North Carolina Probate: Formal Administration Deadlines
Nithin B. Reddy
There are numerous dates that the probate court enforces, or takes action if they pass, with respect to formal administration, so it’s a good idea to understand some of the main ones as a personal representative (PR) or as any other interested party. The dates discussed below are divided into three main areas: post-death, post-PR appointment, and tax deadlines (Although tax deadlines are technically not formal administration deadlines, the court requires that the personal representative faithfully exercise its duty as a fiduciary agent of the estate and pay its taxes before the estate can be properly closed).
Although the main dates are listed below, there are other often other dates that arise during the course of probate administration and this list is not fully comprehensive. It’s still a good idea to plan for the dates below because very few of them can be completed in a few days and often require weeks of planning in advance, so it pays to be prepared.
- Immediately After Decedent’s Death: Will-Designated Executor May Apply for PR(1): Any will-designed executor may apply with the Court to be appointed personal representative and receive the letters of testamentary.
- 60 Days After Death: Any Interested Parties May Apply for PR(2): If no will-designated executors have applied for the status of PR and the letters of testamentary, the court may appoint any interested party (including creditors) as the PR in lieu of the statutory priority order normally given to will-designated executors and other persons of kin.
- 6 Months After Death: Public Administrator Appointment(3): If no one has been appointed as a PR after 6 months, then the court automatically appoints the public administrator as the PR of the estate. This should be avoided for obvious reasons.
Post-Personal Representative Appointment Deadlines
- 75 Days After PR Appt. – Notice to Individual Creditors(4): The PR must mail via first class mail all known creditors and possible creditors that could be discovered via reasonable investigation. The mail must indicate the claim filing deadline – a date which is set by the PR, but which cannot be earlier than 3 months after the start of notification via publication.
- 3 Months Minimum After PR Appt. – Creditors Notification and Wait Period(4): The PR, in publication and in individual letters to creditors, must set a claim filing date deadline that is at least 3 months after the date of notification via publication so that creditors have time to file claims against the estate.
- 3 Months After PR Appt. – Full Inventory(5): A full inventory of estate, with proof and documentation, must be filed with the court.
- 12 Months After PR Appt. – Annual Accounting(6): An annual accounting for the estate for the period of 2017 must be filed with the court. This is not necessary if the final accounting comes first.
- 3-4 Months Minimum to 1 Year or More After PR Appt. – Final Accounting(7): A final accounting of the estate, including proof and documentation of all transactions, claims paid, costs incurred, proof of creditor notification and publication, and assets distributed must be filed with the court by 12 months or 6 months after state tax release – whichever comes later. However, it can be filed early. An extension may be also requested. Please note that the final accounting cannot occur until notice to creditors has been given via mail and publication. If the PR handles all matters promptly, including notice and publication to creditors and no claims are pending, then it is possible to apply for an early final accounting to close the estate within 4 months after appointment.
- 9 Months After Death - Federal Estate Tax(8;9): As of October 2017, if the estate is over $5.49 Million, then a federal estate tax return must be filed by the PR within 9 months of the decedent’s death. Please note that gifts over $14,000 per year per individual at any time during the decedent’s life reduce the size of the $5.49M tax exemption. This tax exemption will probably increase in the future due to ongoing legislation. NC has no estate tax law(9).
- April 15th / October 15th – Federal and State Income Tax(8): Federal and state income tax return must be filed by the PR on behalf of the decedent for the tax year of death, subject to the normal timelines (April 15th; can get extensions). For all intents and purposes related to income tax filing, the PR steps into the shoes of the decedent for filing the income tax for the purposes of all deadlines. Only the estate is liable to pay those taxes. Gift taxes, if any are applicable to any pre-death transactions, is included on these returns.
There are a lot of dates and filings to navigate in formal administration of an estate. It’s important to get the advice and assistance of an attorney familiar with North Carolina Probate Law prior to and during formal administration, so please contact us at (919) 719-3462 or at email@example.com to schedule a free consultation.
1. § 28A-2A-1. Executor may apply for probate.
Any executor named in a will may, at any time after the death of the testator, apply to the clerk of the superior court, having jurisdiction, to have the will admitted to probate. (C.C.P., s. 439; Code, s. 2151; Rev., s. 3122; 1919, c. 15; C.S., s. 4139; 1921, c. 99; 1923, c. 14; 1953, c. 920, s. 2; 1975, c. 300, s. 13; 2011-344, s. 3; 2012-68, s. 1.)
2. § 28A-2A-2. Executor failing, beneficiary may apply.
