Editor's Note. - This Chapter was enacted by Session Laws 1973, c. 1329, which repealed former Chapter 28, Administration, and redesignated former Chapter 28A, Estates of Missing Persons, as Chapter 28C. Where appropriate, historical citations to sections in repealed Chapter 28 have been added to similar sections in Chapter 28A.

Session Laws 1973, c. 1329, originally made effective July 1, 1975, was amended by Session Laws 1975, c. 19, s. 12, so as to make it effective as to estates of decedents dying on and after that date, and by Session Laws 1975, c. 118, so as to change the the date to October 1, 1975.

Many of the cases cited under this Chapter were decided under corresponding sections of former Chapter 28.

ARTICLE 1. Definitions and Other General Provisions.

Sec.

§ 28A-1-1. Definitions.

As used in this Chapter, unless the context otherwise requires, the term:

  1. "Collector" means any person authorized to take possession, custody, or control of the personal property of the decedent for the purpose of executing the duties outlined in G.S. 28A-11-3.
  2. "Devisee" means any person entitled to take real or personal property under the provisions of a valid, probated will.
  3. "Estate proceeding" means a matter initiated by petition related to the administration, distribution, or settlement of an estate, other than a special proceeding. There may be more than one estate proceeding within the administration of a decedent's estate.
  4. "Foreign personal representative" means a personal representative appointed in another jurisdiction, including a personal representative appointed in another country.
  5. "Heir" means any person entitled to take real or personal property upon intestacy under the provisions of Chapter 29 of the General Statutes.
  6. "Mortgage" includes a deed of trust.
  7. "Party," in the context of a contested or uncontested estate proceeding pursuant to G.S. 28A-2-6, means a party joined as a petitioner or respondent.
  8. "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
  9. "Personal representative" includes both an executor and an administrator, but does not include a collector.
  10. Repealed by Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History

(1973, c. 1329, s. 3; 1981, c. 955, c. 4; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, added subdivisions (1b), (4a), and (4b); and deleted subdivision (6), which was the definition for "Service."

Legal Periodicals. - For case law survey on wills and administration, see 41 N.C.L. Rev. 530 (1963).

CASE NOTES

Cited in In re Estate of Bryant, 116 N.C. App. 329, 447 S.E.2d 468 (1994).


§ 28A-1-2: Repealed by Session Laws 1979, c. 88, s. 2.

Cross References. - As to the abolishment of the doctrine of worthier title, see G.S. 41-6.2.

ARTICLE 2. Jurisdiction for Probate of Wills and Administration of Estates of Decedents.

Sec.

§ 28A-2-1. Clerk of superior court.

The clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited to, estate proceedings as provided in G.S. 28A-2-4.

History

(R.C., c. 46, s. 1; C.C.P., s. 433; 1868-9, c. 113, s. 115; Code, s. 1374; Rev., s. 16; C.S., s. 1; 1931, c. 165; 1943, c. 543; 1951, c. 765; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Cross References. - As to suspension, removal and reinstatement of clerk, see G.S. 7A-104.

As to probate of wills generally, see G.S. 28A-2A-1 et seq.

As to clerk's power to remove executors and administrators, see G.S. 28A-9-1.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "including, but not limited to, estate proceedings as provided in G.S. 28A-2-4" for "including, but not limited to, the following"; and deleted subdivisions (1) and (2), which read: "Probate of wills" and "Granting of letters testamentary and of administration, or other proper letters of authority for the administration of estates," respectively.

Legal Periodicals. - For survey of 1976 case law on wills, trusts and estates, see 55 N.C.L. Rev. 1109 (1977).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

History of Clerk's Authority as Judge of Probate. - See In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Jurisdiction Statutory. - The jurisdiction of clerks of court with reference to the administration of estates of deceased persons is altogether statutory, and the clerk's special probate jurisdiction is separate and distinct from his general duties and jurisdiction as clerk. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Jurisdiction Distinct and Separate from General Duties. - Under this section the duties of the probate judge devolve upon the clerk of the superior court, and in such case he has a special jurisdiction which is distinct and separate from his general duties as clerk. Brittain v. Mull, 91 N.C. 498 (1884); Helms v. Austin, 116 N.C. 751, 21 S.E. 556 (1895).

Jurisdiction Exclusive. - Jurisdiction to appoint an administrator of a deceased person, who has died intestate, and to issue letters for the administration of his estate is conferred by this section exclusively upon the clerk of the superior court of the county in which decedent was domiciled at or immediately previous to his death. Central Bank & Trust Co. v. Board of Comm'rs, 195 N.C. 678, 143 S.E. 252 (1928).

This section confers upon the clerk of the superior court exclusive and original jurisdiction of proceedings for the probate of wills. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950); Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956).

Sections 28A-2-1 through 28A-2-3, as did the former law, vest in the clerk of superior court exclusive jurisdiction of the probate of wills, administration, settlement and distribution of the decedents' estates, the granting of letters, testamentary and of administration, or other letters of authority. Unlike the former law, the jurisdiction of the clerk is no longer limited by such considerations as where the decedent died, left property or was domiciled. Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

Except for situations in which the clerk is disqualified to act, G.S. 28A-2-3, the clerk's probate jurisdiction is original and exclusive, and a superior court judge may hear such cases only upon appeal from the clerk. Beck v. Beck, 36 N.C. App. 774, 245 S.E.2d 199 (1978).

In this State, the clerk is given exclusive original jurisdiction of the administration, settlement and distribution of estates except in cases where the clerk is disqualified to act. In re Estate of Snipes, 45 N.C. App. 79, 262 S.E.2d 292 (1980).

Although G.S. 7A-241 provides that exclusive original jurisdiction in probate matters is vested in the "superior court division," this section specifies that the clerk is given exclusive original jurisdiction in the administration of decedents' estates except in cases where the clerk is disqualified to act. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Not Affected by Loss or Destruction of Will Before Probate. - The clerk of the superior court has exclusive original jurisdiction to take proofs of wills of persons dying domiciled within his county, and the jurisdiction of the clerk to take proof of a particular will is not affected by its loss or destruction before probate. Anderson v. Atkinson, 234 N.C. 271, 66 S.E.2d 886 (1951). See Anderson v. Atkinson, 235 N.C. 300, 69 S.E.2d 603 (1952); In re Will of Wood, 240 N.C. 134, 81 S.E.2d 127 (1954).

Later Discovery of Another Document. - Where the clerk of a county had authority, upon proper application and proof, to admit a document to probate as a will, through the exercise of such authority by the admission of the documents to probate, his jurisdiction over the estate becomes exclusive. The subsequent discovery and presentation for probate of another document, executed later, as the last will of the decedent, would not deprive that clerk of the exclusive jurisdiction previously so acquired. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

Exclusive Jurisdiction to Appoint Administrators Lies with Clerk of Superior Court. - A superior court judge lacks jurisdiction to appoint an administrator, because the original and exclusive jurisdiction to appoint administrators lies with the clerk of superior court. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Dispute Over Settlement Agreement Not An Estate Matter. - When petitioner on appeal from an order of the clerk of superior court attacked a prior court decision, there was no merit to her claim that the prior decision was void for lack of subject matter jurisdiction; the trial court had not been addressing an estate matter under G.S. 28A-2-1 but determining whether there were issues of fact about the terms of a settlement agreement following a mediation; it had jurisdiction under G.S. 7A-240 to do this, as it later had jurisdiction to enforce a settlement agreement reached by the parties. In re Estate of Whitaker, 179 N.C. App. 375, 633 S.E.2d 849 (2006).

Powers and Jurisdiction of Independent Tribunal. - The powers and jurisdiction exercised by the clerk pursuant to this section are not those of a servant or ministerial officer or exercised as and for the superior court, but those of an independent tribunal of original jurisdiction. Edwards v. Cobb, 95 N.C. 4 (1886), followed in In re Styers' Estate, 202 N.C. 715, 164 S.E. 123 (1932).

The clerk acts not as the servant or ministerial officer of the superior court or as and for the court, but as an independent tribunal of original jurisdiction. Edwards v. Cobb, 95 N.C. 4 (1886).

The clerk of the superior court is an independent tribunal of original jurisdiction in the exercise of his probate jurisdiction. In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).

The authority to probate a will is vested in the clerk of the superior court, and in the exercise of his probate jurisdiction, the clerk is an independent tribunal of original jurisdiction. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Action of Clerk Stands as That of Court. - The exercise of judicial powers by the "clerk of the court" is the exercise of them by the "court" through the clerk; and the action of the clerk stands as that of the court, if not excepted to and reversed or modified on appeal. Brittain v. Mull, 91 N.C. 498 (1884).

Jurisdiction Over Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against defendant's based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Summary Proceedings. - The proceedings of the clerk in respect to the exercise of his probate jurisdiction are summary in their nature. Edwards v. Cobb, 95 N.C. 4 (1886).

The word "jurisdiction" in this section is used in the sense of assigning original authority to the clerk. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, rev'd on other grounds, 291 N.C. 386, 230 S.E.2d 541 (1976).

Word "jurisdiction" was not intended to change vesting of concurrent jurisdiction in clerk and superior court under G.S. 7A-241. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, rev'd on other grounds, 291 N.C. 386, 230 S.E.2d 541 (1976).

Derivative Jurisdiction of Judge. - In most instances the superior court judge's probate jurisdiction is, in effect, that of an appellate court, because his jurisdiction is derivative and not concurrent. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Allocation of Jurisdiction Between Clerk and Judge. - Section 7A-241 does not say that concurrent jurisdiction in probate matters is vested in the clerk and the judge of the superior court. It says that probate jurisdiction is vested in the superior court division to be exercised by the superior court and the clerk according to the practice and procedure provided by law. The law, that is, the statutes specifying this practice and procedure, has allocated the jurisdiction between the clerk and the judge. By this section the clerk is given exclusive original jurisdiction of "the administration, settlement and distribution of estates of decedents" except in cases where the clerk is disqualified to act under G.S. 28A-2-3. When the clerk is disqualified to exercise his jurisdiction, the judge has equal authority to perform the clerk's probate duties and, in that sense, he exercises concurrent jurisdiction of probate matters. In all other instances, however, the judge's probate jurisdiction is, in effect, that of an appellate court pursuant to G.S. 7A-251. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

G.S. 7A-241 Supports Assignment of Original Authority. - The assignment of original authority of probate matters to the clerk in this section is supported by, and not contravened by, G.S. 7A-241. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, rev'd on other grounds, 291 N.C. 386, 230 S.E.2d 541 (1976).

G.S. 1-276 [see now G.S. 1-301.1 et seq.] Inapplicable on Appeal to Superior Court. - Upon appeal from action taken by the clerk of the superior court, in the exercise of his probate jurisdiction, the jurisdiction of the superior court is derivative, and the provisions of G.S. 1-276 [see now G.S. 1-301.1 et seq.] are not applicable. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Procedure on Appeal from Order of Clerk. - In an appeal from an order of the clerk in a probate matter, the superior court is not required to conduct a de novo hearing. Rather, when a finding of fact by the clerk of court is properly challenged by specific exception, the superior court judge will review those findings, and either affirm, reverse, or modify them. If he deems it advisable, he may submit the issue to a jury, which course he could not follow without hearing evidence. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Action for Breach of Duties, Negligence, and Fraud in Administration of Estate. - In plaintiff's action to recover for breach of fiduciary duties, negligence, and fraud arising from administration of her husband's estate and a trust created under his will, dismissal for want of subject matter jurisdiction on the ground that the claims alleged should be brought initially before the clerk was improper, since the claims were "justiciable matters of a civil nature," original general jurisdiction over which was vested in the trial division, and though the claims arose from administration of an estate, their resolution was not a part of the administration, settlement, or distribution thereof so as to make jurisdiction properly exercisable initially by the clerk; moreover, inclusion by plaintiff in her complaint of matters of which should have been brought initially before the clerk did not require dismissal for want of subject matter jurisdiction of the entire action. Ingle v. Allen, 53 N.C. App. 627, 281 S.E.2d 406 (1981); Ingle v. Allen, 69 N.C. App. 192, 317 S.E.2d 1, cert. denied, 311 N.C. 757, 321 S.E.2d 135 (1984).

Clerk Had Jurisdiction. - North Carolina letters of administration were valid when issued by a clerk for a county under G.S. 28A-6-1(a), as an ancillary administration was later commenced in another state; thus, the clerk had jurisdiction over the estate under G.S. 28A-2-1. In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009).

Clerk Had Jurisdiction. - Judgment granting defendant administrator's motion to dismiss for lack of subject matter jurisdiction over the declaratory judgment action was affirmed where (1) plaintiff's action involved claims for offsets against certain creditors' claims against the estate and her assertions that various claims by creditors were collectable from the Family Trust; (2) plaintiff also sought protection of her contributions to the Family Trust and contended that the estate's assets should be marshaled by defendant so that he could provide an accounting; and (3) these issues were "a part of" the administration of the estate and were thus properly handled by the clerk. Livesay v. Carolina First Bank, 200 N.C. App. 306, 683 S.E.2d 453 (2009), review denied, 363 N.C. 805, - S.E.2d - (2010).

Clerk Had No Jurisdiction Over Property. - Pertinent parts of an estate order were void and had no legal effect on a foreclosure action because the clerk of court had no jurisdiction over the property which was not part of an estate and a court erred in ordering that a deed of trust, which secured property outside the estate, was cancelled. In re Foreclosure of the Deed of Trust from Manning, 228 N.C. App. 591, 747 S.E.2d 286 (2013).

Applied in In re Estate of Hodgin, 133 N.C. App. 650, 516 S.E.2d 174 (1999).

Cited in State ex rel. Pilard v. Berninger, 154 N.C. App. 45, 571 S.E.2d 836 (2002), cert. denied, 356 N.C. 694, 579 S.E.2d 100 (2003); In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

II. PROBATE OF WILLS.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Original Jurisdiction Vested in Clerk. - Original jurisdiction of proceedings to probate a will is vested in the clerk. In re Will of Belvin, 261 N.C. 275, 134 S.E.2d 225 (1964).

Probate May Not Be Denied on Ground Involving Construction. - The clerk has no right to exclude any part of a will from probate on any ground which involves the construction of the will where testamentary intent is disclosed. Ravenel v. Shipman, 271 N.C. 193, 155 S.E.2d 484 (1967).

Existence of Will Cannot Be Determined in Ordinary Civil Action. - The issue of whether an unprobated script is, or is not, a man's last will cannot be properly brought before the superior court for determination in an ordinary civil action. Anderson v. Atkinson, 234 N.C. 271, 66 S.E.2d 886 (1951). See Anderson v. Atkinson, 235 N.C. 300, 69 S.E.2d 603 (1952).

Unless Answer Denies Averment That Script Offered Is Decedent's Will. - Where the respondents filed answer denying the petitioner's averment that the script offered for probate was the last will and testament of the decedent, such denial raised an issue of devisavit vel non and necessitated transfer of the cause to the civil issue docket for trial by jury, in accordance with G.S. 1-273 [see now G.S. 1-301.1 et seq.]. This being so, jurisdiction to determine the whole matter in controversy, as well as the issue of devisavit vel non, passed to the superior court in term by authority of G.S. 1-276 [see now G.S. 1-301.1 et seq.]. In re Will of Wood, 240 N.C. 134, 81 S.E.2d 127 (1954).

Dissent to Will. - The right, time and manner, and effect of the filing and recording of a dissent to a will are all matters within the probate jurisdiction of the clerk. In re Estate of Snipes, 45 N.C. App. 79, 262 S.E.2d 292 (1980).

Exclusive original jurisdiction to determine the validity of a dissent by a surviving spouse to a will of a deceased spouse lies with the clerk of superior court. Greene v. Lynch, 51 N.C. App. 665, 277 S.E.2d 454 (1981).

Power to Set Aside Probate. - The clerk of the superior court has the power to set aside a probate of a will in common form in a proper case. This power can be exercised by the clerk where it is clearly made to appear that the adjudication and orders have been improvidently granted or that the court was imposed upon or misled as to the essential and true conditions existent in a given case. However, this power of the clerk does not extend to the setting aside of the probate of a will in common form upon grounds which should be raised by caveat. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Procedure Where Jurisdictional Requirements Lacking. - When jurisdictional requirements for probate are shown to be lacking, the clerk may revoke his order admitting the document to probate. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

Motion to Set Aside Probate. - Since the clerk of the superior court of each county has original and exclusive jurisdiction of proceedings to probate a will, he is the tribunal to which a motion is properly made to set aside the probate of a purported will - or part thereof - for any inherent and fatal defect appearing upon the face of the instrument. Ravenel v. Shipman, 271 N.C. 193, 155 S.E.2d 484 (1967).

Clerk May Vacate Order Admitting Will to Probate. - The clerk of the superior court, in his probate jurisdiction, has the power to vacate a previous order admitting a will to probate in common form on motion aptly made, when it is clearly made to appear that the order of probate was improvidently granted, or that the court had been imposed upon and misled as to the essential and true conditions of the case. In re Smith's Will, 218 N.C. 161, 10 S.E.2d 676 (1940).

The burden of proof on a motion to vacate a probate is on the movants to establish sufficient grounds to set aside the probate. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

III. LETTERS TESTAMENTARY AND OF ADMINISTRATION.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Jurisdiction Invoked by Petition. - The jurisdiction of the clerk as probate judge is invoked by petition disclosing the requisite jurisdictional facts filed by some person entitled to qualify as executor or administrator. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649 (1950).

When Jurisdiction Presumed. - Where it is admitted that the plaintiff was regularly appointed administrator, it will be presumed that the clerk acted within his jurisdiction. Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905).

Authority to Appoint Administrator Is Limited. - See In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964).

More Than One Appointment. - When letters of administration are once issued to a person who qualified, the powers of the clerk in that respect are exhausted and the subsequent appointment of another person, before the first appointment is revoked, is void. In re Bowman's Estate, 121 N.C. 373, 28 S.E. 404 (1897).

The burden of proof to show jurisdictional facts rests upon the person applying for letters. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919).

May Adjudge Person Dead After Absence for Seven Years. - While the death of intestate must be established as a jurisdictional fact to empower the clerk of the superior court to issue letters of administration, the clerk may, upon evidence that a person has been absent from his domicile for seven years without being heard from by those who would be expected to hear from him, if living, adjudge that such person is dead and appoint an administrator of his estate. Carter v. Lilley, 227 N.C. 435, 42 S.E.2d 610 (1947).

Amendment to Substitute Proper Party Relates Back. - Under G.S. 1A-1, Rule 15(a) and (c) and G.S. 1A-1, Rule 17(a), a lack of letters of administration may be cured, and an objection to want of capacity to sue may be avoided by amendment or by substitution of the proper party at any time before hearing. Later appointments of this nature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971).

Where a complaint to recover damages under a state wrongful death act was timely filed by an ancillary administrator appointed by a state court without jurisdiction to do so, the complaint could be amended under G.S. 1A-1, Rule 17(a) at a time when a new suit would be barred so as to allege the subsequent effective appointment of the same person as ancillary administrator by a state court having jurisdiction. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971).

Petition for Authority to Operate Estate's Farm. - Although the clerks of the superior courts have no equity jurisdiction, they are given probate jurisdiction by this section, and in the exercise of their probate jurisdiction they may hear and rule on a petition of an executor for authorization to operate the estate's farms to preserve the property pending the determination of caveat proceedings. C.L. Hardy & Co. v. Turnage, 204 N.C. 538, 168 S.E. 823 (1933).

Removal of Executors and Administrators. - The clerks of superior courts have jurisdiction of proceedings for the removal of executors and administrators. Edwards v. Cobb, 95 N.C. 4 (1886).

Direct Attack on Validity of Appointment. - The validity of the appointment of an administrator may not be collaterally attacked in an action against such administrator, but may be directly attacked by any person in interest, including an administratrix of the decedent appointed in another state, by motion before the clerk of the superior court who made the appointment to vacate and set aside the letters of administration theretofore issued by such clerk. King v. Snyder, 269 N.C. 148, 152 S.E.2d 92 (1967).

Collateral Attack. - When the clerk under this section has general jurisdiction of the subject matter of the inquiry, a decree appointing an executor or administrator may not be collaterally attacked. Fann v. North Carolina R.R., 155 N.C. 136, 71 S.E. 81 (1911); Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20 (1912); Tyer v. J.B. Blades Lumber Co., 188 N.C. 268, 124 S.E. 305 (1924). See Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905).

Where jurisdictional facts are lacking, a decree appointing an executor or administrator can be collaterally attacked. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919). See Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905).

The facts very generally recognized as jurisdictional are stated in this section, and where, on application for letters of administration, these facts appear of record, the question of the qualification of the appointee cannot be collaterally assailed. Wharton v. New York Life Ins. Co., 178 N.C. 135, 100 S.E. 266 (1919).

The only exception to the rule that the question of the qualification of the appointee cannot be collaterally assailed where facts very generally recognized as jurisdictional appear of record is that it may be shown collaterally that the person for whom an administrator has been appointed is not in fact dead, but is still living. Hines v. Foundation Co., 196 N.C. 322, 145 S.E. 612 (1928).

Where the person for whom an administrator has been appointed is not in fact dead, but is still living, the order making the appointment is void, and it may be attacked collaterally. Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93 (1927), citing Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20 (1925).

A clerk has jurisdiction to appoint an administrator where the affidavit of the applicant presumes the death of the decedent from his absence of seven years and the lack of communication from him. The order and appointment can only be avoided by showing the person not to be in fact dead. Chamblee v. Security Nat'l Bank, 211 N.C. 48, 188 S.E. 632 (1936).

Administrator Defending Wrongful Death Action Estopped to Deny Validity of Appointment. - An administrator appointed in this State who undertakes to defend an action for wrongful death by moving to set aside a default judgment and filing answer is thereafter estopped to deny the validity of his own appointment, and the court correctly denies his motion to dismiss the action for lack of jurisdiction of his person or the estate. The validity of his appointment is not before the court, and it is error for the court to find facts in regard thereto. King v. Snyder, 269 N.C. 148, 152 S.E.2d 92 (1967).


