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Probate is the legal process whereby the assets of a deceased person are distributed to their beneficiaries or heirs after the decedent's death. To settle an estate, in North Carolina the county probate court appoints a personal representative to manage the estate's assets and liabilities, if the decedent did not appoint an executor in his will to do so.
When settling an estate, residents of North Carolina have options outside the traditional probate process. The Affidavit for Collection of Personal Property of the Decedent (Collection by Affidavit) is one simplified procedure applicable solely to small estates.
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What is The Affidavit for Collection of Personal Property?
According to the North Carolina statute § 28A-25-1, a heir can settle a deceased person's estate without going through probate by applying for the Affidavit for Collection of Personal Property of the Decedent (form AOC-E-203B).
The affidavit for collecting personal property is a two-page document, and the filing fee is $120.
Whether the deceased person passes away without a will (intestate) or with a will (testate), a Collection by Affidavit is an option for small estates. and may save one time and money when compared to the traditional probate process.
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Who May Serve As The Affiant?
The decedent's heir, beneficiary, creditor, or executor, may serve as the affiant ( a person who swears to an affidavit.) or person who makes the affidavit.
When a decedent does not leave behind a sizable amount of property, the administrator and heirs might save time and money by applying for the affidavit.
If the court grants the petition, the affiant will be permitted to collect and manage the inheritance. Debts must be paid, and assets must be distributed as directed in the will (or the North Carolina Intestate Succession law if the deceased left no will).
After all estate obligations have been paid, and all estate property has been distributed, the affiant must submit a closing affidavit with the Clerk of Superior Court.
The form is The Affidavit of Collection, Disbursement, and Distribution (Form AOC-E-204). Complete details of the estate's earnings, debt payments, and disbursements can be seen in the closing affidavit.
Requirements for qualifying for Affidavit for Collection of Personal Property.
The value of the deceased person's personal property, less any liens, must be $20,000 or less for the estate to be eligible for this process if the decedent was unmarried. The same applies if the affiant is not a spouse.
However, as the sole heir of the deceased, the surviving spouse may apply for the Affidavit. In this instance, the value of the decedent's personal property may not be more than $30,000 after deducting any encumbrances and a $60,000 spousal allowance.
[To learn more on how a small estate affidavit can help you skip probate I suggest you read this article: Small Estates: How a Small Estate Affidavit Can Help You Skip Probate Court.]
All tangible assets, such as furniture, jewelry, automobiles, etc., are included in this valuation. Stocks, bonds, and bank accounts are examples of intangible assets that are also considered part of the decedent's personal property.
Retirement accounts and life insurance policies with beneficiary labels are not included in the computation to determine whether or not an estate meets the legal definition of a small estate.
Land, houses, buildings, and mineral rights are examples of real property that fall outside this definition's scope.
[To learn more about which assets have to and not have to go through probate read the article: Probate Assets: What You Need To Know.]
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Conditions for filing out the Affidavit for Collection of Personal Property in North Carolina.
The provisions of North Carolina Statute 28A-25-1 directs the Affidavit for Collection of Personal Property. To ensure a successful procedure, the following requirements must be met:
There must have been at least 30 days between the date of death and the beginning of the application process.
The application must include Death Certificate verifying the 30-day waiting period
No pending application or approval must be granted for a personal representative's appointment.
The application must include a detailed inventory of the deceased estate. However, if the deceased's real property is to be sold within two years of death, the small estate criteria may be waived. [To learn what must be included in the inventory list read the article: How To Create a Probate Inventory List.]
A certified copy of the will must be attached to the application if the deceased left a valid will.
All the beneficiaries' and heirs' full names and current addresses must be entered correctly on form AOC-E-203B.
The form must be completed in black ink.
A notary public, Clerk of the Superior Court, or Assistant CSC must attest to the affiant's signature and the authenticity of the documents.
An official seal must be affixed by either a court official or a notary.
The county of the deceased's residence must be the location of filing the affidavit.
A Resident Process Agent document AOC-E-500, must be provided if you are not a resident of North Carolina. This form must be signed by you and an resident process agent who you appoint, and must be notarized. This designated individual will assist with handling court matters such as handling paperwork and making sure you receive the papers for your records. [To learn more about the role of the resident process agent I suggest you read: What Does A Resident Process Agent Do In Probate In NC.]
Benefits of applying for the Affidavit for Collection of Personal Property
Compared to a full-fledged probate administration, the Affidavit for Collection of Personal Property of Decedent process usually saves money and time. In contrast to probate, there is no mandatory waiting period or notice to creditors.
Thus, if an estate qualifies as "small, "it is unnecessary to go through the probate process, which can take months or even years. Instead, fill out the Affidavit for Collection of Personal Property and have it notarized. The clerk of superior courts will process the file and send out copies to all entitled parties.
Certified copies of the affidavit, along with the death certificate will be sent out to any party/person who has possession of the decedent's property. Once this is done the party is now obligated by law to transfer the property to the affiant.
North Carolina Affidavit for Collection of Personal Property
Using a North Carolina Affidavit for Collection of Personal Property, a deceased person's heirs can claim their inheritance without going through the lengthy and expensive probate process. However, this Affidavit is useful only if the petitioner or affiant has a valid claim to the estate.
To qualify for the affidavit, the net worth of the decedent's estate must be at most $20,000 or $30,000 if the surviving spouse is the only heir. [To learn more about the surviving spouse rights read: Surviving Spouses Property Rights in North Carolina.]
Despite how straightforward the procedure may appear, it demands great attention to detail. Because of this legal counsel can be invaluable if you need help with the affidavit process or the closure of an estate.
North Carolina Probate Solutions
Hello, I'm Denise Davis. The owner of North Carolina Probate Solutions and a licensed realtor with EXP Realty in Greenville NC. I chose to specialize in probate because I am also a registered nurse who have worked with hospice and palliative care patients and families and understand the burden probate can be while still grieving.
Trying to deal with probate and the lost of a loved one can feel like a tremendous load to carry.
I know probate can be both emotional and frustrating and can add additional stress to an already stressful time in life.
I understand the probate process and what is required to bring the process to completion. If there is something that I do not know, I work with experienced attorneys, contractors, accountants, inspectors and many other professionals who I can turn to, to get you the answers you need.
If you need to sell your loved ones home to pay off debt or to distribute funds to the heirs and/or beneficiaries lets talk to see how I can help you. I provide options, so whether it's listing your home on the market or getting you a fast cash offer I can help you.
If you find yourself having questions or needing guidance with probate matters, please feel free to reach out to me!
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* NOTE: North Carolina Probate Solutions and the author of this article is not a licensed attorney or CPA. This post should not be considered legal or tax advice. Always consult an estate attorney or tax professional when needing legal answers and legal advice.
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