviving spouse is domiciled in NC and finds they have been cut out of or inadvertently omitted from a will, the surviving spouse is allow to claim an "elective share" as set forth in simple layman terms directly in NCGS §...

Q: In NC are heirs responsible for secured debt, we did not co sign the loan but have been in contact with the bank.

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Jan 24, 2019
Charles Evan Lohr's answer
The real estate is not technically part of the estate, but you could get your expenses out of the property - assuming they are significant enough to make it worth doing so and there is enough equity. The debt stays with the property and becomes the responsibility of the new owners to deal with (or allow the property to be foreclosed on). The bank’s failure to respond to the creditor notice does not remove or invalidate their deed of trust. There are several issues that may need to be dealt...

Q: NC Elective share-When served with an elective share petition from the surviving spouse, and you have no defense,

1 Answer | Asked in Estate Planning, Family Law and Probate for North Carolina on
Answered on Jan 23, 2019
Charles Evan Lohr's answer
You do not have to respond if you believe you don't have any defense, however, there are often property valuation issues that come up in these types of cases. I'm glad to discuss if you'd like.

Thank you,

Evan Lohr

Attorney

(919)348-9211

evan@lohrnc.com

Q: How solid is the “My 5 Wishes”?

1 Answer | Asked in Estate Planning and Probate for North Carolina on
Answered on Jan 19, 2019
Charles Evan Lohr's answer
My condolences on your situation. In this case, since there was no will, North Carolina's intestacy rules will dictate how your fiance's assets are distributed. You may be able to be appointed administrator of the estate, especially if the child will agree that you should serve. Handling probate appropriately can be very difficult - feel free to contact me to discuss further.

Evan Lohr

Attorney

(919)348-9211

evan@lohrnc.com

Q: No will, no surviving spouse, all seven children are deceased, they have children, are the children the only heirs?

1 Answer | Asked in Estate Planning and Probate for North Carolina on
Answered on Jan 10, 2019
Sara W. Harrington's answer
The North Carolina laws of Intestate Succession determine who will inherit when there is no will.

If there is no surviving spouse or children, the next in line are grandchildren. If some of the grandchildren have died before the person of whom you are speaking, then their children would inherit as well. Spouses of heirs do not inherit through intestate succession.

The relevant law N.C.G.C. 29-15 states that "if the intestate is survived by two or more children or by one child...

Q: What next with NC Assignment of Spousal Years Allowance form?

1 Answer | Asked in Estate Planning and Probate for North Carolina on
Answered on Jan 8, 2019
Sara W. Harrington's answer
I'm sorry for your loss.

You're off to a good start by filing the Spousal Allowance form.

If your wife listed you as the beneficiary (also called TOD or POD) on her financial accounts or if you had a joint account held as "joint tenants with right of survivorship", the financial institutions should transfer the funds to you and it will pass outside the estate. This should not be counted against your Spousal Allowance.

If you were not the beneficiary and have listed...

Q: What is the process to add a backup personal representative to a will after a loved one's passing?

1 Answer | Asked in Estate Planning and Probate for North Carolina on
Answered on Dec 26, 2018
Sara W. Harrington's answer
The North Carolina statutes provide for a procedure to replace the executor if the executor dies. It's generally a very orderly process. The will may list successor to the executor or the Clerk may appoint someone. In your case, it sounds like the will listed no successor personal representative. No one but the person who wrote the will (the testator) can change the will and no changes can be made to a will after the testator's death. If the personal representative does not feel he or she is up...

Q: False DV report to shelter w/ no police report against my deceased dad so she can claim inheritance. Can she do this?

2 Answers | Asked in Estate Planning and Probate for North Carolina on
Answered on Dec 5, 2018
Amanda Bowden Houser's answer
If you father had no will, anything that doesn't automatically pass (such as joint accounts and life insurance with named beneficiaries) will pass via intestate succession which if you are the only child is spouse inherits 1/2 of intestate real estate and a portion of intestate personal property (if you die with personal property worth $60,000 or less, spouse inherits all of it; if you have more than $60,000 worth of personal property, your spouse inherits $60,000 plus 1/2 of the balance) child...

Q: Parents died and in will left home to children. One lives in the house, won't pay rent to others and won't move out.

2 Answers | Asked in Real Estate Law, Estate Planning and Probate for North Carolina on
Answered on Oct 17, 2018
Melissa Averett's answer
Hire an attorney to file a petition to partition the property. Family law attorneys are more likely to be aware of this type of claim. its an action before the clerk of court to handle this exact situation that will likely result in either a settlement of one party buying the other's interest or a court order compelling the sale of the property.

Q: Should a POA be recorded in the NC county in which it was notarized or the county where I am presently residing in NC?

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Sep 26, 2018
Will Blackton's answer
This may depend on how the PoA will be used. If, for example, the PoA is granted to allow one spouse to purchase a residential home in Wake County in the names of both spouses, it would make sense to record the PoA in Wake County.

Who is supposed to honor this PoA? Many businesses/professionals will refuse to honor old PoAs, considering them to have gone "stale."

If you're using the PoA to accomplish a specific task, ask the person who will be honoring the PoA where they...

Q: Father died no Will. Wife & 4 children. Wife says not sharing estate with children. Wife name not on house or cars.

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Sep 20, 2018
Sara W. Harrington's answer
Your father's widow is allowed to claim a spousal allowance of $30,000 immediately. That is designed to help spouses pay bills until the estate is distributed.

If your father had no will, the estate (after the first $30,000 goes to the widow) will be distributed according to the laws of intestate succession. Under that law, the surviving spouse will receive 50% of the estate and the other 50% is shared by the deceased person's living children and heirs of deceased children. The real...

Q: My father died last week and my brother changed the locks and threw me out of the home where I had been living

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Sep 19, 2018
Sara W. Harrington's answer
The answer depends on a lot of factors in order to give you an answer to this question. These questions include:

Did your father own or rent the home?

Was there a mortgage?

Was there a will?

How many other heirs are there to the estate?

I suggest you talk to a local estate administration attorney and bring answers to these questions in order to get a more complete answer to your question.

Q: After the estate is settled and there is a house does it automatically go to the 3 children of the deceased?

1 Answer | Asked in Estate Planning for North Carolina on
Answered on Sep 19, 2018
Sara W. Harrington's answer
In North Carolina, real estate passes to the heirs on the date of the deceased person's death. Who the real estate is left to is determined by a specific gift of real estate in a will filed with the Clerk of Court's office or it passes under the laws of intestate succession.

According to the laws of intestate succession, if the deceased person is survived by a spouse and children, the spouse gets 50% of the property and the children (and the heirs of deceased children) share in the...

Q: how do you find an estate file? what exactly is an estate file?

1 Answer | Asked in Estate Planning and Real Estate Law for North Carolina on
Answered on Sep 19, 2018
Sara W. Harrington's answer
An estate file is the collection of documents filed with the Clerk of Court (in the city in which the deceased individual lived or owned real estate) in reference to the administration or probate of the deceased person's estate. These files are kept in a separate area from civil or criminal files. You should be able to look on the computer system in the Clerk of Court's office under the name of the deceased person to find the file.

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