§ 28A-2-2. Assistant clerk of superior court.

An assistant clerk of superior court shall have jurisdiction as provided by G.S. 7A-102.

History

(1973, c. 1329, s. 3.)

§ 28A-2-3. Jurisdiction where clerk interested.

Whenever the clerk of superior court is a subscribing witness to a will offered for probate in the clerk's county or has an interest, direct or indirect, in an estate or trust within the clerk's jurisdiction, jurisdiction with respect thereto shall be vested in the senior resident superior court judge of the clerk's district, and shall extend to all things which the clerk of superior court might have done in the administration of such estate.

History

(R.C., c. 46, s. 1; C.C.P., s. 433; 1868-9, c. 113, s. 115; Code, s. 1374; Rev., s. 16; C.S., s. 1; 1931, c. 165; 1943, c. 543; 1951, c. 765; 1973, c. 1329, s. 3; 1975, c. 300, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the clerk's" for "his" in three places.

CASE NOTES

Applicability. - Because the clerk has exclusive jurisdiction in a special proceeding to administer estates, the portion of a summary judgment order declaring that plaintiff was entitled to take from a decedent's estate was subject to reversal. Swint v. Doe, 265 N.C. App. 104, 827 S.E.2d 309 (2019).

Applied in Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988).

Cited in In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976); Beck v. Beck, 36 N.C. App. 774, 245 S.E.2d 199 (1978).


§ 28A-2-4. Subject matter jurisdiction of the clerk of superior court in estate proceedings.

  1. The clerks of superior court of this State, as ex officio judges of probate, shall have original jurisdiction of estate proceedings. Except as provided in subdivision (4) of this subsection, the jurisdiction of the clerk of superior court is exclusive. Estate proceedings include, but are not limited to, the following:
    1. Probate of wills.
    2. Granting and revoking of letters testamentary and letters of administration, or other proper letters of authority for the administration of estates.
    3. Determination of the elective share for a surviving spouse as provided in G.S. 30-3.1.
    4. Proceedings to ascertain heirs or devisees, to approve settlement agreements pursuant to G.S. 28A-2-10, to determine questions of construction of wills, to determine priority among creditors, to determine whether a person is in possession of property belonging to an estate, to order the recovery of property of the estate in possession of third parties, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right. Any party or the clerk of superior court may file a notice of transfer of a proceeding pursuant to this subdivision to the Superior Court Division of the General Court of Justice as provided in G.S. 28A-2-6(h). In the absence of a transfer to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to an estate proceeding pending before the clerk of superior court to the extent consistent with this Article.
  2. Nothing in this section shall affect the right of a person to file an action in the Superior Court Division of the General Court of Justice for declaratory relief under Article 26 of Chapter 1 of the General Statutes. In the event that either the petitioner or the respondent in an estate proceeding requests declaratory relief under Article 26 of Chapter 1 of the General Statutes, either party may move for a transfer of the proceeding to the Superior Court Division of the General Court of Justice as provided in Article 21 of Chapter 7A of the General Statutes. In the absence of a removal to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to an estate proceeding to the extent consistent with this Article.
  3. Without otherwise limiting the jurisdiction of the Superior Court Division of the General Court of Justice, the clerk of superior court shall not have jurisdiction under subsection (a) or (b) of this section or G.S. 28A-2-5 of the following:
    1. Actions by or against creditors or debtors of an estate, except as provided in Article 19 of this Chapter.
    2. Actions involving claims for monetary damages, including claims for breach of fiduciary duty, fraud, and negligence.
    3. Caveats, except as provided under G.S. 31-36.
    4. Proceeding to determine proper county of venue as provided in G.S. 28A-3-2.
    5. Recovery of property transferred or conveyed by a decedent with intent to hinder, delay, or defraud creditors, pursuant to G.S. 28A-15-10(b).
    6. Actions for reformation or modification of wills under Article 10 of Chapter 31 of the General Statutes.

History

(2011-344, s. 4; 2012-194, s. 12; 2017-102, s. 9; 2017-152, ss. 2(a), 3; 2019-243, s. 23.)

Editor's Note. - Session Laws 2017-152, s. 6 made subdivision (c)(6) of this section as enacted by Session Laws 2017-152, s. 3, effective January 1, 2018, and applicable to estates of decedents dying before, on, or after that date.

Effect of Amendments. - Session Laws 2012-194, s. 12, effective July 17, 2012, deleted "family" preceding "settlement" in subdivision (a)(4).

Session Laws 2017-102, s. 9, effective July 12, 2017, substituted "an estate" for "a trust" near the end of subdivision (a)(4); and substituted "subsection (a) or (b) of this section or G.S. 28A-2-5 of the following:" for "subsection (a) or (c) of this section of the following:" in subsection (c). The changes made to the section by Session Laws 2017-102 and 2017-152, s. 2(a), were identical.

Session Laws 2017-152, s. 2(a), effective July 20, 2017, substituted "an estate" for "a trust" near the end of subdivision (a)(4); and substituted "subsection (a) or (b) of this section or G.S. 28A-2-5 of the following:" for "subsection (a) or (c) of this section of the following:" in subsection (c). The changes made to the section by Session Laws 2017-102 and 2017-152, s. 2(a), were identical.

Session Laws 2017-152, s. 3, added subdivision (c)(6). For effective date and applicability, see editor's note.

Session Laws 2019-243, s. 23, effective November 6, 2019, substituted "G.S. 30-3.1" for "G.S. 30-3" in subdivision (a)(3).

§ 28A-2-5. Subject matter jurisdiction of the clerk of superior court in special proceedings.

The clerk of superior court also shall have jurisdiction over special proceedings, including, but not limited to, the following:

  1. Special proceedings to obtain possession, custody, or control of assets as provided in G.S. 28A-13-3.
  2. Special proceedings relating to the sale, lease, or mortgage of real estate as provided in G.S. 28A-15-1 and in G.S. 28A-17-1.
  3. Special proceedings against unknown heirs before distribution of estate as provided in G.S. 28A-22-3.

Nothing in this section shall be deemed to limit the jurisdiction of the clerk of superior court in special proceedings.

History

(2011-344, s. 4.)

§ 28A-2-6. Commencement of estate proceedings, pleadings, consolidation, and joinder.

  1. Contested Estate Proceedings. - Contested estate proceedings brought against adverse parties shall be commenced by petition in the existing estate administration file. All parties not joined as petitioners shall be joined as respondents. The clerk of superior court shall issue the estate proceeding summons to the respondents. The clerk of superior court may order that additional persons be joined as respondents and shall issue the estate proceeding summons to the additional persons. The estate proceeding summons shall notify a respondent to appear and answer the petition within 20 days after its service upon the respondents. The estate proceeding summons shall comply with the requirements set forth in G.S. 1-394 for a special proceeding summons except that the summons shall be titled "ESTATE PROCEEDING SUMMONS" and shall be served upon a respondent in accordance with G.S. 1A-1, Rule 4. After the time for responding to the petition or complaint has expired, any party or the clerk of superior court may give notice to all parties of a hearing.
  2. Uncontested Estate Proceedings. - Estate proceedings before the clerk of superior court that are uncontested may be decided without hearing according to practice and procedure provided by law and shall be commenced by the filing of a petition, setting forth the facts entitling the petitioners to relief and the nature of the relief demanded. In these proceedings, the clerk of superior court may hear and decide the petition summarily.
  3. Pleadings. - Any petition, response, or request for hearing in a contested estate proceeding before the clerk of superior court shall contain a short and plain statement of the claim that is sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions intended to be proved showing that the pleaders are entitled to relief, and a demand for judgment for the relief to which the pleader is entitled. Each averment should be simple, concise, and direct. No technical forms of motions or responses are required. A party may set forth two or more statements of a claim or defense alternatively or hypothetically. The signature of an attorney or party constitutes a certificate by that attorney or party that (i) the attorney or party has read the pleading, motion, or other paper; (ii) to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. All motions, responses, and requests for hearing shall be so construed as to do substantial justice.
  4. Extensions of Time. - The clerk of superior court, for cause shown at any time in the clerk's discretion, with or without motion or notice, may enter an order enlarging the period of time within which an act is required or permitted in an estate proceeding, by any applicable rule of G.S. 1A-1, the Rules of Civil Procedure, or by order of the court, if the request is made before the expiration of the period originally prescribed, but not to exceed 10 days, provided that the court can enlarge the time for a period of more than 10 days for good cause shown, but only to the extent that the court in its discretion determines that justice requires. Upon motion made after the expiration of the specified period, the clerk of superior court may permit the act where the failure to act was the result of excusable neglect. Notwithstanding any other provision of this subsection, the parties to a proceeding may enter into binding stipulations, without approval of the clerk of superior court, enlarging the time within which an act is required or permitted by this Article, by any applicable Rules of Civil Procedure or by order of the court, not to exceed 30 days.
  5. Rules of Civil Procedure. - Unless the clerk of superior court otherwise directs, Rules 4, 5, 6(a), 6(d), 6(e), 18, 19, 20, 21, 24, 45, 52(b), 56, 58, 59, and 65 of G.S. 1A-1, the Rules of Civil Procedure, shall apply to estate proceedings. Upon motion of a party or the clerk of superior court, the clerk may further direct that any or all of the remaining Rules of Civil Procedure shall apply, including, without limitation, discovery rules; however, nothing in Rule 17 requires the appointment of a guardian ad litem for a party represented except as provided in G.S. 28A-2-7. In applying these Rules to an estate proceeding pending before the clerk of superior court, the term "judge" shall mean "clerk of superior court."
  6. Consolidation. - When an estate proceeding pending before the clerk of superior court and a civil action pending before the Superior Court Division of the General Court of Justice involve a common question of law or fact, upon the court's motion or motion of a party to either the estate proceeding or the civil action, a superior court judge may order a consolidation of the estate proceeding and civil action, and the judge may make orders concerning proceedings therein as may tend to avoid unnecessary cost or delay. Upon the entry of an order consolidating an estate proceeding and civil action, the jurisdiction for all matters pending in both the estate proceeding and the civil action shall be vested in the superior court.
  7. Joinder. - In any civil action pending before the Superior Court Division of the General Court of Justice, the party asserting a claim for relief as an original claim, counterclaim, crossclaim, or third-party claim may join, either as independent or alternative claims, as many claims, legal or equitable, as the party may have against the opposing party, notwithstanding the fact that such claims may otherwise be within the exclusive jurisdiction of the clerk of superior court.
  8. Notice of Transfer. - A notice to transfer an estate proceeding brought pursuant to G.S. 28A-2-4(a)(4) must be served within 30 days after the moving party is served with a copy of the pleading requesting relief pursuant to G.S. 28A-2-4(a)(4), or in the case of the clerk of superior court, prior to or at the first hearing duly noticed in the estate proceeding and prior to the presentation of evidence by the parties, including a hearing at which an order of continuance is entered. Failure to timely serve a notice of transfer of an estate proceeding is a waiver of any objection to the clerk of superior court's exercise of jurisdiction over the estate proceeding then pending before the clerk. When a notice of transfer is duly served and filed, the clerk shall transfer the proceeding to the appropriate court. The proceeding after the transfer is subject to the provisions of the General Statutes and to the rules that apply to actions initially filed in the court to which the proceeding was transferred.
  9. Orders Upon Consolidation/Joinder/Transfer. - Upon the consolidation of an estate proceeding in a civil action, joinder of claims under subsection (f) or (g) of this section, or transfer to the Superior Court Division of the General Court of Justice pursuant to subsection (h) of this section, the clerk of superior court or judge may make appropriate orders to protect the interest of the parties and avoid unnecessary cost or delay. Notwithstanding the consolidation or joinder of claims under subsection (f) or (g) of this section, where the estate proceeding is transferred to the Superior Court Division of the General Court of Justice under subsection (h) of this section, the clerk of superior court's exclusive jurisdiction as set forth in G.S. 28A-2-4(a)(1) through (3) shall not be stayed unless so ordered by the court.

History

(2011-344, s. 4; 2013-410, s. 6; 2020-69, s. 1.5; 2021-53, s. 3.2.)

Editor's Note. - Session Laws 2021-53, s. 3.6, made the amendments to subsection (e) of this section by Session Laws 2021-53, s. 3.2, effective October 1, 2021, and applicable to proceedings initiated on or after that date.

Session Laws 2021-53, s. 5.1, contains a severability clause.

Effect of Amendments. - Session Laws 2013-410, s. 6, effective August 23, 2013, substituted "Rules 4, 5" for "Rules 4.5" in the middle of the first sentence of subsection (e).

Session Laws 2020-69, s. 1.5, effective July 1, 2020, in subsection (h), in the second sentence, substituted "an estate" for "a trust" and "estate" for "trust," and made a minor stylistic change.

Session Laws 2021-53, s. 3.2, inserted "52(b)" and "58, 59" in subsection (e). For effective date and applicability, see editor's note.

§ 28A-2-7. Representation of parties.

  1. Notwithstanding any other applicable rule of the Rules of Civil Procedure or provision of Chapter 1 of the General Statutes, in any contested or uncontested estate proceeding or special proceeding, whether brought before the clerk of superior court or in the Superior Court Division of the General Court of Justice, the parties shall be represented as provided in Article 3 of Chapter 36C of the General Statutes.
  2. In the case of any party represented by another as provided in subsection (a) of this section, service of process shall be made by serving such representative.

History

(2011-344, s. 4.)

§ 28A-2-8. Waiver of notice.

A party, or a representative of a party as provided in G.S. 28A-2-7, may waive notice by a writing signed by the party, the representative, or the attorney of the party or the representative and filed in the proceeding.

History

(2011-344, s. 4.)

§ 28A-2-9. Appeals of estate proceedings and special proceedings.

  1. With the exception of appeals of special proceedings heard by the clerk of superior court, appeals in estate matters shall be as provided in G.S. 1-301.3.
  2. Appeals in special proceedings shall be as provided in G.S. 1-301.2.
  3. Any party may appeal from a decision of the clerk of superior court in an estate proceeding or special proceeding to a superior court judge as provided for in G.S. 1-301.3; provided that the appeals from orders of the clerk of superior court in special proceedings shall be as provided in G.S. 1-301.2.

History

(2011-344, s. 4.)

CASE NOTES

Hearing De Novo. - Clerk's order reviewing a clerk's order denying a widow's petition for revocation of letters testamentary granted to an executor was vacated because a de novo hearing was statutorily required, but none was conducted. In re Estate of Johnson, 264 N.C. App. 27, 824 S.E.2d 857 (2019).


§ 28A-2-10. Approval of settlement agreements by the clerk.

The clerk shall have the authority, in the clerk's discretion, to consider and approve settlement agreements where the following apply:

  1. The controversy arises with respect to a matter over which the clerk has jurisdiction.
  2. The controversy arose in good faith.

Nothing herein shall be construed as giving a clerk the authority to approve a settlement agreement modifying the terms of a last will and testament or resolving a caveat of a last will and testament.

History

(2011-344, s. 4.)

ARTICLE 2A. Probate of Will.

Sec.

§ 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.

History

(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.)

Cross References. - As to disqualification of clerk, see G.S. 7A-104.

As to jurisdiction with respect to an estate or trust where the clerk otherwise having jurisdiction is a subscribing witness to the will or has an interest in the estate or trust, see G.S. 28A-2-3.

As to rights of innocent purchasers when will withheld from probate, see G.S. 31-39.

Notes Applicable to Entire Article. - Session Laws 2011-344, s. 3, recodified former Article 5 of Chapter 31 of the General Statutes, G.S. 31-12 through 31-31.2, as Article 2A of Chapter 28A of the General Statutes, G.S. 28A-2A-1 through 28A-2A-23. Historical citations to sections in the former article have been added to the corresponding sections in this Article. Some of the cases cited in the notes to the sections of this Article construe similar provisions of the former Article.

Editor's Note. - This section was formerly G.S. 31-12. It was recodified as G.S. 28A-2A-1 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2012-68, s. 1, effective October 1, 2012, substituted "the will" for "the same" in the first sentence, and deleted the former second and third sentences, which read: "Such will shall not be valid or effective to pass real estate or personal property as against innocent purchasers for value and without notice, unless it is probated or offered for probate within two years after the death of the testator or devisor or prior to the time of approval of the final account of a duly appointed administrator of the estate of the deceased, whichever time is earlier. If such will is fraudulently suppressed, stolen or destroyed, or has been lost, and an action or proceeding shall be commenced within two years from the death of the testator or devisor to obtain said will or establish the same as provided by law, then the limitation herein set out shall only begin to run from the termination of said action or proceeding, but not otherwise". For applicability, see Editor's note.

Legal Periodicals. - As to purpose of 1921 and 1923 amendments to this section, see 1 N.C.L. Rev. 314 (1923).

For note on "Two Methods of Probate in Solemn Form in North Carolina," see 30 N.C.L. Rev. 470 (1952).

For note as to procedure for probate upon death of survivor of testators of joint will, see 35 N.C.L. Rev. 345 (1957).

For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

CASE NOTES

This section and G.S. 31-15 (now G.S. 28A-2A-4) require the probate of a will, by implication at least. Wells v. Odum, 207 N.C. 226, 176 S.E. 563 (1934).

The word "probate" when used in reference to a document purporting to be a will means the judicial process by which a court of competent jurisdiction in a duly constituted proceeding tests the validity of the instrument before the court, and ascertains whether or not it is the last will of the deceased. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963); In re Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).

It is the duty of a person named as executor to apply to the court having jurisdiction to have the writing probated. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Jurisdiction of Clerk. - This section confers upon the clerk of the superior court exclusive and original jurisdiction of proceedings for the probate of wills. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950); Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956).

The clerk of the superior court has exclusive and original jurisdiction over the probate of wills. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

Title Descends to Heirs Subject to Being Divested. - The title of the land descends to the heirs of the testator, subject to being divested in favor of the devisee, when the will is duly admitted to probate. Floyd v. Herring, 64 N.C. 409 (1870).

Citation to those in interest is not necessary to the probate of a will in common form, the proceeding being ex parte, and when probated the paper-writing is valid and operative as a will and may not be attacked collaterally. In re Rowland, 202 N.C. 373, 162 S.E. 897 (1932). See In re Will of Etheridge, 231 N.C. 502, 57 S.E.2d 768 (1950).

The probate of a will in common form without citation to those in interest "to see the proceedings," is an ex parte proceeding and not binding on caveators upon the issue of devisavit vel non raised in their direct attack upon the validity of the will, and the admission in evidence in the caveat proceedings of the order of probate constitutes reversible error. Wells v. Odum, 205 N.C. 110, 170 S.E. 145 (1933). See also In re Will of Etheridge, 231 N.C. 502, 57 S.E.2d 768 (1950).

Appointment Is Reviewable. - The power, conferred by this section, to appoint administrators is reviewable by the judge of the superior court of the county. In re Estate of Wright, 200 N.C. 620, 158 S.E. 192 (1931).

Limitation on Probate under Former Law. - See McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971 (1892); Steadman v. Steadman, 143 N.C. 345, 55 S.E. 784 (1906).

Primary object in interpreting a will is to give effect to the intention of the testator. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Presumption Against Intestacy. - It is a long-standing policy of the State of North Carolina to construe a will with the presumption that the testator did not intend to die intestate with respect to any part of his property. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Cited in In re Will of Wood, 240 N.C. 134, 81 S.E.2d 127 (1954); In re Will of Covington, 252 N.C. 551, 114 S.E.2d 261 (1960); In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970); Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 518 S.E.2d 205 (1999), cert. denied, 351 N.C. 186, 541 S.E.2d 709 (1999).


§ 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.

History

(C.C.P., s. 440; Code, s. 2152; Rev., s. 3123; C.S., s. 4140; 2011-284, s. 27; 2011-344, ss. 3, 4.)

Cross References. - As to who may apply for letters of administration in case of intestacy, see G.S. 28A-4-1 and G.S. 28A-4-2.

Editor's Note. - This section was formerly G.S. 31-13. It was recodified as G.S. 28A-2A-2 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-284, s. 27, effective June 24, 2011, deleted "or legatee" following "devisee."

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "applies" for "apply" in the first sentence, and added the last sentence.

CASE NOTES

"Persons Interested in the Estate." - It is obvious from this section that the classification of a "person interested in the estate" includes persons who are neither devisees nor legatees. It is broad enough to include even a person whose interest in the estate is in opposition to the will. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

The designation of a person who exhibited a document for probate as "one of the executors therein named," though inaccurate, is not an affirmative showing that he was not a "person interested in the estate" and, therefore, does not show affirmatively that the document was presented for probate by a person not authorized by this section to do so. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

Death of Only Executor Named in Will before Testator. - Where the only executor named in the will has died before the testator, this section does not require another person "interested in the estate" to wait 60 days before applying to the clerk for the probate of the will. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

Notice to Executor in Probating a Codicil. - Where an executor has probated and qualified under the will, it is equally necessary to give the statutory notice before offering for probate a separate paper-writing as a codicil. Spencer v. Spencer, 163 N.C. 83, 79 S.E. 291 (1913).

Presenting for Probate Merely to Secure Adjudication of Invalidity. - This section permits a person interested in the estate of a supposed testator to present an alleged will for probate merely for the purpose of obtaining an adjudication of its invalidity. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950); In re Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).

This section empowers any person interested in the estate of a decedent to make application to have a script purporting to be the will of such decedent "proved," i.e., tested in respect to its validity as a testamentary instrument. It is obvious that the clause "any . . . person interested in the estate" includes a person who will share in the estate under the law governing intestacy in case a script which purports to be the will of the deceased is adjudged invalid as a testamentary document. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950).

Cited in In re Brauff's Will, 247 N.C. 92, 100 S.E.2d 254 (1957); In re Pendergrass' Will, 251 N.C. 737, 112 S.E.2d 562 (1960); In re Will of Covington, 252 N.C. 551, 114 S.E.2d 261 (1960).


§ 28A-2A-3. Clerk to notify devisees of probate of wills.

