Estate & Trust Administration, Probate

Probate is the legal process that takes place after someone dies to prove the validity of their will (if they had one) and administer the person’s estate. The key aspects of probate include:

1. Authenticating the will: If the deceased left a will, the court reviews it during probate to determine if it is valid and represents the true intentions of the deceased.
2. Appointing an executor/administrator: The court officially appoints the executor named in the will (or an administrator if there is no will) to oversee the probate process and distribution of assets.
3. Identifying and inventorying assets: All assets owned by the deceased must be located, valued, and documented.
4. Paying debts and taxes: The executor must use the estate’s assets to pay off any outstanding debts, taxes, and creditors of the deceased.
5. Distributing remaining assets: After debts are paid, the remaining assets are distributed to beneficiaries named in the will according to the will’s instructions. If there is no will, they follow intestate succession laws.
6. Court supervision: The probate process is court-supervised to ensure the proper administration and distribution of the deceased’s assets and affairs.

Probate can be a complex and lengthy process, sometimes taking months or years if the estate is large or if any disputes or challenges arise over the will or distributions. However, in some instances, depending on state law, probate can be fairly straight forward and expeditious, particularly if the executor or administrator I organized and acts at the direction of an attorney. Probate also becomes a public court procedure, unlike the handling of trusts which remains private.

Some smaller estates may qualify for an expedited or simplified probate process depending on state laws.

The costs associated with probate can vary significantly depending on several factors, but typically include:

Executor fees: The executor, who is responsible for managing the process, may elect to receive a fee. In North Carolina, the fee is set at 5% of the receipts of the estate and in Virginia the fees are as follows:

1. Income — 5% of income receipts (not including capital gains) realized during each accounting period.
2. Principal — A fee based upon the inventory value, including amended inventories, of the decedent’s probate assets in accordance with the following schedule:

In both Virginia and North Carolina, the fees of the Executor must be approved.

Court costs: There are filing fees, publication costs for legal notices, certified copy fees and other court-related costs which can run from a few hundred to thousands of dollars.

Probate tax: The probate tax is based on the value of assets in an estate and is charged on receipts of the estate. In North Carolina the probate tax is equal to $0.40 per $100 of assets but in Virginia the fees will vary based on location. The state probate tax is $0.10 per $100 of assets but each locality the city or county may impose a local tax of one third of that amount. There is no probate tax on estates of less than $15,000 in Virginia.

Bond premiums: Some Executors and all Administrators must post bond which insures proper management – premiums can be 0.5-2% of the estate value.

Final income taxes: Any final income taxes owed by the deceased on their final returns are paid from the estate.

In addition, most Executors and Administrators will choose to hire an attorney to assist with the process and to ensure they are fulfilling all legal requirements. Attorney’s fees are appropriate expenses associated with the administration of an estate.

There can also be extra costs if the probate becomes complex or contested, requiring more court time, filing fees, attorney’s fees, etc.

Death taxes refer to the taxes that are levied on the transfer of a deceased person’s estate and assets to their heirs or beneficiaries. The two main types of death taxes are:

1. Estate Tax: The estate tax is a tax on the transfer of the estate itself. It applies to estates valued above a certain exemption level set by the government. In 2025, the federal estate tax exemption is $13.99 million for an individual, meaning estates under this amount do not owe federal estate taxes. In addition, some states impose a state estate tax which can be either coupled with the federal estate tax or decoupled. However, neither North Carolina nor Virginia currently impose a state estate tax.
2. Inheritance Tax: An inheritance tax is a state tax that some states impose on the recipients who inherit assets from an estate, whether money, real estate, etc. The tax rates and exemption levels vary by state. Neither North Carolina nor Virginia impose an inheritance tax.
3. Probate Tax: See above for details regarding probate tax.