If no executor applies to have the will proved within 60 days after the death of the testator, any devisee named in the will, or any other person interested in the estate, may make such application, upon 10 days' notice thereof to the executor. For good cause shown, the clerk of superior court may shorten the initial 60-day period during which the executor may apply to have the will proved. (C.C.P., s. 440; Code, s. 2152; Rev., s. 3123; C.S., s. 4140; 2011-284, s. 27; 2011-344, ss. 3, 4.)
3. § 28A-12-4. When public administrator shall apply for letters.
The public administrator shall apply for and may, with the approval of the clerk of superior court, obtain letters on the estates of decedents when:
(1) It is brought to the public administrator's attention that a period of six months has elapsed from the death of any decedent who has died owning property, and no letters testamentary, or letters of administration or collection, have been applied for or issued to any person; or
(2) Any person without known heirs shall die intestate owning property; or
(3) Any person entitled to apply for letters of administration shall, in writing, request the clerk to issue letters to the public administrator as provided in G.S. 28A-5-2(c). (1868-9, c. 113, s. 6; Code, s. 1394; Rev., s. 20; C.S., s. 20; 1973, c. 1329, s. 3; 2011-344, s. 4.)
4. § 28A-14-1. Notice for claims.
(a) Every personal representative and collector after the granting of letters shall notify all persons, firms and corporations having claims against the decedent to present the same to such personal representative or collector, on or before a day to be named in such notice, which day must be at least three months from the day of the first publication or posting of such notice. The notice shall set out a mailing address for the personal representative or collector. The notice shall be published once a week for four consecutive weeks in a newspaper qualified to publish legal advertisements, if any such newspaper is published in the county. If there is no newspaper published in the county, but there is a newspaper having general circulation in the county, then at the option of the personal representative, or collector, the notice shall be published once a week for four consecutive weeks in the newspaper having general circulation in the county and posted at the courthouse or the notice shall be posted at the courthouse and four other public places in the county. Personal representatives are not required to publish or mail notice to creditors if the only asset of the estate consists of a claim for damages arising from death by wrongful act. When any collector or personal representative of an estate has published or mailed the notice provided for by this section, no further publication or mailing shall be required by any other collector or personal representative. (b) Prior to filing the proof of notice required by G.S. 28A-14-2, every personal representative and collector shall personally deliver or send by first class mail to the last known address a copy of the notice required by subsection (a) of this section to all persons, firms, and corporations having unsatisfied claims against the decedent who are actually known or can be reasonably ascertained by the personal representative or collector within 75 days after the granting of letters and, if at the time of the decedent's death the decedent was receiving medical assistance as defined by G.S. 108A-70.5(b)(1), to the Department of Health and Human Services, Division of Medical Assistance. Provided, however, no notice shall be required to be delivered or mailed with respect to any claim that is recognized as a valid claim by the personal representative or collector. (c) The personal representative or collector may personally deliver or mail by first class mail a copy of the notice required by subsection (a) of this section to all creditors of the estate whose names and addresses can be ascertained with reasonable diligence. If the personal representative or collector in good faith believes that the notice required by subsection (b) of this section to a particular creditor is or may be required and gives notice based on that belief, the personal representative or collector is not liable to any person for giving the notice, whether or not the notice is actually required by subsection (b) of this section. If the personal representative or collector in good faith fails to give notice required by subsection (b) of this section, the personal representative or collector is not liable to any person for such failure. (1868-9, c. 113, s. 29; 1881, c. 278, s. 2; Code, ss. 1421, 1422; Rev., s. 39; C.S., s. 45; 1945, c. 635; 1949, c. 47; c. 63, s. 1; 1955, c. 625; 1961, c. 26, s. 1; c. 741, s. 1; 1973, c. 1329, s. 3; 1977, c. 446, s. 1; 1985, c. 319; 1987 (Reg. Sess., 1988), c. 1077, s. 1; 1989, c. 378, s. 1; c. 770, s. 8; 1991, c. 282, s. 1; 2013-378, s. 3.)
5. § 28A-20-1. Inventory within three months.
Every personal representative and collector, within three months after the qualification of that personal representative or collector, shall return to the clerk, on oath, a just, true and perfect inventory of all the real and personal property of the deceased, which have come to the hands of the personal representative or collector, or to the hands of any person for the personal representative or collector, which inventory shall be signed by the personal representative or collector and be recorded by the clerk. (R.C., c. 46, s. 16; 1868-9, c. 113, s. 8; Code, s. 1396; Rev., s. 42; C.S., s. 48; 1973, c. 1329, s. 3; 1975, c. 300, s. 8; 2011-344, s. 4.)