The clerks of the superior court of the State are hereby required and directed to notify by mail, all devisees whose addresses are known, designated in wills filed for probate in their respective counties. All expense incident to such notification shall be deemed a proper charge in the administration of the respective estates.

History

(1933, c. 133; 2011-284, s. 28; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-14. It was recodified as G.S. 28A-2A-3 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-284, s. 28, effective June 24, 2011, in the section catchline and in text, deleted "legatees and" preceding "devisees."

Legal Periodicals. - For comment on section, see 11 N.C.L. Rev. 263 (1933).

§ 28A-2A-4. Clerk shall compel production of will.

Every clerk of the superior court having jurisdiction, on application by affidavit setting forth the facts, shall, by summons, compel any person in the State, having in possession the last will of any decedent, to exhibit the same in his court for probate; and whoever being duly summoned refuses, in contempt of the court, to produce such will, or (the same having been parted with by him) refuses to inform the court on oath where such will is, or in what manner he has disposed of it, shall, by order of the clerk of the superior court, be committed to the jail of the county, there to remain without bail till such will be produced or accounted for, and due submission made for the contempt.

History

(C.C.P., s. 442; Code, s. 2154; Rev., s. 3124; C.S., s. 4141; 2011-344, ss. 3, 4.)

Cross References. - As to larceny, concealment, or destruction of wills, see G.S. 14-77.

Editor's Note. - This section was formerly G.S. 31-15. It was recodified as G.S. 28A-2A-4 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "shall compel" for "may compel" in the section catchline.

Legal Periodicals. - For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

CASE NOTES

It is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at according to the orderly process of law. In re Pendergrass' Will, 251 N.C. 737, 112 S.E.2d 562 (1960).

Enforcement of Right to Dispose of Property. - The legislature, when it granted the right to dispose of property at death, provided for the enforcement of that right under this section. In re Will of Covington, 252 N.C. 546, 114 S.E.2d 257 (1960).

Compelling Production of Fraudulently Withheld Will. - A petition before the clerk of the superior court alleging that the respondents were in possession of a later will than that probated in another county, and that the petitioner was withholding this will for fraudulent purposes, etc., is a proceeding under this section to compel the production of a will. Williams v. Bailey, 177 N.C. 37, 97 S.E. 721 (1919).

Issue of Wrong Venue No Excuse. - Where the clerk of the court of G county issued a notice to the respondent, who had the will of the deceased in his possession, to exhibit the same for probate, it was the duty of the respondent to obey the summons, and he could have raised in his answer the question of whether the will should be probated in G or L county. In re Scarborough's Will, 139 N.C. 423, 51 S.E. 931 (1905).

Impossibility to Comply with Order as Excuse. - An order of the clerk of the court of G county which adjudges the respondent guilty of contempt and that he be committed to jail, until such will was produced, was properly reversed on appeal where it appears that the respondent cannot comply with the condition upon which he might be discharged, because the clerk of L county now has custody of the will and has refused to surrender it to the respondent. In re Scarborough's Will, 139 N.C. 423, 51 S.E. 931 (1905).

Allowance of Reasonable Expenses. - Where the law imposes a duty upon a person, or group of persons, with respect to probating and establishing the validity of a will, in the performance of such duty, in good faith, reasonable expenses thereby incurred should be allowed and paid out of the fund or property which is the subject of the litigation. Wells v. Odum, 207 N.C. 226, 176 S.E. 563 (1934).

Scope of Proceedings on Attachment for Contempt. - In a proceeding to attach the respondent for contempt in not producing for probate a will, the question whether the will should be probated in G or L county is not presented and cannot be passed upon. In re Scarborough's Will, 139 N.C. 423, 51 S.E. 931 (1905).

Motion to Dismiss Proceedings. - Where a rule issued under this section in proceedings to compel the production of a will should be discharged, a motion by the respondents to dismiss the proceedings will be treated as a motion to discharge them. Williams v. Bailey, 177 N.C. 37, 97 S.E. 721 (1919).

Discharge of Respondents on Failure of Petitioners to Pursue Proceedings. - Where the respondents in proceedings to compel the production of a will appear before the clerk at the time set for the hearing, and in writing under oath fully deny the charges made, and the petitioners neither file reply, offer evidence, nor request an examination, no issues are raised requiring the matter to be transferred to the trial docket, and the rule against the respondents should be discharged at the petitioner's cost. Williams v. Bailey, 177 N.C. 37, 97 S.E. 721 (1919).

Applied in In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).


§ 28A-2A-5. What shown on application for probate.

On application to the clerk of the superior court, he must ascertain by affidavit of the applicant -

  1. That such applicant is the  executor or devisee named in the will, or is some other person interested in the estate, and how so interested.
  2. The value and nature of the testator's property, as near as can be ascertained.
  3. The names and residences of all parties entitled to the testator's property, if known, or that the same on diligent inquiry cannot be discovered; which of the parties in interest are minors, and whether with or without guardians, and the names and residences of such guardians, if known.

Such affidavit shall be recorded with the will and the certificate of probate thereof, if the same is admitted to probate.

History

(C.C.P., s. 441; Code, s. 2153; Rev., s. 3125; C.S., s. 4142; 2011-284, s. 29; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-16. It was recodified as G.S. 28A-2A-5 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-284, s. 29, effective June 24, 2011, substituted "executor or devisee" for "executor, devisee or legatee" in subdivision (1).

CASE NOTES

Applied in In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).


§ 28A-2A-6. Proof and examination in writing.

Every clerk of the superior court shall take in writing the proofs and examinations of the witnesses touching the execution of a will, and he shall embody the substance of such proofs and examinations, in case the will is admitted to probate, in his certificate of the probate thereof, which certificate must be recorded with the will. The proofs and examinations as taken must be filed in the office.

History

(C.C.P., s. 437; Code, s. 2149; Rev., s. 3126; C.S., s. 4143; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-17. It was recodified as G.S. 28A-2A-6 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Legal Periodicals. - For comment on the necessity for proof of due execution of a will, see 3 Wake Forest Intra. L. Rev. 12 (1967).

CASE NOTES

Compliance with this section is essential to a valid probate. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Presumption of Valid Probate and Recordation. - The requirements of this section did not obtain in the probate of a will in the old practice before the court of pleas and quarter sessions; and where the records show that a will sought to be set aside for improper probate, valid on its face, has been transcribed upon the records of that court, it is presumed to have been duly admitted to probate and properly transcribed upon the record, the burden being upon the caveator to show to the contrary. Poplin v. Hatley, 170 N.C. 163, 86 S.E. 1028 (1915).

Conclusiveness of Certificate as to Validity. - Probate of a will by the clerk of the superior court is a judicial act, and his certificate is conclusive evidence of the validity of the will, until vacated on appeal, or declared void by a competent tribunal in a proceeding instituted for that purpose. It cannot be vacated in a collateral manner. Mayo v. Jones, 78 N.C. 402 (1878); McClure v. Spivey, 123 N.C. 678, 31 S.E. 857 (1898).

Testimony of Witnesses Must Be Embodied in Clerk's Certificate. - It is the duty of the clerk taking probate of a will to embody the substance of the testimony of witnesses in his certificate of probate to be recorded with the will. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Foreign Records Conforming to Section Sufficient. - Where a nonresident testator devises land in this State, and the record of the foreign court of probate, duly certified, contains the certificate of probate, which refers to the certified examinations of the witnesses, in accordance with the requirements of this section, the whole forming one transaction, the exemplification of which and of the will being duly recorded in the county where the land lies, the will is sufficiently proved and passes the property. Roscoe v. John L. Roper Lumber Co., 124 N.C. 42, 32 S.E. 389 (1899).

Former Practice. - Formerly the court of pleas and quarter sessions had jurisdiction of the probate of wills, and there was at that time no provision in the statute requiring the taking of the proofs in writing or for recording the probate. The practice was to exhibit the will before the court and offer the proofs of execution, and for an entry to be made upon the minutes of the adjudication, and the clerk, acting upon the authority of the court, then recorded the will upon the will book. In most instances he also recorded a memorandum of the proceedings before the court, but this was not done in all cases. Poplin v. Hatley, 170 N.C. 163, 86 S.E. 1028 (1915).

Applied in In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).

Cited in Carter v. Marion, 183 N.C. App. 449, 645 S.E.2d 129 (2007), review denied, appeal dismissed, 362 N.C. 175, 658 S.E.2d 271 (2008).


§ 28A-2A-7. Probate in solemn form.

  1. A person entitled to apply for probate of a will pursuant to G.S. 28A-2A-1 or G.S. 28A-2A-2 may file a petition for probate of the will in solemn form, and the matter shall proceed as an estate proceeding governed by Article 2 of Chapter 28A of the General Statutes. The clerk of superior court shall issue a summons to all interested parties in the estate. The clerk shall schedule a hearing at which the petitioner shall produce the evidence necessary to probate the will.
  2. If an interested party contests the validity of the will, that person must file a caveat before the hearing or raise an issue of devisavit vel non at the hearing. Upon the filing of a caveat or raising of an issue of devisavit vel non, the clerk shall transfer the cause to the superior court, and the matter shall be heard as a caveat proceeding.
  3. If no interested party contests the validity of the will, the probate shall be binding, and no interested party who was properly served may file a caveat of the probated will. Initiation of a probate in common form shall not preclude a person from applying for probate in solemn form.

History

(2011-344, s. 4.)

CASE NOTES

Superior Court's Jurisdiction. - Judge of the superior court may determine that a document is not a decedent's will as a matter of law in the appropriate case. Moss v. Sprouse (In re Estate of Worley), - N.C. App. - , 843 S.E.2d 300 (2020).

Siblings did not file a formal caveat with the clerk, but they did otherwise raise the issue of devisavit vel non in their petition, contending that the holographic document was not the decedent's will; the clerk was correct in concluding that she lacked jurisdiction to decide the issue and the matter was properly brought before the superior court. Moss v. Sprouse (In re Estate of Worley), - N.C. App. - , 843 S.E.2d 300 (2020).

§ 28A-2A-8. Manner of probate of attested written will.

  1. An attested written will, executed as provided by G.S. 31-3.3, may be probated in the following manner:
    1. Upon the testimony of at least two of the attesting witnesses; or
    2. If the testimony of only one attesting witness is available, then
      1. Upon the testimony of such witness, and
      2. Upon proof of the handwriting of at least one of the attesting witnesses who is dead or whose testimony is otherwise unavailable, and
      3. Upon proof of the handwriting of the testator, unless he signed by his mark, and
      4. Upon proof of such other circumstances as will satisfy the clerk of the superior court as to the genuineness and due execution of the will; or
    3. If the testimony of none of the attesting witnesses is available, then
      1. Upon proof of the handwriting of at least two of the attesting witnesses whose testimony is unavailable, and
      2. Upon compliance with paragraphs c. and d. of subsection (a)(2) of this section; or
    4. Upon a showing that the will has been made self-proved in accordance with the provisions of G.S. 31-11.6.
  2. Due execution of a will may be established, where the evidence required by subsection (a) of this section is unavoidably lacking or inadequate, by testimony of other competent witnesses as to the requisite facts.
  3. The testimony of a witness is unavailable within the meaning of this section when the witness is dead, out of the State, not to be found within the State, incompetent, physically unable to testify or refuses to testify.

History

(1953, c. 1098, s. 12; 1977, c. 795, s. 2; 1979, c. 107, s. 4; 2011-344, ss. 3, 4.)

Editor's Note. - This section was formerly G.S. 31-18.1. It was recodified as G.S. 28A-2A-8 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made a minor stylistic change in subdivision (a)(3)b.; inserted "of this section" in subsection (b); and deleted "insane or otherwise" preceding "incompetent" in subsection (c).

Legal Periodicals. - For note as to procedure in probating will when witnesses are dead, see 35 N.C.L. Rev. 341 (1957).

For comment on the necessity for proof of due execution of a will, see 3 Wake Forest Intra. L. Rev. 12 (1967).

For survey of 1977 law on wills, trusts and estates, see 56 N.C.L. Rev. 1152 (1978).

For survey of 1979 property law, see 58 N.C.L. Rev. 1509 (1980).

CASE NOTES

Editor's Note. - Some of the cases cited below construe former G.S. 31-18.

Compliance with Statute Required. - In order that a paper-writing, designed as a testamentary disposition of property, may effectuate this purpose it must have been executed and proven in strict compliance with the statutory requirements. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948). See Wescott v. First & Citizens Nat'l Bank, 227 N.C. 39, 40 S.E.2d 461 (1946). See also Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956).

Evidence Must Show Subscribing in Presence of Testator. - Under G.S. 31-3.3 and this section, it is essential, not only that the document shall be subscribed in the presence of the testator by at least two witnesses, but that the evidence upon which the will is admitted to probate must show that fact. In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892).

Proof Required When Only One Witness Available. - The statute seems to require that, when the will purports to be signed by the testator himself and only one of the subscribing witnesses is alive and competent, some evidence should be introduced as to the handwriting of the testator or the genuineness of the signature. Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913).

It is not required, in order to have a valid probate, that the surviving witness should testify that he saw the other witness subscribe his name to the instrument. Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913).

An attested will may be probated on the testimony of two of the attesting witnesses, but if the testimony of only one attesting witness is available, then upon the testimony of such witness with proof of the handwriting of at least one of the attesting witnesses who is dead or whose testimony is otherwise unavailable, and proof of the handwriting of the testator, unless he signed by his mark, and proof of such other circumstances as will satisfy the clerk of the superior court as to the genuineness and due execution of the will. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

For a will to be admitted to probate, subdivision (a)(1) of this section requires that the will meet the requirements of G.S. 31-3.3 and that two of the attesting witnesses testify before the court. In re Will of Everhart, 88 N.C. App. 572, 364 S.E.2d 173, cert. denied, 322 N.C. 112, 367 S.E.2d 910 (1988).

No Requirement That Witness Be Able to See Will. - Subdivision (a)(1) of this section requires only that an attested will be probated "upon the testimony of at least two of the attesting witnesses." It does not require that the witness be able to see the will and the signatures on it at the time of the caveat proceeding in order that he may give testimony to prove it. In re Will of Weston, 38 N.C. App. 564, 248 S.E.2d 359 (1978).

A witness who had become blind by the time of the caveat proceeding, but who had full use of his ocular capacity at the time the testator executed the document and at the time it was probated in common form did not come within any of the definitions of "unavailable" in subsection (c) of this section. In re Will of Weston, 38 N.C. App. 564, 248 S.E.2d 359 (1978).

Whether or not the witness by virtue of his blindness at the time of the caveat proceeding was "unavailable," was a question of law to be decided by the judge. In re Will of Weston, 38 N.C. App. 564, 248 S.E.2d 359 (1978).

Proof De Novo on Issue of Devisavit Vel Non. - The authorities seem to hold that in the trial of an issue of devisavit vel non, on caveat duly entered, the proof as to the formal execution of the will shall be made de novo. Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913), citing In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025 (1909).

Applied in In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).

Cited in In re Will of Thompson, 196 N.C. 271, 145 S.E. 393 (1928); In re Will of Shemwell, 197 N.C. 332, 148 S.E. 469 (1929); In re Will of Stewart, 198 N.C. 577, 152 S.E. 685 (1930); In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876 (1930); Cartwright v. Jones, 215 N.C. 108, 1 S.E.2d 359 (1939); McMillan v. Robeson, 225 N.C. 754, 36 S.E.2d 235 (1945); Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968); Seagraves v. Seagraves, 206 N.C. App. 333, 698 S.E.2d 155 (2010).


§ 28A-2A-9. Manner of probate of holographic will.

A holographic will may be probated only upon the testimony of at least three competent witnesses that they believe that the will is written entirely in the handwriting of the person whose will it purports to be, and that the name of the testator as written in or on, or subscribed to, the will is in the handwriting of the person whose will it purports to be.

History

(1953, c. 1098, s. 12; 2011-344, s. 3; 2021-85, s. 1(a).)

Cross References. - As to requirements for valid holographic will, see G.S. 31-3.4.

Editor's Note. - This section was formerly G.S. 31-18.2. It was recodified as G.S. 28A-2A-9 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Session Laws 2021-85, s. 1(c), made the rewriting of this section by Session Laws 2021-85, s. 1(a), effective July 8, 2021, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2021-85, s. 1(a), rewrote the section. For effective date and applicability, see editor's note.

CASE NOTES

Indicia of Holographic Will Held Sufficient. - Where caveators presented testimony that holographic writings were found among papers which included the titles to testator's car and housetrailer, copies of property deeds, health insurance papers, and cancelled bank notes, further testimony that testator duly executed his signature on the writings before a notary public, and the testimony of three witnesses who testified they were familiar with both the handwriting and signature of the testator and that they believed the subject writings and signatures to be in testator's own hand, caveators presented sufficient indicia of a holographic will under G.S. 31-3.4 and they satisfied the requirements of this section; therefore, propounders' motion for directed verdict was properly denied. In re Will of Penley, 95 N.C. App. 655, 383 S.E.2d 385, cert. denied, 326 N.C. 48, 389 S.E.2d 93 (1990).

Engraved Monogram of Testatrix Not Construed as Signature. - An engraved monogram of a testatrix, appearing on the instrument offered for probate in solemn form as a holographic will, may not be considered as a part thereof. The monogram is not in her handwriting and may not be construed to be her signature. Pounds v. Litaker, 235 N.C. 746, 71 S.E.2d 39 (1952).

This section requires twofold testimony from three witnesses concerning handwriting of the purported testator: (1) That the will is written entirely in his handwriting, and (2) that his name appearing in or on, or subscribed to, the will is in his handwriting. In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975).

When Witness Is Competent to Give Opinion. - When a witness swears that he is "well acquainted" with a decedent's handwriting, and is not asked on cross-examination how he became familiar with it, he is prima facie competent. In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975).

Where a witness was not asked, and he did not testify, whether he had acquired knowledge of decedent's handwriting or whether he was familiar with it, the witness was not competent to give an opinion as to handwriting, and his testimony did not satisfy the statutory requirements. In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975).

Presumption of Competency Rebutted. - See In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975).

Handwriting Goes to Jury on Testimony of Three Witnesses. - Testimony of three witnesses that the paper-writing propounded as the holographic will of decedent was in his handwriting takes the case to the jury as to this requirement, notwithstanding conflicting testimony of caveator. In re Williams' Will, 215 N.C. 259, 1 S.E.2d 857 (1939).

In an action to probate a destroyed holographic will, the propounder must show that the instrument in the handwriting of the deceased and signed by him once existed and was destroyed under circumstances that would defeat an inference of revocation. Upon failure of such proof, there is a failure of the proof of the res and a nonsuit is proper. Hewett v. Murray, 218 N.C. 569, 11 S.E.2d 867 (1940).

Applied in McEwan v. Brown, 176 N.C. 249, 97 S.E. 20 (1918); Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956).

Cited in Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968); In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).


§ 28A-2A-10. Manner of probate of nuncupative will.

  1. No nuncupative will may be probated later than six months from the time it was made unless it was reduced to writing within 10 days after it was made.
  2. Before a nuncupative will may be probated
    1. Written notice must be given to the surviving spouse, if any, and to the next of kin, by the clerk of the court in which it is to be probated, notifying them that the will has been offered for probate and that they may, if they desire, oppose the probate thereof, or
    2. When the surviving spouse or next of kin are not known or when for any other reason such notice cannot be given, a notice to the same effect must be published not less than once a week for four consecutive weeks in some newspaper published in the county where the will is offered for probate, or if no newspaper is published in the county, then in some newspaper having general circulation therein.
  3. A nuncupative will may be probated only in the following manner:
    1. Upon the testimony of at least two competent witnesses who establish the terms of such will and who state that they were simultaneously present at the making thereof, that the testator declared he was then making his will, and that they were then and there specially requested by him to bear witness thereto; and
    2. Upon the testimony of one competent witness, who may but need not be one of the witnesses referred to in subdivision (1) of this subsection, that the will was made in the testator's last illness or while he was in imminent peril of death, and that he did not survive such sickness or imminent peril, but it is not necessary that all such facts be proved by the testimony of the same witness.

History

(1953, c. 1098, s. 12; 2011-344, s. 3.)

Cross References. - As to requirements for valid nuncupative will, see G.S. 31-3.5.

Editor's Note. - This section was formerly G.S. 31-18.3. It was recodified as G.S. 28A-2A-10 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Legal Periodicals. - For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

CASE NOTES

Editor's Note. - The cases cited below construe the provisions of former G.S. 31-18 which related to nuncupative wills.

Similarity to English Statute of Frauds. - Statutory provisions in relation to nuncupative wills have existed in this State since 1784, and they originally were substantially the same as those in the English Statute of Frauds, 29 Car. II, ch. 3, G.S. 19, 20. These provisions have always been strictly construed and enforced by the courts, both in this State and in England. Smith v. Smith, 63 N.C. 637 (1869).

The purpose of the statute is not to prevent the examination of the witnesses of the will, after such lapse of six months, on the trial of the issue devisavit vel non in the course of a contest of it, but it is to require that they shall not be allowed to prove it in the first instance, when it is first presented for probate after that time, unless it shall have been put in writing within 10 days next after the making thereof. In re Haygood's Will, 101 N.C. 574, 8 S.E. 222 (1888).

Strict Compliance Necessary. - The requisites of this statutory provision must be strictly complied with and observed, in all material respects, in order to prevent opportunity for fraudulent practices on the part of such persons as would be disposed to obtain undue advantage of persons in their last sickness as to the final disposition of their property; and also to prevent mischiefs that might arise from the ignorance, misapprehension or dishonest purposes of persons called upon to be the witnesses of such wills. The purpose of such requisites is to prevent the fabrication of such wills; they are necessary, and it is essential to observe them strictly. Brown v. Brown, 6 N.C. 350 (1818); Rankin v. Rankin, 31 N.C. 156 (1848); Webster v. Webster, 50 N.C. 95 (1857); Haden v. Bradshaw, 60 N.C. 259 (1864); Smith v. Smith, 63 N.C. 637 (1869); Bundrick v. Haygood, 106 N.C. 468, 11 S.E. 423 (1890); Long v. Foust, 109 N.C. 114, 13 S.E. 889 (1891).

