What determines that an estate must go to probate?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
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 13 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.
IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.