What determines that an estate must go to probate?

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What determines that an estate must go to probate?

A close friend recently lost his wife. They had no children. All of their major assets and credit were in both names. The Will stated that if one spouse died before the other, all of the assets would go to the surviving spouse. A lawyer filed the Will with the county and stated that he got an “unreasonable” clerk who is requiring that the estate be probated. Is it possible that probate can be determined on the whim of a clerk who’s having a bad day? As far as I can tell, there is nothing to probate.

Asked on February 28, 2011 under Estate Planning, North Carolina

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am so sorry for your friend's loss.  Generally speaking, assets held as husband and wife pass automatically upon death to the surviving spouse.  It in unusual that an asset would not pass that way.  But, assets that are not jointly held and with rights of survivorship would also pass to her parents or siblings (depending on how the intestacy statute reads) if she died without a Will.  You say here that there is nothing to probate.  You may just need to put an affidavit in to the court stating such since he filed the Will.  Ask to speak with the Judge's law secretary or clerk, who is an attorney themselves and explain the problem.  Good luck.


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