The testator must state his wishes in the presence of two witnesses and specially require them to bear witness thereto in order to constitute a valid nuncupative will. Kennedy v. Douglas, 151 N.C. 336, 66 S.E. 216 (1909).

Nuncupative Will Not Shown. - Where a woman in her last illness, without expressing any purpose to make a will said she wanted to give to her sister certain articles of personal property, and called her to her bedside and gave them to her, in the presence of two other persons but did not call them, or either of them, to witness the transaction, it was held that this did not constitute a nuncupative will. Bundrick v. Haygood, 106 N.C. 468, 11 S.E. 423 (1890).

Designation of Witnesses by Name Not Necessary. - It is sufficient that the testator saw the witnesses and charged them to bear witness to his will, and they did so, and it is not a good objection that he failed to designate them particularly by name. That he required them, each, all of them, to bear witness, was what the section requires. The purpose is that the testator shall require two witnesses at least to take notice and bear witness that he makes his will. He must require and direct a competent person, and that person must be able to testify that he was one of the persons - the witnesses - so required, and that he did take notice and bear witness. Long v. Foust, 109 N.C. 114, 13 S.E. 889 (1891).

Sufficiency of Showing. - Where a person, being in extremis, and conscious of it, sent for a friend with whom he had often talked on the subject of a will and told him what disposition he wanted to make of his property, and then such friend replied that if he wanted to do anything of that kind he had better have some other person in the room, and thereupon the speaker went out and brought in another person, and in the presence of the sick man repeated the proposed disposition of the property, to which the latter assented, it was held, to be a sufficient rogatio testium to satisfy the requirements of a nuncupative will. Smith v. Smith, 63 N.C. 637 (1869).

Under this section, it is sufficient to show, on the question of the testator's requesting that the witness "bear witness" to the will, that believing himself to be in extremis, he told the witness during his last illness that he wanted to make a will, who, at his request, called in another and while they were at his bedside, testator gave specific directions for the disposition of his personal property; and though he had therefore expressed his wish to make a written will, and had failed in his effort to do so, the matters sought to be established as the nuncupative will were declared at a time when he was apprehensive that he would become unable to talk, and about four days before his death. In re Garland's Will, 160 N.C. 555, 76 S.E. 486 (1912).

Citation or Publication Within Limitation of Six Months. - After the contents of the will are established within the time and in the manner prescribed by this section it cannot be admitted to probate until the citation or publication, and the probate based thereon shall be completed within six months from the making of the alleged will. The limitation of six months refers only to the proof and establishment of the contents, and that only where it is not reduced to writing within 10 days of its making. In re Haygood's Will, 101 N.C. 574, 8 S.E. 222 (1888).

Will Not to Be Proved until Citation Made. - It will be observed that it is not required that the will shall not be proved by the witnesses until the citation and notice provided for shall be made, but it shall not be proved - that is, proved in the sense of admitting it to probate at once - until citation shall be made, the purpose being to give the widow and next of kin opportunity to contest the will - the proof thereof by the witnesses thereof - if they shall see fit to do so. In re Haygood's Will, 101 N.C. 574, 8 S.E. 222 (1888).

Will Reduced to Writing May Be Proved Before or After Six Months. - A just interpretation of the provision relative to the proof of a nuncupative will is, that if such will shall be put in writing within 10 days next after it was made, it may be proved by the witnesses thereof either before or after the lapse of six months next after the making thereof, because the will being in writing with the sanction of the witnesses, their recollection so as to what it was is helped and strengthened thereby, and they could the better be trusted to testify as to the making of the same, and what it was in its detail, at any time within a reasonable period. In re Haygood's Will, 101 N.C. 574, 8 S.E. 222 (1888).

Writing Dictated to One Witness but Execution Postponed. - A paper-writing which the deceased had therefore dictated but postponed executing from time to time and which he finally declared to be his will without reading it, at a time he was in his last sickness not expecting to recover and physically unable to execute it, is invalid as a nuncupative will: (1) His intent that it should be a written will is evidenced by his conduct; (2) the dictation was not in law "during his last sickness." Kennedy v. Douglas, 151 N.C. 336, 66 S.E. 216 (1909).

The declaration of a testator made in the presence of two witnesses that a paper-writing contained the disposition he desired made of his property and that he desired its provisions carried out, without reading or having the paper read at the time, but relying upon the assertion of a person then present that it contained his wishes as dictated by him several months before, is invalid as a nuncupative will: (1) The dictation was made to one witness alone; (2) there was no sufficient declaration then and there of the testator's wishes in the presence of two witnesses from which they could reduce their recollection to writing within 10 days. Kennedy v. Douglas, 151 N.C. 336, 66 S.E. 216 (1909).


§ 28A-2A-11. Probate of wills of members of the Armed Forces of the United States.

In addition to the methods already provided in existing statutes therefor, a will executed by a person while in the Armed Forces of the United States or the United States Merchant Marine, shall be admitted to probate (whether there were subscribing witnesses thereto or not, if they, or either of them, is out of the State at the time said will is offered for probate) upon the oath of at least three credible witnesses that the signature to said will is in the handwriting of the person whose will it purports to be. Such will so proven shall be effective to devise real property as well as to bequeath personal estate of all kinds. This section shall not apply to cases pending in courts and at issue on the date of its ratification.

History

(1919, c. 216; C.S., s. 4151; Ex. Sess. 1921, c. 39; 1943, c. 218; 1945, c. 81; 1953, c. 1098, s. 13; 2011-183, s. 27; 2011-284, s. 30; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-18.4. It was recodified as G.S. 28A-2A-11 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-183, s. 27, effective June 20, 2011, in the section catchline, substituted "Armed Forces of the United States" for "armed forces"; and in the first sentence, substituted "Armed Forces" for "armed forces" and "United States Merchant Marine" for "merchant marine," and made minor stylistic changes.

Session Laws 2011-284, s. 30, effective June 24, 2011, substituted "devise property of all kinds" for "devise real property as well as to bequeath personal estate of all kinds" in the second sentence.

§ 28A-2A-12. Probate conclusive until vacated; substitution of consolidated bank as executor or trustee under will.

Such record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal. Provided, that whenever in a will so probated or recorded a bank or trust company shall be named executor and/or trustee and shall have at the time of such probate and recording become absorbed by or consolidated with another bank or trust company or shall have sold and transferred all its assets and liabilities to another bank or trust company doing business in North Carolina, such latter bank or trust company shall be deemed substituted for and shall have all the rights and powers of the former bank or trust company.

History

(C.C.P., s. 438; Code, s. 2150; Rev., s. 3128; C.S., s. 4145; 1929, c. 150; 1941, c. 79; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-19. It was recodified as G.S. 28A-2A-12 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

CASE NOTES

This section is restricted to a decree of probate regular on its face, and does not apply where on the face of the decree of probate it affirmatively shows that the will was not probated as required by mandatory applicable statutes for the probate of wills. Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956); Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968).

Probated will constitutes a muniment of title unassailable except in a direct proceeding. Whitehurst v. Abbott, 225 N.C. 1, 33 S.E.2d 129 (1945); In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948); Hargrave v. Gardner, 264 N.C. 117, 141 S.E.2d 36 (1965).

Under this section a will probated and recorded in accordance with the applicable statute constitutes a muniment of title. Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968).

Conclusively Valid Until Declared Void. - Probate of a will by the clerk of the superior court is a judicial act, and his certificate is conclusive evidence of the validity of the will, until vacated on appeal, or declared void by a competent tribunal in a proceeding instituted for that purpose. It cannot be vacated in a collateral manner. Mayo v. Jones, 78 N.C. 402 (1878); McClure v. Spivey, 123 N.C. 678, 31 S.E. 857 (1898).

A will probated in common form before the clerk of the superior court is conclusively valid until declared void by a competent tribunal, and may be offered in evidence in proceedings to caveat the will. Holt v. Ziglar, 163 N.C. 390, 79 S.E. 805 (1913). See In re Beauchamp's Will, 146 N.C. 254, 59 S.E. 687 (1907).

Until set aside in a direct attack, a will is conclusively presumed to be the will of the testator. In re Will of Cooper, 196 N.C. 418, 145 S.E. 782 (1928).

When executed, proven and recorded in manner and form as prescribed, a paper-writing designed as a testamentary disposition of property is given conclusive legal effect as the last will and testament of the decedent, subject only to be vacated on appeal or declared void by a court of competent jurisdiction in a proceeding instituted for that purpose. Until so set aside it is presumed to be the will of the testator. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948).

Under this section the order of the clerk admitting a paper-writing to probate constitutes conclusive evidence that the paper-writing is the valid will of the decedent until it is declared void by a competent tribunal on an issue of devisavit vel non in a caveat proceeding. Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448 (1950); Hargrave v. Gardner, 264 N.C. 117, 141 S.E.2d 36 (1965); Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967).

Once a paper-writing has been probated as a will, every part of it stands until set aside by the appropriate tribunal. Ravenel v. Shipman, 271 N.C. 193, 155 S.E.2d 484 (1967).

Where the clerk of the superior court probates a will in common form and records it properly, the record and probate are conclusive as to the validity of the will until vacated on appeal or declared void by a competent tribunal. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Cannot Be Attacked Collaterally. - Where a will has been admitted to probate a party claiming property disposed of by it to another cannot, in an action to recover the same, be permitted to attack the will on the ground of the lack of testamentary capacity of the testatrix, and evidence offered for that purpose is properly excluded. Varner v. Johnston, 112 N.C. 570, 17 S.E. 483 (1893).

A will probated in common form is not subject to collateral attack, but is binding or conclusive until set aside in a direct proceeding. Mills v. Mills, 195 N.C. 595, 143 S.E. 130 (1928).

Under this section, a will probated and recorded in accordance with the applicable statute may not be collaterally attacked. Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968).

Attack Based on Fraud. - A will which has been duly probated in common form may not be collaterally attacked even for fraud. Crowell v. Bradsher, 203 N.C. 492, 166 S.E. 331 (1932).

The probate of a will in common form is conclusive as to the validity of the instrument until set aside in a caveat proceeding duly instituted, and while the beneficiaries under the will may be held trustees ex maleficio for extrinsic fraud which interferes with the right to caveat the instrument, the probate may not be collaterally attacked for intrinsic fraud constituting grounds for attack of the instrument by caveat proceedings when there is nothing to show that plaintiff's right to attack by caveat was interfered with in any manner. Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967).

Offer of Subsequent Will. - Where a paper-writing has been duly probated in common form, offer of proof of a will alleged to have been subsequently executed by the testatrix is a collateral attack, and the clerk is without jurisdiction to set aside the probate upon such proof. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948).

An order of the clerk adjudging a will to be fully proved in common form is not "conclusive in evidence of the validity of the will" under this section, on the issue of devisavit vel non, raised by a caveat filed thereto. Wells v. Odum, 205 N.C. 110, 170 S.E. 145 (1933); In re Will of Etheridge, 231 N.C. 502, 57 S.E.2d 768 (1950).

Clerk May Revoke Probate. - Where the clerk of the superior court has probated as a will a document which has not been executed in accordance with the statutory requirements for probate or which shows on its face that it was not intended as a testamentary disposition of the author's property, or when other jurisdictional requirements for probate are shown to be lacking, the clerk may revoke his probate. Ravenel v. Shipman, 271 N.C. 193, 155 S.E.2d 484 (1967).

The probate of a will may be set aside upon motion after notice where it is clearly made to appear that the court was imposed upon or misled, but otherwise the probate is conclusive and cannot be collaterally attacked, and the paper-writing stands as the last will and testament until declared void in a direct proceeding in the nature of a caveat under G.S. 31-32. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948).

Clerk May Not Set Aside Probate on Grounds Determinable by Caveat. - While the clerk of the superior court in proper instances may set aside a probate in common form, he may not do so on grounds which are properly determinable by caveat. In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).

The burden of proof on a motion to vacate a probate is on the movants to establish sufficient grounds to set aside the probate. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Effect of Order of Clerk. - An order of the clerk adjudging paper-writing to be fully proved in common form is not "conclusive in evidence of the validity of the will," under this section, on the issue of devisavit vel non, but as between the probated instrument and the prior purported wills, the former stands until "declared void by a competent tribunal." In re Neal's Will, 227 N.C. 136, 41 S.E.2d 90 (1947).

Rents and profits of lands devised belonged to beneficiaries and their ancestors until the probate was set aside and the will adjudged void. Hinton v. Whitehurst, 214 N.C. 99, 198 S.E. 579 (1938).

When Devisees Entitled to Rents and Profits until Probate Set Aside. - Where there is no evidence tending to show that at any time prior to the institution of the caveat proceeding, the defendants, or their ancestors, had any knowledge or intimation that the plaintiffs would attack the validity of the will and there is no evidence tending to show that any of the devisees in said will procured its execution by undue or fraudulent influence, the defendants and their ancestors were entitled to the rents and profits of the lands devised to them until the probate was set aside and the will adjudged void. Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66 (1936).

Effect of Revocation of Probate upon Administration. - The revocation of the probate in common form did not have the effect of annulling the administration properly granted. Floyd v. Herring, 64 N.C. 409 (1870).

Title of Innocent Purchasers Not Affected by Judgment Setting Aside Will. - Where the devisees named in a will, which has been duly probated in common form, sell and dispose of part of the lands devised to innocent purchasers for value without notice, and thereafter caveat proceedings are instituted and the will set aside, the heirs at law, by operation of the judgment setting aside the will, become tenants in common in the lands not disposed of, but the title conveyed by the devisees named in the paper-writing to purchasers for value without notice, or knowledge of facts from which a purpose to file caveat proceedings could be intimated, is not affected, the probate in common form being conclusive evidence of the validity of the will until it is attacked by caveat proceedings duly instituted. Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66 (1936).

Inadequacy of Relief Through Caveat Proceeding Entitled Decedent's Step-grandchildren to Proceed on Tort Claim. - Superior court erroneously dismissed a claim filed by two of decedent's step-grandchildren that defendants, two of the decedent's other step-grandchildren, maliciously caused their step-grandmother to execute a will that left them only nominal bequests, as: (1) the movant step-grandchildren would not be able to obtain adequate relief through a caveat proceeding; and (2) it did not appear that the step-grandchildren could not prove a set of facts supporting their claim which would entitle them to relief. Murrow v. Henson, 172 N.C. App. 792, 616 S.E.2d 664 (2005).

Cited in Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 518 S.E.2d 205 (1999), cert. denied, 351 N.C. 186, 541 S.E.2d 709 (1999).


§ 28A-2A-13. Wills filed in clerk's office; certified copies filed for real property in other counties.

  1. All original probated wills shall remain in the office of the clerk of superior court, among the public records of the court where the wills were probated.
  2. If a probated will devises real property outside the county where the will was probated, a copy of the will and a copy of the certificate of probate of the will, certified under the hand and seal of the clerk of the superior court of the county where the will was probated, may be filed in the office of the clerk of the superior court of any other county in this State in which the real property is situated. The filing of the probated will in the county where the real property is situated shall have the same effect for purposes of G.S. 31-39(c) as to the priorities of claims against the real property as if the will had originally been probated in that county and as if the clerk of superior court of that county had jurisdiction to probate the will.

History

(1777, c. 115, s. 59; R.C., c. 119, s. 19; Code, s. 2173; Rev., s. 3129; 1921, c. 108, s. 1; C.S., s. 4146; 2011-344, s. 3; 2014-107, s. 2.1.)

Cross References. - As to recordation in county where land lies, see G.S. 31-39.

Editor's Note. - This section was formerly G.S. 31-20. It was recodified as G.S. 28A-2A-13 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2014-107, s. 2.1, added "certified copies filed for real property in other counties" to the section heading; and rewrote the section, which read "All original wills shall remain in the clerk's office, among the records of the court where the same shall be proved, and to such wills any person may have access, as to the other records. If said will contains a devise of real estate, outside said county where said will is probated, then a copy of the said will, together with the probate of the same, certified under the hand and seal of the clerk of the superior court of said county may be recorded in the book of wills and filed in the office of the clerk of the superior court of any county in the State in which said land is situated with the same effect as to passing the title to said real estate as if said will had originally been probated and filed in said county and the clerk of the superior court of said last-mentioned county had had jurisdiction to probate the same." See Editor's note for effective date and applicability.

CASE NOTES

Will Taken from Record as Evidence of Testator's Handwriting. - An original will taken from the records of the court is competent, without further proof of its execution, as a basis of comparison in determining the genuineness of the handwriting of testator to the instrument in controversy. Croom v. Sugg, 110 N.C. 259, 14 S.E. 748 (1892).

Cited in Haw River Land & Timber v. Lawyers Title Ins., 152 F.3d 275 (4th Cir. 1998).

§ 28A-2A-14. Validation of wills heretofore certified and recorded.

All wills which have prior to March 9, 1921, been certified and recorded in the office of the clerk of the superior court of any county, substantially following the provisions of G.S. 28A-2A-13, are hereby validated and approved as to the conveyance and transfer of any title to real estate as contained therein, to the same extent as if said wills had originally been probated and filed in said county, and the clerk of the superior court of said county had had jurisdiction to probate the same, provided the probates and witnesses to the said wills are sufficient and according to law.

History

(1921, c. 108, s. 2; C.S., s. 4146(a); 2011-344, ss. 3, 4.)

Editor's Note. - This section was formerly G.S. 31-21. It was recodified as G.S. 28A-2A-14 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, updated the section reference.

CASE NOTES

Statute Not Retroactive. - Public Laws 1921, c. 108 (former G.S. 31-20, now G.S. 28A-2A-13, and this section), does not control rights which accrued prior to its enactment. Hence, when an original will probated in 1910 is invalidated by judicial decree, a certified copy thereof recorded in another county becomes void and one who purchases with notice of the caveat cannot convey any title thereunder, either before or after notice of its invalidity has been filed in the county where the certified copy has been recorded. The only purpose of such certified copy was to give notice of the source of title. Whitehurst v. Abbott, 225 N.C. 1, 33 S.E.2d 129 (1945).


§ 28A-2A-15. Certified copy of will proved in another state or country.

When a will, made by a citizen of this State, is proved and allowed in some other state or country, and the original will cannot be removed from its place of legal deposit in such other state or country, for probate in this State, the clerk of the superior court of the county where the testator had his last usual residence or has any property, upon a duly certified copy or exemplification of such will being exhibited to him for probate, shall take every order and proceeding for proving, allowing and recording such copy as by law might be taken upon the production of the original.

History

(1802, c. 623; R.C., c. 44, s. 9; C.C.P., s. 445; Code, s. 2157; Rev., s. 3130; C.S., s. 4147; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-22. It was recodified as G.S. 28A-2A-15 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

CASE NOTES

When a resident of this State dies outside the State and his will is probated in another state, a duly certified copy of the will so probated may be offered for original probate in this State, and its validity as a testamentary disposition of property established in the same manner as if the original had been offered for probate here. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Defective Certificate of Clerk. - The certificate of probate of a will executed in another state, disposing of real estate in this State, is defective where it does not show affirmatively that the will was executed according to the laws of this State. Raleigh & W. Ry. v. Glendon & Gulf Mining & Mfg. Co., 113 N.C. 241, 18 S.E. 208 (1893).

Applied in In re Brauff's Will, 247 N.C. 92, 100 S.E.2d 254 (1957).

Cited in In re Will of Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).


§ 28A-2A-16. Examination of witnesses by affidavit.

  1. The examination of witnesses to a will may be taken and subscribed in the form of an affidavit before a notary public or other person who is authorized to administer oaths in the jurisdiction where the examination is held.
  2. A photographic copy of the original will certified to be a true and exact copy thereof by the clerk of superior court of the county in which the will is to be probated may be used in the examination of the witnesses in the procedures set out in subsection (a) of this section; provided, the said clerk has in his possession the original will at the time of examination of the witnesses.
  3. Affidavits taken in accordance with subsection (a) of this section shall be transmitted by the person taking the affidavit to the clerk of superior court of the county in which the will is to be probated.
  4. Testimony submitted in accordance with subsection (a) of this section is competent in regard to all requirements of G.S. 31-3.3 and to establish that a will was executed in compliance with the requirements of G.S. 31-3.3.
  5. Nothing in this section is to limit or otherwise affect the authority of a clerk of superior court in the exercise of his authority as judge of probate under G.S. 28A-2-1 to:
    1. Issue subpoenas under G.S. 7A-103; or
    2. Order the taking of depositions of witnesses.

History

(1917, c. 183; C.S., s. 4149; 1933, c. 114; 1957, c. 587, ss. 1, 1A; 1979, c. 226, s. 1; 1987, c. 78, s. 2; 2011-344, ss. 3, 4.)

Editor's Note. - This section was formerly G.S. 31-24. It was recodified as G.S. 28A-2A-16 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsections (b) through (d), inserted "of this section"; and in subdivisions (e)(1) and (e)(2), made a minor stylistic change.

Legal Periodicals. - As to 1933 amendment, see 11 N.C.L. Rev. 262 (1933).

§ 28A-2A-17. Certified copy of will of nonresident recorded.