An estate tax is a tax levied on the total value of a deceased person’s money and possessions before any transfer to beneficiaries is made. It applies to estates valued above a certain exemption level set by the government. In 2025, the federal estate tax exemption is $13.99 million for an individual, meaning estates under this amount do not owe federal estate taxes. In addition, some states impose a state estate tax which can be either coupled with the federal estate tax or decoupled. However, neither North Carolina nor Virginia currently impose a state estate tax.

It depends. In some instances probate can refer to simply filing a person’s will but there is no need for additional work because all assets pass to the beneficiaries through means other than formal administration. However, in some cases, a formal administration is required and, for larger or more complex estates, this process can be lengthy.

For estates in which a full administration is required, in North Carolina, the process cannot be completed until a specified time for creditors to come forward has expired. This is 3 months based on a date that notice was published in accordance with state law. In Virginia, estates requiring a full administration cannot typically be completed for at least one year from the date of the decedent’s death.

Once again the answer is “it depends. If assets were titled in the name of a revocable trust pripr to the decedent’s date of death, then those assets pass outside of probate. However, if a decedent simply had a revocable trust but did not take the steps to transfer assets into the trust during his or her lifetime, then probate may still be required so those assets pass into the trust but through the process of probate.

Assets which are owned by a deceased individual in his or her sole name, which do not have a joint owner or designated beneficiary pass through probate. In some states this includes real property, however, in North Carolina and Virginia, real property is not subject to probate, even if they are not jointly held.

When someone dies, there are several important steps that should be taken:

1. Get a legal pronouncement of death. If the person dies at home under hospice care, you’ll need to notify the hospice and they will arrange for a doctor or nurse to make the official declaration.
2. Arrange for the transport of the body. You’ll need to engage a funeral home to pick up the body or transfer it to their facility.
3. Secure the deceased’s property. Ensure their home is protected, perishable items such as food are removed from the home, and begin making a list of their assets, documents, outstanding bills, etc.
4. Arrange for the care of pets. 
5. Obtain multiple copies of the death certificate. How many are needed will be based on the assets owned by the decedent. It is better to err on the side of getting too many rather than too few. 
6. Notify others. Inform close family and friends.
7. Obtain asset information including gathering copies of bank statements, investment account statements, life insurance policies, and any information you can find on beneficiary designations.
8. Secure professional legal and tax advice for guidance on steps needed to finalize the affairs of the deceased, including whether estate or trust administration is needed.

If you have been named as the executor of someone’s estate, it is important to remember that no action should be taken until you have been officially appointed as the executor of an estate by the appropriate court. After the testator has died, be sure to locate the original will, obtain multiple copies of the death certificate, and gather information about the assets of the deceased, then contact an attorney for guidance on what steps to take next, including the determination of whether qualification as executor is required.

The executor has fiduciary duty, which is a legal obligation, so you must act in the estate’s best interests. Hired professionals like attorneys and accountants can guide you through the complex process. Proper management and distribution of assets is crucial.

Here are some of the main ways to avoid the probate process after you pass away:

1. Create a Revocable Living Trust By creating a revocable trust and re-titling your major assets in the name of the trust during your lifetime, those assets will bypass probate and can be distributed directly to your beneficiaries by the trustee after your death.
2. Set Up Transfer-on-Death Designations You can name beneficiaries to directly inherit certain accounts like bank accounts, investment accounts, vehicles etc. through transfer-on-death (TOD) or payable-on-death (POD) designations.
3. Use Joint Ownership with Rights of Survivorship (if appropriate) for assets like real estate, bank accounts, investments etc., you can hold them as joint tenants with rights of survivorship with your spouse or others. The deceased’s share will directly pass to surviving owners. It is important to remember that these assets pass separately and outside of any will or trust.
4. Give Away Property Before Death You can gift interest in property, like your home, to your beneficiaries before death through a quitclaim or ladybird deed so those assets avoid probate.
5. Maximize Non-Probate Assets, Assets that let you name beneficiaries like life insurance and retirement accounts avoid probate and pass directly to beneficiaries you name.