6. § 28A-21-1. Annual accounts.
Until the final account has been filed pursuant to G.S. 28A-21-2, the personal representative or collector shall, for so long as any of the property of the estate remains in the control, custody or possession of the personal representative or collector, file annually in the office of the clerk of superior court an inventory and account, under oath, of the amount of property received by the personal representative or collector, or invested by the personal representative or collector, and the manner and nature of such investment, and the receipts and disbursements of the personal representative or collector for the past year. Such accounts shall be due by the fifteenth day of the fourth month after the close of the fiscal year selected by the personal representative or collector, and annually thereafter. The election of a fiscal year shall be made by the personal representative or collector upon filing of the first annual account. In no event may a personal representative or collector select a fiscal year-end which is more than twelve months from the date of death of the decedent or, in the case of trust administration, the date of the opening of the trust. Any fiscal year selected may not be changed without the permission of the clerk of superior court. The personal representative or collector shall produce vouchers for all payments or verified proof for payments in lieu of vouchers. The clerk of superior court may examine, under oath, such accounting party, or any other person, concerning the receipts, disbursements or any other matter relating to the estate. The clerk of superior court must carefully review and audit such account and, if the clerk approves the account, the clerk must endorse the approval of the clerk thereon, which shall be prima facie evidence of correctness, and cause the same to be recorded. (C.C.P., s. 478; 1871-2, c. 46; Code, s. 1399; Rev., s. 99; C.S., s. 105; 1957, c. 783, s. 5; 1973, c. 1329, s. 3; 1977, c. 446, s. 1; 1981, c. 955, s. 1; 1987, c. 783, s. 1; 1991, c. 485, s. 1; 2011-344, s. 4.)
7. § 28A-21-2. Final accounts.
(a) Unless the time for filing the final account has been extended by the clerk of superior court, the personal representative or collector must file the final account for settlement within one year after qualifying or within six months after receiving a State estate or inheritance tax release, or in the time period for filing an annual account pursuant to G.S. 28A-21-1, whichever is later. If no estate or inheritance tax return was required to be filed for the estate, the personal representative or collector shall so certify in the final account filed with the clerk of superior court. Such certification shall list the amount and value of all of the decedent's property, and with respect to real estate, its particular location within or outside the State, including any property transferred by the decedent over which the decedent had retained any interest, or any property transferred within three years prior to the date of the decedent's death, and after being filed and accepted by the clerk of superior court shall be prima facie evidence that such property is free of any State inheritance or State estate tax liability. The personal representative or collector shall produce vouchers for all payments or verified proof for all payments in lieu of vouchers. With the approval of the clerk of superior court, such account may be filed voluntarily at any time. In all cases, the accounting shall be reviewed, audited and recorded by the clerk of superior court in the manner prescribed in G.S. 28A-21-1. (b) Except as provided in subsection (a), after the date specified in the general notice to creditors as provided for in G.S. 28A-14-1, if all of the debts and other claims against the estate of the decedent duly presented and legally owing have been paid in the case of a solvent estate or satisfied pro rata according to applicable statutes in the case of an insolvent estate, the personal representative or collector may file the personal representative's or collector's final account to be reviewed, audited and recorded by the clerk of superior court. Nothing in this subsection shall be construed as limiting the right of the surviving spouse or minor children to file for allowances under G.S. 30-15 through 30-18 and the right of a surviving spouse to file for property rights under G.S. 29-30. (C.C.P., s. 481; Code, s. 1402; Rev., s. 103; C.S., s. 109; 1973, c. 1329, s. 3; 1975, c. 637, s. 5; 1977, c. 446, s. 1; 1979, c. 801, s. 13; 1981, c. 955, s. 2; 1981 (Reg. Sess., 1982), c. 1221, s. 3; 1985, c. 82, s. 3; c. 656, s. 3.1; 1985 (Reg. Sess., 1986), c. 822, s. 3; 1989, c. 770, s. 9; 1999-337, s. 4; 2011-344, s. 4.)
8. Estate Tax Exemption Amount IRS Page
9. Estate and Gift Taxes; IRS Page
Generally, the estate tax return is due nine months after the date of death. A six month extension is available if requested prior to the due date and the estimated correct amount of tax is paid before the due date. The gift tax return is due on April 15th following the year in which the gift is made. https://www.irs.gov/businesses/small-businesses-self-employed/filing-estate-and-gift-tax-returns