  1. Subject to the provisions of subsection (b) of this section, if the will of a citizen or subject of another state or country is probated in accordance with the laws of that jurisdiction and a duly certified copy of the will and the probate proceedings are produced before a clerk of superior court of any county wherein the testator had property, the copy of the will shall be probated as if it were the original. If the jurisdiction is within the United States, the copy of the will and the probate proceedings shall be certified by the clerk of the court wherein the will was probated. If the jurisdiction is outside the United States, the copy of the will and probate proceedings shall be certified by any ambassador, minister, consul or commercial agent of the United States under his official seal.
  2. For a copy of a will probated under the provisions of subsection (a) of this section to be valid to pass title to or otherwise dispose of real estate in this State, the execution of said will according to the laws of this State either at the time of its execution or at the time of the death of the testator, or as otherwise recognized as valid under the provisions of G.S. 31-46, must appear affirmatively, to the satisfaction of the clerk of the superior court of the county in which such will is offered for probate, from the testimony of a witness or witnesses to such will, or from findings of fact or recitals in the order of probate, or otherwise in such certified copy of the will and probate proceedings.
  3. If the execution of the will in accordance with the laws of this State either at the time of its execution or at the time of the death of the testator, or as otherwise recognized as valid under the provisions of G.S. 31-46, does not appear as required by subsection (b) of this section, the clerk before whom the copy is exhibited shall have power to take proof as prescribed in G.S. 28A-2A-16, and the will may be adjudged duly proved, and if so proved, the will shall be recorded as herein provided.
  4. Any copy of a will of a nonresident heretofore allowed, filed and recorded in this State in compliance with the foregoing shall be valid to pass title to or otherwise dispose of real estate in this State.

History

(C.C.P., s. 444; 1883, c. 144; Code, s. 2156; 1885, c. 393; Rev., s. 3133; C.S., s. 4152; 1941, c. 381; 1965, c. 995; 1987, c. 78, s. 3; 2011-344, ss. 3, 4; 2013-91, s. 1(h).)

Editor's Note. - This section was formerly G.S. 31-27. It was recodified as G.S. 28A-2A-17 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsections (a) through (c), inserted "of this section"; and in subsection (c), updated the section reference.

Session Laws 2013-91, s. 1(h), effective June 12, 2013, inserted "either at the time of its execution or at the time of the death of the testator, or as otherwise recognized as valid under the provisions of G.S. 31-46" in subsections (b) and (c).

Legal Periodicals. - For comment on the 1941 amendment, see 19 N.C.L. Rev. 547 (1941).

CASE NOTES

Probate on Exemplified Copy of Will and Foreign Probate Proceedings - Effect. - Instead of offering a will of a nonresident dying outside the State and disposing of property in the State for original probate in this State, the interested parties may have it probated in the state in which the testator was domiciled. When probated according to the laws of that state, an exemplified copy of the will and the probate proceedings may be brought to this State and probated here. Such a will, unless probated in accordance with the laws of this State, is not sufficient to dispose of real property in this State. It has no efficacy for any purpose in this State until probated here, but when probated here on the exemplified copy, it suffices to pass title to personalty and the right to enforce claims which testator could assert against citizens or properties in this State, even though not executed or proven as required by the laws of this State. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Orderly Arrangement of Pages of Exemplification. - Where the will has been admitted to probate in the court having jurisdiction to admit wills and testaments to probate, even though the pages of the manuscript exemplified copy are not orderly arranged, the will will be admitted to probate and record in this State, under the provisions of this section. Roscoe v. John L. Roper Lumber Co., 124 N.C. 42, 32 S.E. 389 (1899); John L. Roper Lumber Co. v. Hudson, 153 N.C. 96, 68 S.E. 1065 (1910).

Authentication by Clerk of Court and Not Register of Deeds. - It is necessary to the registration of a copy of a will in this State that the copy or exemplification of the will be duly certified and authenticated by the clerk of the court in which it has been proved or allowed, and if it has been allowed to be registered here under the certificate and seal of the register of deeds in another state it is ineffectual as evidence in a claimant's chain of title. Riley v. Carter, 158 N.C. 484, 74 S.E. 463 (1912).

Appearance and Examination of Attesting Witness Not Necessary. - Under the provisions of this section, it is not required that a will executed and admitted to probate in another state be also probated in this State by the appearance and examination of the attesting witnesses in order to pass title to property here when a copy or exemplification thereof duly certified and authenticated by the clerk of the court in which it had been proven and allowed shall be allowed, filed and recorded in the proper county in this State. The doctrine of Hunter v. Kelly, 92 N.C. 285 (1885), is no more the law. Vaught v. Williams, 177 N.C. 77, 97 S.E. 737 (1919).

Due Record and Certificate of Foreign Probate - Effect. - Where a nonresident testator devises land in this State, and the record of foreign court of probate, duly certified, contains the certificate of probate, which refers to the certified examinations of the witnesses, in accordance with the requirements of G.S. 31-17, the whole forming one transaction, the exemplification of which and of the will being duly recorded in the county where the land lies, the will is sufficiently proved and passes the property. Roscoe v. John L. Roper Lumber Co., 124 N.C. 42, 32 S.E. 389 (1899).

A will, duly proven and allowed in New York according to this section, when it appears that an exemplified copy thereof so showing has been recorded here in the county where the land lies, is admissible in evidence in the courts of this State, as a link in a chain of title. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117 (1943).

Mere Allowance, Filing, and Recordation of Foreign Order of Probate Is Insufficient. - A caveat may not be entered to the recordation of an exemplification or authenticated copy of a will and foreign order of probate that has been allowed, filed, and recorded in the office of the clerk, but can only be entered to the probate of such will. In re Will of Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).

Dissent Proceedings. - The will of a South Carolina testator was duly probated there and his widow filed a valid dissent thereto. An authenticated copy of the will to be recorded here, under this section, should include as a muniment of title, the proceedings in dissent as same appear of record in the probate court in the county in which the will was probated. Coble v. Coble, 227 N.C. 547, 42 S.E.2d 898 (1947).

Subscription by Two Witnesses Must Appear from Certificate. - Where a certified copy from another state has been recorded, the fact of subscribing by at least two witnesses must appear affirmatively "in the certificate probate or exemplification of the will." The mere recitation in the attestation clause is not affirmative evidence. Raleigh & W. Ry. v. Glendon & Gulf Mining & Mfg. Co., 113 N.C. 241, 18 S.E. 208 (1893).

Applied in Whitten v. Peace, 188 N.C. 298, 124 S.E. 571 (1924); In re Will of Chatman, 228 N.C. 246, 45 S.E.2d 356 (1947); In re Brauff's Will, 247 N.C. 92, 100 S.E.2d 254 (1957); Brickhouse v. Brickhouse, 104 N.C. App. 69, 407 S.E.2d 607 (1991).

Cited in In re Will of Lamb, 48 N.C. App. 122, 268 S.E.2d 831 (1980).


§ 28A-2A-18. Probates validated where proof taken by commissioner or another clerk.

In all cases of the probate of any will made prior to March 8, 1899, in common form before any clerk of the superior courts of this State, where the testimony of the subscribing witnesses has been taken in the State or out of it by any commissioner appointed by said clerk or taken by any other clerk of the superior court in any other county of this State, and the will admitted to probate upon such testimony, the proceedings are validated.

History

(1899, c. 680; Rev., s. 3134; C.S., s. 4153; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-28. It was recodified as G.S. 28A-2A-18 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

§ 28A-2A-19. Probates in another state before 1860 validated.

In all cases where any will devises land in this State, and the original will was duly admitted to probate in some other state prior to the year 1860, and a certified copy of such will and the probate thereof has been admitted to probate and record in any county in this State, and it in any way appears from such recorded copy that there were two subscribing witnesses to such will, and its execution was proved by the examination of such witnesses when the original was admitted to probate, such will shall be held and considered, and is hereby declared to be, good and valid for the purpose of passing title to the lands devised thereby, situated in this State, as fully and completely as if the original will had been duly executed and admitted to probate and recorded in this State in accordance with the laws of this State.

History

(1913, c. 93, s. 1; C.S., s. 4155; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-29. It was recodified as G.S. 28A-2A-19 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

§ 28A-2A-20. Validation of wills recorded without probate by subscribing witnesses.

In all cases where wills and testaments were executed prior to the first day of January, 1875, and which appear as recorded in the record of last wills and testaments to have had two or more witnesses thereto, and such last wills and testaments were admitted to probate and recorded in the record of wills in the proper county in this State prior to the first day of January, 1888, without having been duly proven as provided by law, and such wills were presented to the clerk of the superior court in any county in this State where the makers of said wills owned property, and where the makers of such wills lived and died, and were by such clerks recorded in the record of wills for that county, said wills and testaments or exemplified copies or certified true copies thereof, so recorded, if otherwise sufficient, shall have the effect to pass the title to real or personal property, or both, therein devised, to the same extent and as completely as if the execution thereof had been duly proven by the two subscribing witnesses thereto in the manner provided by law of this State. Nothing herein shall be construed to prevent such wills from being impeached for fraud.

History

(1921, c. 66; C.S., s. 4157(a); 1997-81, s. 3; 2011-284, s. 31; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-30. It was recodified as G.S. 28A-2A-20 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-284, s. 31, effective June 24, 2011, in the first sentence, substituted "that county" for "his county" and deleted "and bequeathed" following "devised."

§ 28A-2A-21. Validation of wills admitted on oath of one subscribing witness.

In all cases where last wills and testaments which appear as recorded in the record of last wills and testaments to have had two witnesses thereto and such last wills and testaments were admitted to probate and recorded in the record of wills in the proper county in this State prior to the first day of January, 1890, upon the oath and examination of one of the witnesses, such proof being taken in writing and recorded, and the certificate of probate of the clerk of the court states that such a will is proven by one of the subscribing witnesses thereto and the handwriting of the other subscribing witness being a nonresident is proven under oath, and such a will and certificate has been recorded in the record of wills of the proper county, such probate is hereby validated as fully as if the proof of the handwriting of the nonresident witness had been taken in regular form in writing and recorded.

History

(1929, c. 41, ss. 1, 2; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-31. It was recodified as G.S. 28A-2A-21 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

CASE NOTES

Presumption That Proper Will Was Revoked. - Trial court erred by permitting the beneficiaries of the decedent's first will to proceed in a caveat proceeding against the decedent's second will after a prima facie showing of the validity of the second will without first rebutting the presumption that they lacked standing to caveat attendant to their production of a mere copy of the first will, as the presumption then existed that the decedent had revoked the first will. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, cert. denied., appeal dismissed, 357 N.C. 460, 586 S.E.2d 95 (2003).


§ 28A-2A-22. Validation of probates of wills when witnesses examined before notary public; acts of deputy clerks validated.

Whenever any last will and testament has been probated, based upon the examination of the subscribing witness or the subscribing witnesses, taken before a notary public in the county in which the will is probated, or taken before a notary public of any other county, it is hereby in all respects validated and shall be sufficient to pass the title to all real and personal property purported to be transferred thereby.

All acts heretofore performed by deputy clerks of the superior court in taking acknowledgments, examining witnesses and probate of any wills, deeds and other instruments required or permitted by law to be recorded, are hereby validated. Nothing herein contained shall affect pending litigation.

History

(1945, c. 822; 1973, c. 445; 1977, c. 734, s. 1; 1979, c. 226, s. 2; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-31.1. It was recodified as G.S. 28A-2A-22 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Session Laws 1979, c. 226, which reenacted this section without change, provided, in s. 3, that nothing in the act would affect pending litigation and provided, in s. 4, that: "Section 2 of this act shall apply only to those acts performed on or before the effective date of this act." The act was ratified March 29, 1979, and made effective on ratification.

CASE NOTES

Cited in In re Will of Wood, 240 N.C. 134, 81 S.E.2d 127 (1954).


§ 28A-2A-23. Validation of wills when recorded without order of probate or registration upon oath and examination of subscribing witness or witnesses.

Whenever any last will and testament has been duly presented to the clerk of the superior court, and the said will together with the oath and examination of the subscribing witness or witnesses thereto taken before a notary public in the county in which the will is probated, or taken before a notary public of any other county, or before the clerk of the superior court of said county, or any other county, is duly recorded in the office of the clerk of the superior court of the said county, without a formal order of probate or registration, such will, if executed in accordance with the laws of this State, is hereby validated with respect to the probate and registration thereof and shall be sufficient to pass title to all real and personal property purported to be transferred thereby to the same extent that the said will would have done so if there had been a formal order of probate and registration. This section shall apply only to wills presented to the clerk of the superior court and recorded prior to the first day of January, 1943.

History

(1951, c. 725; 2011-344, s. 3.)

Editor's Note. - This section was formerly G.S. 31-31.2. It was recodified as G.S. 28A-2A-23 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

ARTICLE 2B. Living Probate.

Sec.

§ 28A-2B-1. Establishment before death that a will or codicil is valid.

  1. Any petitioner who is a resident of North Carolina and who has executed a will or codicil may file a petition seeking a judicial declaration that the will or codicil is valid.
  2. The petition shall be filed with the clerk of superior court and the matter shall proceed as a contested estate proceeding governed by Article 2 of Chapter 28A of the General Statutes. At the hearing before the clerk of superior court, the petitioner shall produce the original will or codicil and any other evidence necessary to establish that the will or codicil would be admitted to probate if the petitioner were deceased.
  3. Failure to use the procedure authorized by this Article shall not have any evidentiary or procedural effect on any future probate proceedings.
  4. For purposes of this Article only, a "petitioner" is a person who requests a judicial declaration that confirms the validity of that person's will or codicil.

If an interested party contests the validity of the will or codicil, that person shall file a written challenge to the will or codicil before the hearing or make an objection to the validity of the will or codicil at the hearing. Upon the filing of a challenge or the raising of an issue contesting the validity of the will or codicil, the clerk shall transfer the cause to the superior court. The matter shall be heard as if it were a caveat proceeding, and the court shall make a determination as to the validity of the will or codicil and enter judgment accordingly.

If no interested party contests the validity of the will or codicil and if the clerk of superior court determines that the will or codicil would be admitted to probate if the petitioner were deceased, the clerk of superior court shall enter an order adjudging the will or codicil to be valid.

History

(2015-205, s. 2; 2019-178, s. 1(a).)

Editor's Note. - Session Laws 2015-205, s. 11(b), made this Article effective August 11, 2015.

Effect of Amendments. - Session Laws 2019-178, s. 1(a), effective July 26, 2019, inserted "original will or codicil and any other" in the first paragraph of subsection (b).

Legal Periodicals. - For note, "Better to Play Dead? Examining North Carolina's Living Probate Law and Its Potential Effect on Testamentary Disposition," see 39 Campbell L. Rev. 187 (2017).

§ 28A-2B-2. Venue.

The venue for a petition under G.S. 28A-2B-1 is the county of this State in which the petitioner whose will or codicil is the subject of the petition resides.

History

(2015-205, s. 2; 2017-212, s. 8.2.)

Legal Periodicals. - For note, "Better to Play Dead? Examining North Carolina's Living Probate Law and Its Potential Effect on Testamentary Disposition," see 39 Campbell L. Rev. 187 (2017).

Effect of Amendments. - Session Laws 2017-212, s. 8.2, effective October 8, 2017, substituted "resides" for "is domiciled" at the end of the section.

§ 28A-2B-3. Contents of petition for will validity.

  1. Petition. - A petition requesting an order declaring that a petitioner's will or codicil is valid shall be verified and shall contain the following information:
    1. A statement that the petitioner is a resident of North Carolina and specifying the county of the petitioner's residence.
    2. Allegations that the will was prepared and executed in accordance with North Carolina law and a statement that the will was executed with testamentary intent.
    3. A statement that the petitioner had testamentary capacity at the time the will was executed.
    4. A statement that the petitioner was free from undue influence and duress and executed the will in the exercise of the petitioner's free will.
    5. A statement identifying the petitioner, and all persons believed by the petitioner to have an interest in the proceeding, including, for any interested parties who are minors, information regarding the minor's appropriate representative.
  2. The petitioner shall file a copy of the will or codicil with the petition and tender the original will or codicil at the hearing as provided in G.S. 28A-2B-1(b). If an order is entered declaring the will or codicil to be valid, the court shall affix a certificate of validity to the will or codicil.

History

(2015-205, s. 2; 2019-178, s. 1(b).)

Effect of Amendments. - Session Laws 2019-178, s. 1(b), effective July 26, 2019, rewrote the first sentence of subsection (b), which read "The petitioner shall file the original will or codicil with the petition."

§ 28A-2B-4. (Effective until October 1, 2021) Declaration by court; bar to caveat.

  1. If the court enters a judgment declaring a will or codicil to be valid, such judgment shall be binding upon all parties to the proceeding, including any persons represented in the proceeding pursuant to the provisions of G.S. 28A-2-7, and no party bound by the judgment shall have any further right to, and shall be barred from filing, a caveat to the will or codicil once that will or codicil is entered into probate following the petitioner's death. If a party shows, by clear and convincing evidence, that before and during the hearing, the petitioner was subject to financial or physical duress or coercion which was so significant that the petitioner would not have reasonably disclosed it at the hearing, the party may make a motion to the superior court that the party be permitted to file a caveat, notwithstanding the entry of the judgment.
  2. If the court declares a will or codicil to be valid, upon the motion of the petitioner or the court, the court may order that the will or codicil cannot be revoked and that no subsequent will or codicil will be valid unless the revocation or the subsequent will or codicil is declared valid in a proceeding under this Article. If the court enters such an order, any subsequent revocation of the will or codicil not declared valid in a proceeding under this Article shall be void and any subsequent will or codicil not declared valid in a proceeding under this Article shall be void and shall not be admitted to probate.
  3. If a will or codicil judicially declared valid is revoked or modified by a subsequent will or codicil, nothing in this section shall bar an interested person from contesting the validity of that subsequent will or codicil, unless that subsequent will or codicil is also declared valid in a proceeding under this Article in which the interested person was a party. If a will or codicil judicially declared valid is revoked by a method other than the execution of a subsequent will or codicil, nothing in this section shall bar an interested person from contesting the validity of that revocation, unless that revocation is also declared valid in a proceeding under this Article in which the interested person was a party.

History

(2015-205, s. 2.)

Legal Periodicals. - For note, "Better to Play Dead? Examining North Carolina's Living Probate Law and Its Potential Effect on Testamentary Disposition," see 39 Campbell L. Rev. 187 (2017).

§ 28A-2B-4. Declaration by court; bar to caveat.

  1. If the court enters a judgment declaring a will or codicil to be valid, such judgment shall be binding upon all parties to the proceeding, including any persons represented in the proceeding pursuant to the provisions of G.S. 28A-2-7, and no party bound by the judgment shall have any further right to, and shall be barred from filing, a caveat to the will or codicil once that will or codicil is entered into probate following the petitioner's death.
  2. If the court declares a will or codicil to be valid, upon the motion of the petitioner or the court, the court may order that the will or codicil cannot be revoked and that no subsequent will or codicil will be valid unless the revocation or the subsequent will or codicil is declared valid in a proceeding under this Article. If the court enters such an order, any subsequent revocation of the will or codicil not declared valid in a proceeding under this Article shall be void and any subsequent will or codicil not declared valid in a proceeding under this Article shall be void and shall not be admitted to probate.
  3. If a will or codicil judicially declared valid is revoked or modified by a subsequent will or codicil, nothing in this section shall bar an interested person from contesting the validity of that subsequent will or codicil, unless that subsequent will or codicil is also declared valid in a proceeding under this Article in which the interested person was a party. If a will or codicil judicially declared valid is revoked by a method other than the execution of a subsequent will or codicil, nothing in this section shall bar an interested person from contesting the validity of that revocation, unless that revocation is also declared valid in a proceeding under this Article in which the interested person was a party.
  4. Nothing in this Article shall preclude a party from seeking relief from a judgment pursuant to Rule 60 of the North Carolina Rules of Civil Procedure, including, without limitation, for fraud upon the court.

History

(2015-205, s. 2; 2021-53, s. 1.4A.)

Editor's Note. - Session Laws 2021-53, s. 1.5, made the deletion of the former second sentence of subsection (a) and the addition of subsection (d) by Session Laws 2021-53, s. 1.4A, effective October 1, 2021, and applicable to proceedings initiated on or after that date.

Session Laws 2021-53, s. 5.1, contains a severability clause.

Effect of Amendments. - Session Laws 2021-53, s. 1.3, deleted the former second sentence of subsection (a), which read "If a party shows, by clear and convincing evidence, that before and during the hearing, the petitioner was subject to financial or physical duress or coercion which was so significant that the petitioner would not have reasonably disclosed it at the hearing, the party may make a motion to the superior court that the party be permitted to file a caveat, notwithstanding the entry of the judgment."; and added subsection (d). For effective date and applicability, see editor's note.

Legal Periodicals. - For note, "Better to Play Dead? Examining North Carolina's Living Probate Law and Its Potential Effect on Testamentary Disposition," see 39 Campbell L. Rev. 187 (2017).

§ 28A-2B-5. Confidentiality.

Following the entry of a judgment, a party to the proceeding may move that the contents of the file be sealed and kept confidential, and upon such motion, the clerk shall seal the contents of the file from public inspection. The contents of the file shall not be released except by order of the clerk to any person other than:

  1. The petitioner named in the petition.
  2. The attorney for the petitioner.
  3. Any court of competent jurisdiction hearing or reviewing the matter.

For good cause shown, the court may order the records that are confidential under this section to be made available to a person who is not listed in this section. Following the petitioner's death, a sealed file shall be unsealed upon the request of any interested person for the purpose of probate or other estate proceedings.

History

(2015-205, s. 2.)

Editor's Note. - The section as enacted by Session Laws 2015-205, s. 2 contained a subsection (a), but no subsection (b). The subsection (a) designation was deleted at the direction of the Revisor of Statutes.

§ 28A-2B-6. Costs and attorneys' fees.

Costs, including reasonable attorneys' fees, incurred by a party in a proceeding under this Article shall be taxed against any party, or apportioned among the parties, in the discretion of the court, except that the court shall allow attorneys' fees for the attorneys of a party contesting the proceeding only if the court finds that the party had reasonable grounds for contesting the proceeding.

History

(2015-205, s. 2.)

Legal Periodicals. - For note, "Better to Play Dead? Examining North Carolina's Living Probate Law and Its Potential Effect on Testamentary Disposition," see 39 Campbell L. Rev. 187 (2017).

ARTICLE 3. Venue for Probate of Wills and Administration of Estates of Decedents.

Sec.

§ 28A-3-1. Proper county.

