Executor Series, Part 2: What to File and Where to File It

Cary, NC Probate Lawyer

Cary, NC Probate Lawyer

*This is Part 2 of a series of articles on how to be an Executor in North Carolina. You can read Part 1 here.* This article assumes there is a valid will to be submitted to probate. If you run into any problems, it's best to contact a Cary, NC Probate Lawyer.

Now that you've gotten the documents (death certificate and original will) together, it's time to prepare the pleadings and get the estate opened. 

The first concept you're going to be dealing with at this point is "venue" - i.e., where do I open the estate and submit the pleadings? In North Carolina, the county where the decedent (the person who passed) lived and had the intention to remain is the exclusive venue to open their estate. So, for example, if someone lived and worked in Cary, North Carolina and had no intention of moving to anywhere else, the venue for their estate will be Wake County (the county where Cary is located). The Clerk of Court has exclusive jurisdiction over the creation and settlement of the estate, so all of your pleadings and correspondence and payments will be directed to the Clerk of Court of Wake County. So, what needs to be filed? An executor in North Carolina can expect the following:

1. The Application for Probate and Letters (Form AOC-E-201)

This form gets the ball rolling on the probate process. The Executor will need to complete this form and submit it with the 1) death certificate, 2) original will, 3) cash/certified check/money order for $120 for the filing fee, and 4) oath (see below) - if you're an out-of-state Executor (you permanently reside outside of North Carolina), you'll also need to submit the Appointment of Resident Process Agent (AOC-E-500) to receive legal process in the state on behalf of the Estate. It's best to set an appointment to meet with a deputy or assistant clerk in the Estate's Division to make the initial filing and payment to make sure you're not missing anything important.

The Application for Probate and Letters will ask for the: 1) full legal name of the decedent, 2) date of death, 3) address at date of death, 4) the name, addresses and ages of beneficiaries under the Will, and 5) the nature and probable value of property of the decedent - this is set out in the Preliminary Inventory, which is attached as page 2 of the Application. 

2. Oath (Form AOC-E-400)

The Oath must be completed, notarized, and filed with the Application in order for the proposed Executor to qualify to represent the Estate. The Oath essentially sets out that the Executor will act in the best interest of the Estate's beneficiaries while administering the Estate. 

Filed and Paid - Now What?

Once the forms are processed, the Clerk will issue Letters Testamentary, which are essentially legal documents that evidence your authority, as Executor, to deal on behalf of the Estate. You'll get 5 originals of the Letters included with the $120 filing fee. You can have more prepared for $1 for each additional Letter. I usually order five (5) extras, just in case. 

When you receive the Letters, you'll be able to go to set up an EIN for the Estate and go the decedent's bank to consolidate their accounts into one Estate Checking account.

Notice to Creditors

North Carolina law requires the Executor to publish a Notice to Creditors in order to settle all creditor claims prior to settling the estate. This is meant to put all unknown creditors on notice of the death and their right to make a claim against the estate for any debt that may have been owed by the decedent. The claim must be made during the time period set out in the Notice (90 days from the date of first publication). 

Contact a local paper of general circulation. In Wake County, the News & Observer pretty much controls the submission of Notices for the N&O and most of the regional newspapers around the county. With the N&O you can submit a Notice (legal classified) online by uploading the Letters Testamentary and filling out the form online with the substance of the Notice. You'll be charged a fee of between $114-130 depending on the paper you use and you'll get a confirmation from the paper of the classified ad and when it will run. 

Once the Notice runs, then the Creditor Claim period begins. More on that next week in Part 3. Again, if you've made it this far and can't keep going, for whatever reason, it's best to contact a Cary, NC Probate Lawyer.