The venue for the probate of a will and for all proceedings relating to the administration of the estate of a decedent shall be:

  1. In the county in this State where the decedent was domiciled at the time of the decedent's death; or
  2. If the decedent had no domicile in this State at the time of death, then in any county wherein the decedent left any property or assets or into which any property or assets belonging to this estate may have come. If there be more than one such county, that county in which proceedings are first commenced shall have priority of venue; or
  3. If the decedent was a nonresident motorist who died in the State, then in any county in the State.

History

(R.C., c. 46, s. 1; C.C.P., s. 433; 1868-9, c. 113, s. 115; Code, s. 1374; Rev., s. 16; C.S., s. 1; 1931, c. 165; 1943, c. 543; 1951, c. 765; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "was domiciled at the time of the decedent's death" for "had his domicile at the time of his death" in subdivision (1).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Citizenship of Beneficiaries Controls in Diversity Action. - In determining the presence of diversity of citizenship when state law requires that an action be prosecuted in the name of a resident administrator, the citizenship of the beneficiaries, rather than that of the administrator, is relevant. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

Venue of a proceeding in the nature of a creditor's supplemental proceeding under G.S. 1-307, in which in order to issue an execution on defendant's interest under his father's will, the trial judge was required to find only that defendant possessed some interest under his father's will, was governed by G.S. 1-307, and not by this section. North Carolina Nat'l Bank v. C.P. Robinson Co., 319 N.C. 63, 352 S.E.2d 684 (1987).

Applied in Locklear v. Nixon, 129 N.C. App. 105, 497 S.E.2d 310 (1998).

Cited in In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

II. DOMICILE IN STATE.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

The will of a resident of this State should be probated in the county of his domicile. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Grant in Any Other County Void. - Where decedent had a residence in this State, a grant in any county other than that in which he resided is absolutely void. Johnson v. Corpenning, 39 N.C. 216 (1845).

Domicile at death in county of clerk who undertakes probate is essential to jurisdiction. In re Estate of Davis, 277 N.C. 134, 176 S.E.2d 825 (1970).

Domicile. - For an excellent discussion of "domicile" as distinguished from "residence," "inhabiting," etc. See Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919). See also In re Estate of Cullinan, 259 N.C. 626, 131 S.E.2d 316 (1963).

Change of County Lines. - The county referred to in this section is the county at the time of the death of the decedent, and not the one subsequently formed by a change of county lines. Hannon v. Southern Power Co., 173 N.C. 520, 92 S.E. 353 (1917).

Collateral Attack on Appointment. - An order appointing an administrator cannot be collaterally attacked on grounds that deceased was not domiciled in the county of the clerk. Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93 (1927).

III. NO DOMICILE IN STATE.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Assets Sufficient to Convey Jurisdiction. - If the assets are bona notabilia (chattels or goods of sufficient value to be accounted for), they are sufficient to convey jurisdiction to the clerk. Hyman v. Gaskins, 27 N.C. 267 (1844).

Will of Nonresident May Be Probated Where Property Situated. - When the will of a nonresident dying outside the State disposes of property in the State, the will may be offered for original probate before the clerk of the county in which the property is situated. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

The term "asset" includes intangibles. In re Edmundson, 273 N.C. 92, 159 S.E.2d 509 (1968).

The time and manner of bringing the assets into the jurisdiction are immaterial. Shields v. Union Cent. Life Ins. Co., 119 N.C. 380, 25 S.E. 951 (1896).

Automobile Liability Insurance Policy Is Asset. - A policy of automobile liability insurance issued in the name of the deceased by an insurer qualified to do business in this State or otherwise subject to service of process is an asset so as to support the appointment of an ancillary administrator. In re Edmundson, 273 N.C. 92, 159 S.E.2d 509 (1968).

Cause of Action for Death by Wrongful Act as Sufficient Asset. - Where a nonresident is killed in this State, the cause of action for death by wrongful act is sufficient under this section as a basis for the grant of letters in the county where the injury and death occurred. Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905); Fann v. North Carolina R.R., 155 N.C. 136, 71 S.E. 81 (1911).

Where death occurred as a result of a tort committed in this State, the cause of action given by the statutes of this State was an asset within the meaning of this section. In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964).

Appointment of Administrator Authorized Although Only Asset Is Wrongful Death Claim. - See In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964).

Appointment of Ancillary Administrator. - The fact that a personal representative can obtain a judgment in personam on a cause of action for wrongful death which arose in another state is sufficient to authorize the clerk of the superior court to appoint an ancillary administrator. In re Scarborough, 261 N.C. 565, 135 S.E.2d 529 (1964).


§ 28A-3-2. Proceedings to determine venue.

  1. If proceedings are commenced in more than one county or if upon commencement of a proceeding a question arises as to the proper county of venue, or if for any other reason a delay arises in determining venue, the matter shall be referred by the clerk of superior court for a hearing and determination by the senior resident superior court judge or any judge assigned to hold the superior courts of the district which includes the county where the proceedings were first commenced. Upon the filing of a motion or petition to determine venue, the judge shall determine which is the proper county for administration of the estate and stay proceedings in all other counties. The judge shall make such orders as are necessary to transfer the entire proceedings to the proper county. The clerk of superior court of each county in which proceedings are stayed shall retain a true copy of the entire file and transmit the original to the clerk of superior court of such county as the judge directs.
  2. Any interested person may file a petition to determine proper venue within the time prescribed by G.S. 28A-3-5. The matter shall be referred by the clerk of superior court by or before whom the petition is filed for a hearing and determination by the senior resident superior court judge or any judge assigned to hold the superior courts of the district that includes the county where the proceedings were first commenced.
  3. A proceeding shall be deemed commenced by the offering of a will for probate or by applying for letters of administration as provided by G.S. 28A-6-1 through 28A-6-5 or by applying for letters of collection as provided by G.S. 28A-11-1 through 28A-11-4 and the proceeding first legally commenced shall extend to all of the property or assets of the decedent in this State.

History

(1973, c. 1329, s. 3; 1975, c. 19, s. 7; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (a), in the first sentence, deleted "then" following "determining venue," "before whom the question arises" following "clerk of superior court," and "before" following "hearing," in the second sentence, added "Upon the filing of a motion or petition to determine venue," and in the third sentence, substituted "The judge" for "He"; and added subsection (a1).

§ 28A-3-3. Procedure after determination of improper appointment.

Where a person has been improperly appointed, and a different person in another county is determined under G.S. 28A-3-2(a) to be the properly appointed personal representative, such improperly appointed personal representative shall surrender to the properly appointed personal representative all assets of the estate under control of the improperly appointed personal representative. In addition such improperly appointed personal representative shall file an accounting with the clerk of superior court in the proper county according to the form prescribed for collectors by G.S. 28A-11-4.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, added "of the improperly appointed personal representative" in the first sentence.

§ 28A-3-4. Liability of personal representative appointed in improper county.

When a personal representative has been appointed in an improper county, and a different person in another county is determined under G.S. 28A-3-2(a) to be the properly appointed personal representative, such improperly appointed personal representative shall not thereby incur personal liability for administrative acts performed prior to the transfer except as provided in G.S. 28A-13-10.

History

(1973, c. 1329, s. 3.)

§ 28A-3-5. Waiver of venue.

If questions as to priority of venue are not raised within three months after the issuance of letters testamentary or letters of administration to the personal representative, the validity of the proceeding shall not be affected by any error in venue.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Venue Challenge Precluded. - Caveators who failed to raise objections until over four months after the issuance of testamentary letters were precluded from challenging venue under this section. In re Estate of Hodgin, 133 N.C. App. 650, 516 S.E.2d 174 (1999).


ARTICLE 4. Qualification and Disqualification for Letters Testamentary and Letters of Administration.

Sec.

§ 28A-4-1. Order of persons qualified to serve.

  1. Letters Testamentary. - Letters testamentary shall be granted to the executor or executors named or designated in the will, or if no such person qualifies, to any substitute or successor executor named or designated in the will. If no person so named or designated qualifies, letters testamentary shall be granted to some other person nominated by a person upon whom the will expressly confers the authority to make such nomination. If none of the foregoing persons qualifies, the clerk shall grant letters of administration in accordance with subsection (b) of this section.
  2. Letters of Administration. Letters of administration shall be granted to persons who are qualified to serve, in the following order, unless the clerk of superior court in the discretion of the clerk of superior court determines that the best interests of the estate otherwise require:
    1. The surviving spouse of the decedent;
    2. Any devisee of the testator;
    3. Any heir of the decedent;
    4. Any next of kin, with a person who is of a closer kinship as computed pursuant to G.S. 104A-1 having priority;
    5. Any creditor to whom the decedent became obligated prior to the decedent's death;
    6. Any person of good character residing in the county who applies therefor; and
    7. Any other person of good character not disqualified under G.S. 28A-4-2.
  3. Any interested person may file a petition pursuant to Article 2 of this Chapter alleging that all or any of the persons described in subsection (b) of this section is disqualified in accordance with G.S. 28A-4-2.

When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the clerk of superior court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants.

History

(R.C., c. 46, ss. 2, 3; C.C.P., s. 456; 1968-9, c. 113, s. 115; Code, s. 1376; Rev., s. 3; C.S., s. 6; 1949, c. 22; 1973, c. 1329, s. 3; 1987, c. 357; 2011-344, s. 4.)

Cross References. - As to who may act in the event the executor fails to apply to have the will proved, see G.S. 28A-2A-2.

As to public administrator, see G.S. 28A-12-4.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the last sentence of subsection (a), deleted "or if the clerk of superior court upon hearing finds that none of the foregoing persons is qualified in accordance with G.S. 28A-4-2" following "qualifies" and added "of this section"; in the introductory paragraph of subsection (b), substituted "the discretion of the clerk of superior court" for "his discretion"; in subdivision (b)(4), substituted "the decedent's" for "his"; and added subsection (c).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Reserved for future annotations.

II. LETTERS TESTAMENTARY.

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

No conflict of interest is created by mere fact that executor also occupies status of creditor. Tyson v. North Carolina Nat'l Bank, 53 N.C. App. 189, 280 S.E.2d 478 (1981), modified, 305 N.C. 136, 286 S.E.2d 561 (1982).

III. LETTERS OF ADMINISTRATION.

.

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

Right to administer on estate of an intestate is entirely statutory. In re Edwards' Estate, 234 N.C. 202, 66 S.E.2d 675 (1951).

Selection Among Persons of Equal Degree. - Where there are several persons entitled in equal degree to administer, the clerk may select the one who, in his discretion, is most fit. Garrison v. Cox, 95 N.C. 353 (1886).

Next of Kin. - As to right to administer of next of kin, under language of former statute, see Carthey v. Webb, 6 N.C. 268 (1813); Moore v. Moore, 12 N.C. 352 (1827); Stoker v. Kendall, 44 N.C. 242 (1853); Atkins v. McCormick, 49 N.C. 274 (1857); Little v. Berry, 94 N.C. 433 (1886); In re Saville, 156 N.C. 172, 72 S.E. 220 (1911); In re Edwards' Estate, 234 N.C. 202, 66 S.E.2d 675 (1951).

For purposes of this section, "next of kin" refers to the class of blood relatives of the decedent; thus, the court erred in determining that the term was synonymous with "heirs," as used in G.S. 41-6.1. In re Estate of Bryant, 116 N.C. App. 329, 447 S.E.2d 468 (1994).

Effect of Appointment Out of Order. - The appointment as administrator of a person other than the one designated by this section is not void, though the proper person has not renounced; but it may be set aside in favor of such proper person provided he has not waived his right to administer. Garrison v. Cox, 95 N.C. 353 (1886).

Correction of Error in Appointment. - Petitioner, an heir at law and beneficiary under will, had a higher preference of appointment than respondent, who was neither an heir nor a beneficiary, and as the respondent should not have been appointed administrator C.T.A. without notice to the petitioner, it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A. The fact that petitioner may not have been qualified to serve as administrator C.T.A. under G.S. 28A-4-2(4) because she was a nonresident of this State who had not appointed a process agent was irrelevant. In re Estate of Cole, 80 N.C. App. 720, 343 S.E.2d 263 (1986).

Estoppel Against Widow. - Though the widow has a prior right to administration over a brother of the decedent, where it appears that at the time the letters were duly granted to the brother she had shown no disposition to set up her right before the clerk, the appointment of the brother will stand. Tyer v. J.B. Blades Lumber Co., 188 N.C. 268, 124 S.E. 305 (1924).

Assignee After Death Not a Creditor. - An assignment of debts of a person after his death does not make the assignee such a creditor as to entitle him to administer the estate of the deceased. Pearce v. Castrix, 53 N.C. 71 (1860).

Where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is rescinded for every purpose, including the wife's right to share in husband's estate and her right to administer the estate, insofar as it remains executory. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, rev'd on other grounds, 291 N.C. 386, 230 S.E.2d 541 (1976).

Possessor of Insurance Policy. - The possession of a policy of life insurance authorizes the possessor to administer on the estate of the assured, a nonresident. Page v. Life Ins. Co., 131 N.C. 115, 42 S.E. 543 (1902). See Shields v. Union Cent. Life Ins. Co., 119 N.C. 380, 25 S.E. 951 (1896).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6. Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, rev'd on other grounds, 284 N.C. 407, 200 S.E.2d 622 (1973).

De Novo Hearing on Appeal. - Upon appeal from the order of the clerk of superior court the petitioners were entitled to a de novo hearing by the judge of superior court on both the right of respondent to qualify as administratrix and her right to share in the estate of her deceased husband. And the judge of superior court in the exercise of his inherent powers had the right to submit to the jury the one issue that would resolve both the right to qualify as administratrix, a probate matter, and the right to share in the decedent's estate, which is not a probate matter. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, rev'd on other grounds, 291 N.C. 386, 230 S.E.2d 541 (1976).


§ 28A-4-2. Persons disqualified to serve as personal representative.

No person is qualified to serve as a personal representative who:

  1. Is under 18 years of age;
  2. Has been adjudged incompetent in a formal proceeding and remains under such disability;
  3. Is a convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia and whose citizenship has not been restored;
  4. Is a nonresident of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court; or who is a resident of this State who has, subsequent to appointment as a personal representative, moved from this State without appointing such process agent;
  5. Is a corporation not authorized to act as a personal representative in this State;
  6. Repealed by Session Laws 1999-133, s. 1.
  7. Has lost that person's rights as provided by Chapter 31A;
  8. Is illiterate;
  9. Is a person whom the clerk of superior court finds otherwise unsuitable; or
  10. Is a person who has renounced either expressly or by implication as provided in G.S. 28A-5-1 and 28A-5-2.
  11. Is a person who is employed by, acts as an agent for, serves as legal counsel for, or conducts business in any contractual capacity with a property finder, as defined in G.S. 116B-52(11a), who has entered into an agreement subject to G.S. 116B-78 to locate the estate property defined by the agreement.

History

(C.C.P., s. 457; Code, ss. 1377, 1378, 2162; Rev., s. 5; C.S., s. 8; 1973, c. 1329, s. 3; 1999-133, s. 1; 2011-344, s. 4; 2021-157, s. 2(a).)

Cross References. - As to ineligibility of foreign corporation to qualify as executor, administrator, etc., in this State, with certain exceptions, see G.S. 55-15-05.

Editor's Note. - Session Laws 2021-157, s. 2(g), made subdivision (11) of this section, as added by Session Laws 2021-157, s. 2(a), effective January 1, 2022, and applicable to agreements entered into on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "that person's" for "his" in subdivision (7).

Session Laws 2021-157, s. 2(a), added subdivision (11). For effective date and applicability, see editor's note.

Legal Periodicals. - For legislative survey of trusts and estates, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Testator has the right to name the person who shall administer his estate after his death, provided his designate is not disqualified by law. In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).

Right of Person Named as Executor to Administer Estate. - The person testator names as executor has the right to administer the estate. In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).

When Right Ceases. - He can be deprived of that right only by his refusal or neglect to probate the will or to take out letters, or by his inability or unsuitableness to execute the trust. In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).

Statutory specifications of disqualifications for service as a personal representative cannot be superseded by the broad general policy of the law which gives effect to the desires of a testator and sees that his intentions are carried out so far as they can be ascertained. In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).

Personal Interests Antagonistic to Estate as Grounds for Disqualification. - When it appears that the personal interests of the prospective executor are so antagonistic to the interests of the estate and those entitled to its distribution that the same person cannot fairly represent both, the testator's nominee is unsuitable and disqualified as a matter of law. This is especially true where the conflict is one which the testator did not know or foresee. In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977).

Right to Nominate Depends upon the Right to Administer. - See Boynton v. Heartt, 158 N.C. 488, 74 S.E. 470 (1912).

Public administrator could not be removed at the instance of nonresidents who had no right of appointment as administrator in consequence of not having the right to administer upon the estate in this State. Boynton v. Heartt, 158 N.C. 488, 74 S.E. 470 (1912).

Correction of Error in Appointment. - Petitioner, an heir at law and beneficiary under will, had a higher preference of appointment than respondent, who was neither an heir nor a beneficiary, and as the respondent should not have been appointed administrator C.T.A. without notice to the petitioner, it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A. The fact that petitioner may not have been qualified to serve as administrator C.T.A. under subdivision (4) of this section because she was a nonresident of this State who had not appointed a process agent was irrelevant. In re Estate of Cole, 80 N.C. App. 720, 343 S.E.2d 263 (1986).

Appointment of Replacement Representative. - The trial court did not abuse its discretion in appointing the public administrator, rather than the testamentary alternative, to finalize the estate after removing the personal representative for misconduct. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Collateral Attack for Disregard of Statutory Provisions. - When, in disregard of provisions prohibiting the issuance of letters to persons adjudged incompetent, letters were issued to a foreign executor, this was a mere irregularity and could not be collaterally attacked in an action by the executor. Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20 (1912).

Applied in Storey v. Hailey, 114 N.C. App. 173, 441 S.E.2d 602 (1994); In re Estate of Montgomery, 137 N.C. App. 564, 528 S.E.2d 618 (2000).

Cited in Messer v. American Gems, Inc., 612 F.2d 1367 (4th Cir. 1980); In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009); In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010).

II. PERSONS UNDER 18.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

A widow under 21 [now 18] is not eligible to appointment as administratrix. The court may, however, appoint an administrator during her minority and, on arriving at full age, grant her the administration; or it may give the office to her appointee. Wallis v. Wallis, 60 N.C. 78 (1863).

III. INCOMPETENTS.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Finding of Incompetency Based on Undisclosed and Unrecorded Information. - Where the record shows that the conclusion of the clerk as to the alleged incompetency of the petitioner rests upon undisclosed and unrecorded information obtained by the clerk from third persons outside of court in the absence of the petitioner and his counsel, who were not apprised of the identity of such third persons or accorded any opportunity to cross-examine or confute them, the refusal of the clerk to issue letters of administration to the petitioner is error. In re Edwards' Estate, 234 N.C. 202, 66 S.E.2d 675 (1951).

Illiteracy as Incompetency under Former Statute. - See Stephenson v. Stephenson, 49 N.C. 472 (1857).

IV. NONRESIDENTS.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Noncitizen Entitled to Federal Forum. - Diversity jurisdiction exists for the protection of the noncitizen who is obliged to sue or to be sued in the state of his adversary. It is for that reason that state statutes or decisions that require a noncitizen to appoint an in-state representative should not have the effect of depriving the noncitizen of the federal forum that Congress has provided him. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

Citizenship of Beneficiaries Controls in Diversity Action. - In determining the presence of diversity of citizenship when state law requires that an action be prosecuted in the name of a resident administrator, the citizenship of the beneficiaries, rather than that of the administrator, is relevant. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

ARTICLE 5. Renunciation by Personal Representative.

Sec.

§ 28A-5-1. Renunciation by executor.

  1. Express Renunciation by Executor. - Any person named or designated as executor in a duly probated will may renounce the office by filing with the clerk of superior court a writing signed by such person, and acknowledged or proved to the satisfaction of the clerk.
  2. Implied Renunciation by Executor. - If any person named or designated as executor fails to qualify or to renounce within 30 days after the will had been admitted to probate, (i) the clerk of superior court may issue a notice to that person to qualify or move for an extension of time to qualify within 15 days, or (ii) any other person named or designated as executor in the will or any interested person may file a petition in accordance with Article 2 of this Chapter for an order finding that person named or designated as executor to be deemed to have renounced. If that person does not file a response to the notice or petition within 15 days from the date of service of the notice or petition, the clerk of superior court shall enter an order adjudging that the person has renounced. If the person files a response within 15 days from the date of service of the notice or petition requesting an extension of time within which to qualify or renounce, upon hearing, the clerk of superior court may grant to that person a reasonable extension of time within which to qualify or renounce for cause shown. If that person qualifies within 15 days of the date of service of the notice or petition, the clerk of superior court shall dismiss that notice or petition, without prejudice, summarily and without hearing.
  3. Procedure upon Renunciation. - Upon renunciation by a person named or designated as executor, letters shall be issued to some other person as provided in G.S. 28A-4-1.

History

(C.C.P., ss. 450, 451; Code, ss. 2163, 2164; Rev., ss. 10, 13; C.S., ss. 13, 16; 1931, c. 183; 1953, c. 78, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4; 2012-194, s. 13(a).)

Cross References. - As to powers of surviving personal representative, see G.S. 28A-13-9.

As to resignation of trustees, see G.S. 36C-7-705.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote subsection (b) to the extent that a detailed comparison is impracticable.

Session Laws 2012-194, s. 13(a), effective July 17, 2012, substituted "notice" for "motion" throughout subsection (b).

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Common-Law Rule. - See McIntyre v. Proctor, 145 N.C. 288, 59 S.E. 39 (1907). See Washington v. Blunt, 43 N.C. 253 (1852).

Executor may, by permission of the superior court, renounce all right to the executorship and withdraw from a suit. Sawyer v. Dozier, 27 N.C. 97 (1844).

Time of Renunciation. - A court of probate may accept a renunciation at any time before the executor intermeddled with the effects of his testator, even after he has proved the will. The same rule applies to an executor of an executor under a prior will. Mitchell v. Adams, 23 N.C. 298 (1840).

When Leave of Court Required. - After probate an executor cannot renounce at his own pleasure, and must do so by leave of the court. Mitchell v. Adams, 23 N.C. 298 (1840).

Letters Revoked for Cause Only. - The clerk should revoke letters testamentary, where the executor has entered upon performance of his duties, only by reason of some unfitness or unfaithfulness on the part of trustee, and never simply because the parties desire it. McIntyre v. Proctor, 145 N.C. 288, 59 S.E. 39 (1907).

Renunciation Must Appear of Record. - Renunciation of the executor must appear of record to enable the court to appoint an administrator with the will annexed. Springs v. Irwin, 28 N.C. 27 (1845).

Renunciation by Some of Several. - Where there are several persons of the same class entitled to administer, renunciation by some of them does not affect the rights of those not renouncing to administer. In re Jones' Estate, 177 N.C. 337, 98 S.E. 827 (1919).

Retraction of Renunciation. - A renouncing executor may retract his renunciation at any time before administration is granted, and then administer. Any intermeddling with the estate before qualifying is evidence of such retraction. Davis v. Inscoe, 84 N.C. 396 (1881).

Right of Reinstatement. - There are decisions that an executor who has renounced can, under some circumstances, come in and qualify. See Davis v. Inscoe, 84 N.C. 396 (1881); Wood v. Sparks, 18 N.C. 389 (1835). But there is no case in which he has renounced with the formalities of this statute and afterwards has qualified, certainly not after the lapse of 20 years. Ryder v. Oates, 173 N.C. 569, 92 S.E. 508 (1917).

Powers of Administrator C.T.A. - After renunciation by the executor, the administrator with the will annexed is competent to exercise the executor's powers under the will. Saunders v. Saunders, 108 N.C. 327, 12 S.E. 909 (1891).

Cited in In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977); In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010).


§ 28A-5-2. Renunciation of right to administer.

  1. Express Renunciation. - Any person entitled to apply for letters of administration may renounce the office by filing with the clerk of superior court a writing signed by such person, and acknowledged or proved to the satisfaction of the clerk.
  2. Implied Renunciation. -
    1. If any person entitled to apply for letters of administration fails to apply therefor within 30 days from the date of death of the intestate, (i) the clerk of superior court may issue a notice to the person to qualify or move for an extension of time to qualify within 15 days, or (ii) any interested person may file a petition in accordance with Article 2 of this Chapter for an order finding that person to be deemed to have renounced. If the person does not file a response to the notice or petition within 15 days from the date of service of the notice or petition, the clerk of superior court shall enter an order adjudging that the person has renounced. If the person files a response within 15 days from the date of service of the notice or petition requesting an extension of time within which to qualify or renounce, upon hearing, the clerk of superior court may grant to that person a reasonable extension of time within which to qualify or renounce for cause shown. If the person qualifies within 15 days of the date of service of the notice or petition, the clerk of superior court shall dismiss the notice or petition, without prejudice, summarily and without hearing and the clerk of superior court shall issue letters to some other person as provided in G.S. 28A-4-1. No notice shall be required to be given to any interested person, but the clerk may give notice as the clerk in the clerk's discretion may determine.
    2. If no person entitled to administer applies for letters of administration within 90 days after the date of death of an intestate, then the clerk of superior court may, in the clerk's discretion, enter an order declaring all prior rights to apply for letters of administration to be renounced, and issue letters to some suitable person as provided in G.S. 28A-4-1.
  3. Nomination by Person Renouncing. - Any person who expressly renounces the person's prior right to apply for letters of administration may at the same time nominate in writing some other person not disqualified under G.S. 28A-4-2 to be named as personal representative, and such designated person shall be entitled to the same priority of right to apply for letters of administration as the person making the nomination.

History

(R.C., c. 46, ss. 2, 3; C.C.P., ss. 456, 460(a); 1868-9, c. 113, s. 115; c. 203; Code, ss. 1376, 1380; Rev., ss. 3, 12; C.S., ss. 6, 15; 1949, c. 22; 1973, c. 1329, s. 3; 2011-344, s. 4; 2012-194, s. 13(b).)

Cross References. - As to when a public administrator shall apply for letters, see G.S. 28A-12-4.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote subsection (b) to the extent that a detailed comparison is impracticable.

Session Laws 2012-194, s. 13(b), effective July 17, 2012, substituted "notice or petition" for "motion" throughout subdivision (b)(1).

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Applicable to Intestacy Only. - The provisions of this section contemplate cases of intestacy. Hence in cases of testacy where no executor is appointed in the will, the rights of the parties to administer are governed by G.S. 28A-4-1 without reference to the six months' (now 90-day) limitation contained in this section. In re Jones' Estate, 177 N.C. 337, 98 S.E. 827 (1919).

Right to Administer Not Absolute Nor Exclusive. - See Stoker v. Kendall, 44 N.C. 242 (1853).

Means of Quickening Procedure. - The true intent and meaning of this section is that the persons primarily entitled to administration may have six months (now 90 days) after the death of the intestate to assert their rights and comply with the law; and a party wishing to quicken their diligence within that time must do so by citation - he may not, by obtaining letters within six months (now 90 days), deprive the party primarily entitled to administration should such party apply for letters before the expiration of the six months' (now 90-day) period. Williams v. Neville, 108 N.C. 559, 13 S.E. 240 (1891).

Persons primarily entitled to administration shall assert their right and comply with the law within six months (now 90 days) after the death of the intestate, and a party interested, wishing to quicken their diligence within that time, must do so by citation as prescribed by statute, or if a person, not preferred, applied for administration within six months (now 90 days), he must produce the written renunciation of the person or persons having prior right. Royals v. Baggett, 257 N.C. 681, 127 S.E.2d 282 (1962).

Unreasonable Delay. - No one who has precedence in a claim for letters loses such rights by delay merely, but by unreasonable delay, which is a matter of law. Hughes v. Pipkin, 61 N.C. 4 (1866).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6. Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, rev'd on other grounds, 284 N.C. 407, 200 S.E.2d 622 (1973).

Renunciation Presumed After 90 Days. - After the expiration of six months (now 90 days) from the death of the decedent, those entitled to prior rights having failed to apply, all rights of preference may be treated as renounced, and a suitable person to administer upon the estate may be appointed. Hill v. Alspaugh, 72 N.C. 402 (1875).

Appointment Within 90 Days. - If the person entitled to apply for letters of administration, in answer to citation, names his appointee, and such person, after appointment, fails to qualify, then, though six months (now 90 days) have to expired, the clerk is authorized to appoint another. Williams v. Neville, 108 N.C. 559, 13 S.E. 240 (1891).

Effect of Appointment. - Where the clerk has appointed an administrator under this section, a debtor of the estate cannot maintain the position that the appointment of a public administrator was necessary to receive payment of the debt. Brooks v. E.H. Clement Co., 201 N.C. 768, 161 S.E. 403 (1931).

Appointment Not Revoked After 90 Days. - If the parties who have precedence to administer fail to apply within six months (now 90 days) from death of the deceased, an appointment by the clerk of a proper person after that period will not be revoked. Withrow v. DePriest, 119 N.C. 541, 26 S.E. 110 (1896).

Failure of Public Administrator to Apply Within Six Months (now 90 Days). - Though it is the duty of the public administrator to apply after six months (now 90 days), if, before his appointment at any time, even after six months (now 90 days), persons prior in rights to administer apply, they are entitled to appointment. In re Bailey's Will, 141 N.C. 193, 53 S.E. 844 (1906).

Cited in Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994); State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010); In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010).


ARTICLE 6. Appointment of Personal Representative.

Sec.

§ 28A-6-1. Application for letters; grant of letters.

  1. The application for letters of administration or letters testamentary shall be in the form of an affidavit sworn to before an officer authorized to administer oaths, signed by the applicant or the applicant's attorney, which may be supported by other proof under oath in writing, all of which shall be recorded and filed by the clerk of superior court, and shall allege all the following facts:
    1. The name, and to the extent known, the domicile and the date and place of death of the decedent.
    2. The legal residence and mailing address of the applicant.
    3. The names, ages, and mailing addresses of the decedent's heirs and devisees, including the names and mailing addresses of the guardians of those having court-appointed guardians, so far as all of these facts are known or can with reasonable diligence be ascertained. It is sufficient to allege "minor" for the age of an heir or devisee under the age of eighteen and "18+" or "adult" for the age of an heir or devisee who is eighteen years of age or older.
    4. That the applicant is the person entitled to apply for letters, or that the applicant applies after persons having prior right to apply are shown to have renounced under Article 5 of this Chapter, or that the applicant applies subject to the provisions of G.S. 28A-6-2(1), and that the applicant is not disqualified under G.S. 28A-4-2.
    5. The nature and probable value of the decedent's property, both real and personal, and the location of such property, so far as all of these facts are known or can with reasonable diligence be ascertained.
    6. If the decedent was not domiciled in this State at the time of the decedent's death, a schedule of the decedent's property located in this State, and the name and mailing address of the decedent's domiciliary personal representative, or if there is none, whether a proceeding to appoint one is pending.
  2. If it appears to the clerk of superior court that the application and supporting evidence comply with the requirements of subsection (a) of this section and on the basis thereof the clerk finds that the applicant is entitled to appointment, the clerk shall issue letters of administration or letters testamentary to the applicant unless in the clerk's discretion the clerk determines that the best interests of the estate would be served by delaying the appointment of a personal representative, in which case the clerk may appoint a collector as provided in Article 11.
  3. The clerk of superior court may rely upon the following as evidence of death:
    1. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred.
    2. A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, evidencing the date of death.
    3. A certificate or authenticated copy of medical records, including a record of death, evidencing the date of death.
    4. Any other evidence that the clerk of superior court deems sufficient to confirm the date of death.

History

(C.C.P., s. 461; Code, s. 1381; Rev., s. 26; C.S., s. 28; 1973, c. 1329, s. 3; 2011-344, s. 4; 2019-178, s. 2.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the introductory paragraph of subsection (a), substituted "the applicant's" for "his"; throughout subdivision (a)(4), substituted "the applicant" for "he"; throughout subdivision (a)(6), substituted "the decedent's" for "his"; in subsection (b), substituted "the clerk" for "he" throughout and inserted "of this section"; and added subsection (c).

Session Laws 2019-178, s. 2, effective July 26, 2019, in subsection (a), inserted "all" preceding "the following facts" in the introductory paragraph, added the last sentence in subdivision (a)(3), and made stylistic changes.

CASE NOTES

Appointment Based on Legal Presumption of Death. - Upon an affidavit showing that a person had been absent for over seven years and had not been heard from by relatives or friends, the fact that at the time of the appointment it was contemplated that an action should be brought to determine any question that might arise contrary to the legal presumption of death does not invalidate the appointment or nullify the proof afforded by the jurisdictional affidavit. Chamblee v. Security Nat'l Bank, 211 N.C. 48, 188 S.E. 632 (1936), decided under prior law.

Administration of Living Person's Estate Is Void. - Grant of administration upon the estate of a living man and a decree for the sale of his lands are void for lack of jurisdiction. Springer v. Shavender, 118 N.C. 33, 23 S.E. 976 (1896), decided under prior law.

Disqualification. - Considering the legislative history and the purpose of G.S. 31A-1(a), "living in adultery" means a spouse engages in repeated acts of adultery within a reasonable period of time preceding the death of her spouse; therefore, "living in adultery" requires a showing of something more than "committing adultery," or a single act of adultery, and something less than "residing" in adultery, because the latter construction would permit spouses to engage in habitual adultery with those with whom they do not reside and nevertheless be qualified to administer their decedent spouse's estate under this section. In re Estate of Montgomery, 137 N.C. App. 564, 528 S.E.2d 618 (2000).

Validity of Letters of Administration. - North Carolina letters of administration were valid when issued by a clerk for a county under G.S. 28A-6-1(a), as an ancillary administration was later commenced in another state; thus, the clerk had jurisdiction over the estate under G.S. 28A-2-1. In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009).


§ 28A-6-2. Letters issued without notice; exceptions.

Letters of administration or letters testamentary may be issued without notice, including upon a finding of implied renunciation under G.S. 28A-5-1(b) or G.S. 28A-5-2(b), except:

  1. When the applicant is not entitled to priority of appointment under G.S. 28A-4-1, all persons entitled to an equal or higher preference shall be given 15 days prior to written notice of that application, unless they have renounced in accordance with the provisions of Article 5 of this Chapter.
  2. The clerk of superior court may in any case require that prior written notice be given to such interested persons as the clerk, in the clerk's discretion, may designate prior to the granting of letters.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the introductory language, inserted "including upon a finding of implied renunciation under G.S. 28A-5-1(b) or G.S. 28A-5-2(b)"; in subdivision (1), substituted "shall be given 15 days prior to written notice of that application" for "shall be given notice by citation as provided in G.S. 28A-5-2(b)(1)"; and in subdivision (2), inserted "prior written" and substituted "the clerk, in the clerk's discretion" for "he, in his discretion."

CASE NOTES

Correction of Error in Appointment. - Petitioner, an heir at law and beneficiary under will, had a higher preference of appointment than respondent, who was neither an heir nor a beneficiary, and as the respondent should not have been appointed administrator C.T.A. without notice to the petitioner, it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A. The fact that petitioner may not have been qualified to serve as administrator C.T.A. under G.S. 28A-4-2(4) because she was a nonresident of this State who had not appointed a process agent was irrelevant. In re Estate of Cole, 80 N.C. App. 720, 343 S.E.2d 263 (1986).


§ 28A-6-3. Appointment of successor to personal representative.

When the appointment of a sole or last surviving personal representative is terminated by death, resignation pursuant to Article 10 of this Chapter, or revocation pursuant to Article 9 of this Chapter, the clerk of superior court shall appoint another personal representative as provided by G.S. 28A-4-1 to act as successor to the sole or last surviving personal representative. When two or more personal representatives have qualified, and the appointment of one or more of them is terminated by death, resignation or revocation, leaving in office one or more personal representatives, the appointment of successors shall not be required unless:

  1. The clerk of superior court determines, in the clerk's discretion, that it is in the best interest of the estate to appoint a successor or successors to such personal representative or personal representatives, or
  2. In the case of executors, the will so provides.

History

(1868-9, c. 113, s. 92; Code, s. 1521; Rev., s. 35; C.S., s. 32; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, added "to the sole or last surviving personal representative" in the first sentence of the introductory paragraph; and substituted "the clerk's" for "his" in subdivision (1).

CASE NOTES

Clerk is required to immediately appoint some person to succeed in the administration of the estate, and it is immaterial so far as continuity of the succession is concerned whether the successor be administrator d.b.n., executor, administrator c.t.a., administrator c.t.a., d.b.n., or collector. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697 (1946), decided under prior law.

Successor Cannot Be Appointed Until Vacancy Exists. - Since a person to whom letters testamentary have been issued has authority to represent the estate until his death, resignation or until he has been removed or the letters testamentary have been revoked in accordance with statutory procedure, the appointment by the clerk of an administrator c.t.a., d.b.n., upon petition of the residuary legatee alleging failure of the executor to account to the estate for rents and profits, is void, the clerk being without jurisdiction to make the appointment. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562 (1940), decided under prior law.


§ 28A-6-4. Right to contest appointment; procedure.

Prior to the issuance of letters, any interested person may, by written petition filed with the clerk of superior court, and served upon such interested persons as the clerk of superior court may direct, contest the issuance of letters of administration or letters testamentary to a person otherwise entitled to apply for letters of administration or letters testamentary. After a petition has been duly filed, the clerk of superior court shall conduct a hearing and determine to whom letters shall be issued. Appeal may be taken from the order of the clerk as in an estate proceeding pursuant to G.S. 1-301.3.

History

(C.C.P., s. 462; Code, s. 1382; Rev., s. 27; C.S., s. 29; 1973, c. 1329, s. 3; 1975, c. 300, s. 2; 2011-344, s. 4.)

Cross References. - As to the running of the statute of limitations when there is contest, see G.S. 1-24.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the first sentence, which formerly read: "Prior to the issuance of letters, any interested person may, by written objection filed with the clerk of superior court, with notice to the applicant, contest the issuance of letters of administration or letters testamentary to such applicant," rewrote the second sentence, which formerly read: "After an objection has been duly filed, the clerk of superior court shall conduct a hearing and determine whether letters shall issue to the applicant," and in the last sentence, substituted "in an estate proceeding pursuant to G.S. 1-301.3" for "in a special proceeding."

CASE NOTES

Right of interested persons to contest appointment of decedent's personal representative and the procedure for doing so under the former law, G.S. 28-30 and 28-32, remains substantially unchanged under the present law. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), decided under prior law.

Title of Property Not Question of Fact. - A dispute as to the title of property of the decedent is not such an issue of fact as is contemplated by this section. In re Tapp's Estate, 114 N.C. 248, 19 S.E. 150 (1894), decided under prior law.

Collateral Attack after Letters Issued. - Once the letters are issued and appointment made, they cannot be collaterally attacked. Thus, in an action by the administrator against defendant for damages for killing the decedent negligently, the legality of his appointment on the ground of residence cannot be raised. Fann v. North Carolina R.R., 155 N.C. 136, 71 S.E. 81 (1911); Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20 (1912), decided under prior law.


§ 28A-6-5. Letters not subject to collateral attack.

The validity of letters issued shall not be subject to collateral attack.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Once letters are issued and appointment made, they cannot be collaterally attacked. Thus, in an action by the administrator against defendant for damages for killing the decedent negligently, the legality of his appointment on the ground of residence cannot be raised. Fann v. North Carolina R.R., 155 N.C. 136, 71 S.E. 81 (1911); Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20 (1912), decided under prior law.

Validity of letters of administration were not subject to collateral attack under G.S. 28A-6-5. In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009).


ARTICLE 7. Oath.

Sec.

§ 28A-7-1. Oath required before letters issue.

Before letters testamentary, letters of administration or letters of collection are issued to any person, the person shall take and subscribe an oath or affirmation before the clerk of superior court, or before any other officer of any state or country authorized by the laws of North Carolina to administer oaths, that the person will faithfully and honestly discharge the duties of the person's office. Such oath or affirmation shall be in the form prescribed in G.S. 11-11, and shall be filed in the office of the clerk of superior court.

History

(C.C.P., ss. 467, 468; 1870-1, c. 93; Code, ss. 1387, 1388, 2169; Rev., s. 29; C.S., s. 39; 1923, c. 56; 1967, c. 41, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the person" for "he," or similar language throughout the section.

ARTICLE 8. Bond.

Sec.

§ 28A-8-1. Bond required before letters issue; when bond not required.

  1. Except as otherwise provided in subsection (b) of this section, every personal representative, before letters are issued, shall give bond, conditioned as provided in G.S. 28A-8-2.
  2. No bond shall be required of:
    1. A resident executor, unless the express terms of the will require a resident executor to give bond;
    2. A nonresident executor (or a resident executor who moves from this State subsequent to that executor's appointment) who has appointed a resident agent to accept service of process as provided in G.S. 28A-4-2(a) [28A-4-2(4)], when the express terms of the will excuse a nonresident executor from giving bond;
    3. A nonresident executor, when there is a resident executor named who has qualified as coexecutor unless the express terms of the will require them to give bond, or the clerk of superior court finds that such bond is necessary for the protection of the estate; or
    4. A personal representative appointed solely for the purpose of bringing an action for the wrongful death of the deceased until such time as the personal representative shall receive property into the estate of the deceased; or
    5. A personal representative that is a trust institution licensed under G.S. 53-159;
    6. A personal representative of an intestate who resides in the State of North Carolina when all of the heirs of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the personal representative from the necessity of giving bond; or
    7. A personal representative where the personal representative receives all the property of the decedent;
    8. An administrator with the will annexed who resides in the State of North Carolina when all of the devisees of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the administrator with the will annexed of the necessity of giving bond.

History

(C.C.P., ss. 467, 468; 1870-1, c. 93; Code, ss. 1387, 1388, 2169; Rev., s. 29; C.S., s. 39; 1923, c. 56; 1967, c. 41, s. 1; 1973, c. 1329, s. 3; 1975, c. 300, s. 3; 1977, c. 29; 1981, c. 428; c. 599, ss. 5, 6; 2011-339, s. 5; 2011-344, s. 4.)

Editor's Note. - The bracketed reference in subdivision (b)(2) was added at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-339, s. 5, effective October 1, 2011, and applicable to all trusts created before, on, or after that date, rewrote subdivision (b)(5), which formerly read: "A personal representative that is a national banking association having its principal place of business in this State or a State bank acting pursuant to G.S. 53-159."

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (a), inserted "of this section"; in subdivisions (b)(1), (b)(2), and (b)(7), made gender neutral changes; in subdivision (b)(5), substituted "trust institution licensed under G.S. 53-159" for "national banking association having its principal place of business in this State or a State bank acting pursuant to G.S. 53-159"; and in subdivision (b)(8), substituted "the administrator with the will annexed" for "him."

§ 28A-8-1.1. Deposited money; exclusion in computing amount of bond.

Notwithstanding the provisions of G.S. 28A-8-1, in any proceeding for the determination of the amount of bond to be required of the personal representative or testamentary trustee, whether at the time of appointment or subsequently, when it appears that the estate of the decedent or the testamentary trust includes money which has been or will be deposited in a bank or banks in this State, or money which has been or will be invested in an account or accounts in an insured savings and loan association or associations upon condition that such money will not be withdrawn except on authorization of the court, the court may, in its discretion, order such money so deposited or so invested and shall exclude such deposited money from the computation of the amount of such bond or reduce the amount of bond to be required in respect of such money to such an amount as it may deem reasonable.

The petitioner for letters testamentary, of administration, or of trusteeship may deliver to any such bank or association any such money in the petitioner's possession, or may allow such bank to retain any such money already in its possession, or may allow such association to retain any such money already invested with it; and, in either event, the petitioner shall secure and file with the court a written receipt including the agreement of the bank or association that such money shall not be allowed to be withdrawn except on authorization of the court. In so receiving and retaining such money, the bank or association shall be protected to the same extent as though it had received the same from a person to whom letters testamentary, of administration, or of trusteeship had been issued.

The term "account in an insured savings and loan association" as used in this section means an account insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation or by a mutual deposit guaranty association authorized by Article 7A of Chapter 54 of the General Statutes of North Carolina.

The term "money" as used in this section means the principal of the decedent's estate and does not include the income earned by the principal of the decedent's estate which may be withdrawn without any authorization of the court.

History

(1977, c. 870, s. 1; 2011-344, s. 4.)

Editor's Note. - Article 7A of Chapter 54, referred to in this section, was repealed by Session Laws 1981, c. 282, s. 1. For present provisions as to savings and loan associations, see Chapter 54B.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the petitioner's" for "his" in the first sentence of the second paragraph.

§ 28A-8-2. Provisions of bond.

A bond given pursuant to this Article shall be:

  1. Payable to the State to the use of all persons interested in the estate; and
  2. Conditioned that the personal representative giving the bond shall faithfully execute the trust reposed in the personal representative and obey all lawful orders of the clerk of superior court or other court touching the administration of the estate committed to the personal representative; and
  3. In an amount not less than:
    1. One and one-fourth times the value of all personal property of the decedent when the bond is secured by a suretyship bond executed by a corporate surety company authorized by the Commissioner of Insurance to do business in this State, provided that the clerk of superior court, when the value of the personal property to be administered by the personal representative exceeds one hundred thousand dollars ($100,000), may accept bond in an amount equal to the value of the personal property plus ten percent (10%) thereof; or
    2. Double the value of all personal property of the decedent when the bond is secured by one of the methods provided in subdivision (4)b, (4)c or (4)d; such value of said personal property to be ascertained by the clerk of superior court by examination, on oath, of the applicant or of some other person determined by the clerk to be qualified to testify as to its value; and
  4. Secured by one or more of the following:
    1. Suretyship bond executed, at the expense of the estate, by a corporate surety company authorized by the Commissioner of Insurance to do business in this State;
    2. Suretyship bond executed and justified upon oath before the clerk of superior court by two or more sufficient personal sureties each of whom shall reside in and own real estate in North Carolina and shall have assets with an aggregate value above encumbrances of not less than the amount of the penalty of the required bond;
    3. A first mortgage or first deed of trust in form approved by the administrative officer of the courts on real estate located in North Carolina:
      1. Executed by the owner, and conditioned on the performance of the obligations of the bond, and
      2. Containing a power of sale which, in the case of a mortgage, is exercisable by the clerk of superior court upon a breach of any condition thereof, or, in the case of a deed of trust, is exercisable by the trustee after notice by the clerk of superior court that a breach of condition has occurred.
    4. A deposit by the owner with the clerk of superior court of negotiable securities, of a kind permitted by law to be proper investments for fiduciaries exercising due care, having a fair market value determined by the clerk to be equal to the amount of the penalty of the bond. Such securities shall be properly endorsed, delivered to the clerk of superior court, and accompanied by a security agreement containing a power of sale authorizing the clerk of superior court to sell them in the event the person to whom letters are being issued commits a breach of any duty imposed upon that person by law in respect of that person's office. Such securities shall not be surrendered by the clerk of superior court to the owner until the approval of the final account, unless substitution is permitted as provided in G.S. 28A-8-3(d). For the purposes of determining the value of the assets of the personal sureties in subdivision (4)b, or the value of the real estate in subdivision (4)c, or the value of the negotiable securities in subdivision (4)d, the clerk of superior court may require a certificate of the value of such property by one or more persons not interested in the estate determined by the clerk to be qualified to certify such value.

The clerk of superior court shall not accept such mortgage or deed of trust until it shall have been properly registered in the county or counties in which the real estate is located, and the clerk of superior court is satisfied that the real estate subject to the mortgage or deed of trust is worth the amount to be secured thereby, and that the mortgage or deed of trust is a first charge on said real estate. No such mortgage or deed of trust shall be cancelled or surrendered until the approval of the final account, unless substitution is permitted as provided in G.S. 28A-8-3(d).

History

(C.C.P., s. 468; 1870-1, c. 93; Code, s. 1388; Rev., s. 319; C.S., s. 33; 1935, c. 386; 1949, c. 971; 1967, c. 41, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Cross References. - As to mortgage in lieu of bond required to be given, see G.S. 58-74-1.

As to deposit of cash or securities in lieu of bond, see G.S. 58-75-1.

As to when evidence as to default of principal is admissible against sureties in actions on bonds of personal representatives, see G.S. 58-76-25.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subdivision (2), twice substituted "the personal representative" for "him"; and in subdivision (4)d., twice substituted "that person's" for "him," or similar language in the second sentence.

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

When Bond Not Essential. - The execution of a bond, though incidental, is not an essential condition of an order admitting the plaintiff to prosecute an action as administrator. Hughes v. Hodges, 94 N.C. 56 (1886).

Bond Not Essential to Appointment Itself. - Giving of the bond is not essential to the efficiency of the act of appointment itself. Howerton v. Sexton, 104 N.C. 75, 10 S.E. 148 (1889). See Hoskins v. Miller, 13 N.C. 360 (1830); Spencer v. Cahoon, 15 N.C. 225 (1833); Spencer v. Cahoon, 18 N.C. 27 (1834); Garrison v. Cox, 95 N.C. 353 (1886).

The giving of the bond is not an essential of the act of appointment itself. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649 (1950).

Failure to give a bond or the giving of an insufficient bond is only an irregularity, in no way affecting the validity of the appointment. The irregularity makes the letters of administration voidable only - a condition which may be cured by full compliance with the statute since the letters once issued are not subject to collateral attack. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649 (1950).

Irregularity Cured by Giving Proper Bond. - Where, upon service of order to show cause why letters of administration should not be revoked for failure of the administrator to give bond, the administrator files bond with sufficient surety which is approved by the clerk, the irregularity is cured and the denial of the motion to vacate the letters of administration is not error. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649 (1950).

Effect of Failure to Give Proper Bond. - The mere fact that the bond of the representative is not justified before or approved by the clerk does not render the appointment void, or necessarily voidable. The provisions of this section requiring bond are directory and not essential to the appointment. The only effect of noncompliance with these requirements is that the representative may be made to give the proper bond required. Garrison v. Cox, 95 N.C. 353 (1886).

Failure of Foreign Executor to Give Bond. - When a foreign executor was regularly appointed and qualified his failure to give the bond specified by this section is only an irregularity and cannot be collaterally attacked. Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20 (1912).

Amount of Bond. - The framers of this section must have contemplated that the amount of bond should depend upon the application and examination of the principal named in it, unless the clerk preferred to examine another person. Upon the examination the clerk may value the property at a higher figure than he has previously valued it. Williams v. Neville, 108 N.C. 559, 13 S.E. 240 (1891).

Money Received Covered by Bond. - Money applied for by an administrator, and paid to him as such, is received under color of his office and is covered by his bond. Lafferty v. Young, 125 N.C. 296, 34 S.E. 444 (1899).

Good faith and the exercise of ordinary care and reasonable diligence are all that is required of executors and administrators, and covered by their bond. Moore v. Eure, 101 N.C. 11, 7 S.E. 471 (1888); Smith v. Patton, 131 N.C. 396, 42 S.E. 849 (1902).

Failure to account for and to pay an amount due by the administrator to the estate is a breach of the statutory bond. State ex rel. Dunn v. Dunn, 206 N.C. 373, 173 S.E. 900 (1934).

Action May Be Brought on Bond After Death or Removal of Administrator. - Where an administrator, who has not fully administered the estate of his intestate has died or has been removed from his office, an action may be maintained against his personal representative or against him, as the case may be, and the surety on his bond, to recover the amount due by him to the estate of his intestate, by one who has been duly appointed and has duly qualified as administrator d.b.n. of his intestate. Tulburt v. Hollar, 102 N.C. 406, 9 S.E. 430 (1889).

Opinions of Attorney General

Husband and Wife Constitute One Surety. - See opinion of Attorney General to Honorable Robert G. Jarrett, 42 N.C.A.G. 259 (1973), rendered under former Chapter 28.


§ 28A-8-3. Modification of bond requirements.

  1. Increase of Bond or Security in Case of Inadequacy or Insufficiency. -
    1. The clerk of superior  court, on the clerk's own motion, may require the personal representative to give a new bond or to furnish additional security if the clerk of superior court finds that the bond filed pursuant to this Article, or its security, is insufficient, inadequate in amount, or that any of the individual sureties has become or is about to become a nonresident or, in the case of a corporate surety, has withdrawn or is about to withdraw from doing business in this State.
    2. Any interested person may file a verified petition in accordance with Article 2 of this Chapter requesting modification of bond requirements. Upon the filing of a verified petition, the clerk of superior court shall conduct a hearing in accordance with Article 2 of this Chapter. If the clerk of superior court finds that the bond filed or its security is insufficient or inadequate, the clerk shall make an order requiring the personal representative to give a new bond or to furnish additional security within a reasonable time to be fixed in the order.
  2. Increase of Bond upon Sale of Real Estate. - When a personal representative makes application for an order to sell real estate, the provisions of G.S. 1-339.10 shall govern.
  3. Reduction of Bond. - On application of the personal representative the penalty of the bond may be reduced from time to time when the clerk of superior court finds that such reduction is clearly justified, but in no event shall the penalty of the bond be reduced below the amount required by G.S. 28A-8-2(3).
  4. Substitution of Security. - When a bond is secured by a mortgage or deed of trust on real estate as provided in G.S. 28A-8-2(4)c or a deposit of negotiable securities as provided in G.S. 28A-8-2(4)d, the clerk of superior court may, on application of the personal representative, order that such real estate or negotiable securities, or a part thereof, be released upon the substitution therefor of other security in compliance with G.S. 28A-8-2(4)a, (4)c, or (4)d. Such substitution may be allowed in conjunction with any other modification of bond requirements permitted by this section.

History

(1868-9, c. 113, s. 89; Code, s. 1518; Rev., s. 32; C.S., s. 43; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote subsection (a) to the extent that a detailed comparison is impracticable.

CASE NOTES

Mortgage Instead of Bond. - An administrator who is also the heir of the intestate cannot satisfy the requirement of an additional bond or security by mortgaging lands of his intestate, as such lands are already liable for the debts. In re Sellars, 118 N.C. 573, 24 S.E. 430 (1896), decided under prior law.


§ 28A-8-4. Failure to give additional bond; letters revoked.

If any personal representative fails to give an additional bond or new bond or to furnish additional security as ordered by the clerk of superior court pursuant to the provisions of this Article, within the time specified in any such order (not less than five days or more than 15 days), the clerk of superior court shall proceed as provided in G.S. 28A-9-2.

History

(1868-9, c. 113, s. 91; Code, s. 1520; Rev., s. 34; C.S., s. 44; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted "(not less than five days or more than 15 days)."

CASE NOTES

Clerk Has Jurisdiction. - The clerks of the superior courts have jurisdiction of proceedings for the removal of executors and administrators. Edwards v. Cobb, 95 N.C. 4 (1886), decided under prior law.

Notice to Show Cause Essential. - A judgment removing a public administrator for failure to renew his bond, without notice to show cause, is not only irregular but void. Trotter v. Mitchell, 115 N.C. 190, 20 S.E. 386 (1894), decided under prior law.


§ 28A-8-5. Rights of surety in danger of loss.

Any surety on the bond of a personal representative who is in danger of loss under the surety's suretyship may file a verified petition with the clerk of superior court setting forth the facts, and asking that such personal representative be removed from office, or that the personal representative be required to give security to indemnify the petitioner against apprehended loss, or that the petitioner be discharged as surety and be released from liability for any future breach of the bond. The clerk of superior court shall conduct a hearing in accordance with Article 2 of this Chapter. If, upon the hearing, the clerk of superior court determines that the surety is entitled to relief, the clerk may grant the same in such manner as to serve the best interest of the estate. In any event, however, the previous surety shall not be released from liability for any breach of duty by the personal representative occurring prior to the filing of bond with a new surety unless the new surety assumes liability for the earlier breaches.

History

(1868-9, c. 113, s. 90; Code, s. 1519; Rev., s. 33; C.S., s. 41; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, substituted "the surety's" for "his," "a verified petition" for "his petition on oath," and "the personal representative" for "he," in the second sentence, substituted "shall conduct a hearing in accordance with Article 2 of this Chapter" for "shall thereupon issue a citation to the personal representative, requiring him to answer the petition within 10 days after service thereof," and in the third sentence, substituted "the clerk" for "he."

§ 28A-8-6. Action against obligors on bond of personal representative.

Any person injured by the breach of any bond given by a personal representative or collector may institute a civil action against one or more of the obligors of the bond and recover such damages as the person may have sustained. Any successor personal representative, or any other personal representative of the same decedent, may institute such action on behalf of the persons interested in the estate. Any such action against one or more of the obligors of the bond shall be brought in the name of the State of North Carolina and shall be instituted in the county in which letters were issued to the personal representative or collector, and the clerk of superior court shall give notice of the institution of the action in such manner as the clerk may determine to all other persons shown by the clerk's records to be interested in the estate. The bond of the personal representative is not void after the first or any subsequent recovery thereon until the entire penalty is recovered. If the plaintiff fails to prevail, costs may be taxed against the person or persons for whose benefit the action on a personal representative's bond is prosecuted.

History

(1868-9, c. 113, ss. 87, 88; Code, ss. 1516, 1517; Rev., ss. 30, 31; C.S., ss. 40, 42; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, substituted "the person" for "he," and in the third sentence, substituted "the clerk" for "he" and "the clerk's" for "his."

CASE NOTES

Necessity for Administrator De Bonis Non to Sue. - The administrator de bonis non must first sue on the bond of a defaulting executor who preceded him, before he can obtain a license to sell the real estate for the payment of the debts. Carlton v. Byers, 70 N.C. 691 (1874), decided under prior law.

Where the preceding administrator is insolvent, his bond lost, and sureties unknown, the administrator de bonis non need not bring suit before he can obtain such license. Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889), decided under prior law.

Cited in State ex rel. Pilard v. Berninger, 154 N.C. App. 45, 571 S.E.2d 836 (2002), cert. denied, 356 N.C. 694, 579 S.E.2d 100 (2003).


ARTICLE 9. Revocation of Letters.

Sec.

§ 28A-9-1. Revocation after hearing.

  1. Grounds. - Letters testamentary, letters of administration, or letters of collection may be revoked after hearing on any of the following grounds:
    1. The person to whom they were issued was originally disqualified under the provisions of G.S. 28A-4-2 or has become disqualified since the issuance of letters.
    2. The issuance of letters was obtained by false representation or mistake.
    3. The person to whom they were issued has violated a fiduciary duty through default or misconduct in the execution of the person's office, other than acts specified in G.S. 28A-9-2.
    4. The person to whom they were issued has a private interest, whether direct or indirect, that might tend to hinder or be adverse to a fair and proper administration. The relationship upon which the appointment was predicated shall not, in and of itself, constitute such an interest.
    5. The person to whom they were issued is employed by, acts as an agent for, or conducts business in a contractual capacity with a property finder, as defined in G.S. 116B-52(11a), who has entered into an agreement subject to G.S. 116B-78 to locate the estate property defined by the agreement.
  2. Procedure. -
    1. The clerk of superior court may, on the clerk's own motion, conduct a hearing in accordance with Article 2 of this Chapter to determine whether any of the grounds set forth in subsection (a) of this section exist with regard to any personal representative or collector within the jurisdiction of the clerk of superior court.
    2. Upon the verified petition of any person interested in the estate for an order finding that any of the grounds set forth in subsection (a) of this section exist with regard to any personal representative or collector within the jurisdiction of the clerk of superior court, the clerk shall conduct a hearing in accordance with Article 2 of this Chapter.
    3. Notice of the time and date of the hearing shall be given in accordance with Article 2 of this Chapter and to such persons as the clerk of superior court shall determine. If at the hearing the clerk of superior court finds any one of the grounds set forth in subsection (a) of this section to exist, the clerk of superior court shall revoke the letters issued to such personal representative or collector.

History

(C.C.P., s. 470; Code, s. 2171; Rev., s. 38; C.S., s. 31; 1921, c. 98; 1953, c. 795; 1973, c. 1329, s. 3; 2011-344, s. 4; 2021-157, s. 2(b).)

Cross References. - As to appeal from an order of the clerk granting or denying revocation, see G.S. 28A-10-6.

Editor's Note. - Session Laws 2021-157, s. 2(g), made subdivision (a)(5) of this section, as added by Session Laws 2021-157, s. 2(b), effective January 1, 2022, and applicable to agreements entered into on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the person's" for "his" in subdivision (a)(3); and rewrote subsection (b) to the extent that a detailed comparison is impracticable.

Session Laws 2021-157, s. 2(b), added subdivision (a)(5). For effective date and applicability, see editor's note.

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

This section prescribes procedure for the removal of a particular person as administrator for causes specified therein; and, upon removal of such person, the clerk must immediately appoint some other person to succeed in the administration of the estate. In re Bane, 247 N.C. 562, 101 S.E.2d 369 (1958).

G.S. 1A-1, Rule 58 Inapplicable to Denial of Motion to Revoke. - G.S. 1A-1, Rule 58 has no application in case involving the denial of a motion made before the clerk of superior court pursuant to this section to revoke the letters testamentary of executor. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437 (1987).

Purpose of Proceeding to Remove Executor or Administrator. - See In re Battle's Estate, 158 N.C. 388, 74 S.E. 23 (1912).

Power to Revoke Imports Power to Refuse. - The power vested in the clerk under this section to revoke letters for good cause carries with it the power to refuse to grant letters for cause for which a revocation would be justified. In re Will of Gulley, 186 N.C. 78, 118 S.E. 839 (1923).

Jurisdiction of Clerk. - The clerk of the superior court has jurisdiction to entertain verified petition for the removal of an administrator. In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223 (1950).

The clerk has original and primary jurisdiction of a probate judge to revoke letters, subject to review upon appeal by either party. Murrill v. Sandlin, 86 N.C. 54 (1882); McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956).

The clerk of superior court, as probate judge, has exclusive original jurisdiction to hear and decide a motion to remove an administrator for cause. Porth v. Porth, 3 N.C. App. 485, 165 S.E.2d 508 (1969).

Jurisdiction of Clerk over Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Exercise of Discretion. - The exigencies of administration require the exercise of sound judgment, and this necessarily implies discretion in its supervision. Hence, the removal of administrators calls for the exercise of discretion by the clerk. Jones v. Palmer, 215 N.C. 696, 2 S.E.2d 850 (1939).

Discretion Reviewable on Appeal. - In revoking letters of administration under this section the clerk exercises a legal discretion which is reviewable on appeal. In re Galloway's Estate, 229 N.C. 547, 50 S.E.2d 563 (1948); In re Will of Taylor, 293 N.C. 511, 238 S.E.2d 774 (1977).

Revocation of Prior Appointment and Appointment of Widow's Nominee. - The appointment of one as administrator of an estate should be revoked upon renunciation of the widow, who has a prior right to administer the estate, and her nomination of another in her stead, and the clerk of the court has jurisdiction and should appoint on her request a fit and competent person nominated by her. In re Estate of Loflin, 224 N.C. 230, 29 S.E.2d 692 (1944).

Filling Vacancy Caused by Resignation. - Where, in proceedings for removal of an administrator, the administrator resigns, a vacancy occurs and the clerk has authority to appoint a successor. In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223 (1950).

Filing of "Final Report" Does Not Create Vacancy. - The filing of a "final report" by an executor does not have the effect of removing him from office if in fact the estate has not been fully settled, and therefore the filing of the report does not create a vacancy and does not give the clerk authority to appoint an administrator c.t.a., d.b.n. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562 (1940).

Pleading and Procedure. - The application to remove an executor may be made by any person rightfully interested, by petition or motion in writing, or formal complaint, setting forth the grounds of application supported by affidavit. The allegations thus made may be met by a demurrer in a proper case, or by answer. Edwards v. Cobb, 95 N.C. 4 (1886).

Because hearings both to compel accountings and remove personal representative are instituted by notice rather than a formal civil complaint and summons, they are "special proceedings," for which beneficiaries are not required to commence a civil action. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Necessity for Order to Show Cause. - The clerk cannot appoint a collector, when the will has been probated and executor qualified, and remove the executor, without a hearing based on notice to show cause why the executor should not be removed. In re Palmer's Will, 117 N.C. 133, 23 S.E. 104 (1895).

Clerk cannot remove a public administrator without notice to show cause why he should not be removed. Trotter v. Mitchell, 115 N.C. 190, 20 S.E. 386 (1894).

Finding Sufficient to Support Revocation. - Findings that an administrator had moved from the jurisdiction of this State and had interests antagonistic to the estate was sufficient to support the clerk's order revoking letters of administration. In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421 (1952).

Order of revocation of letters testamentary was justified where the clerk made a finding that executor had refused to pay widow her share from the sale of personal property, and that he had arbitrarily mixed and commingled funds of the estate with funds of the widow. In re Boyles' Estate, 243 N.C. 279, 90 S.E.2d 399 (1955).

Proceeding to remove an executor and a civil suit for damages are not the same cause of action. The proceeding to remove an executor is purely statutory, with probate jurisdiction vested in the clerk of superior court, and reviewable by a superior court judge on appeal. A civil suit for damages involves a full trial with the right to have factual issues resolved by a jury. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410 (1984), cert. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

Statutory action to remove administrators or executors is not res judicata in any other proceeding which the parties are entitled to pursue. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410 (1984), cert. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

A proceeding under this section is not res judicata in a civil action for damages. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410 (1984), cert. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

Orders entered in a proceeding under this section, in which an executor must show cause why he should not be removed, do not constitute res judicata as to a later civil action for damages between the parties or collaterally estop the bringing of such an action. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410 (1984), cert. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

Appointment of administratrix as res judicata. - An adjudication by the clerk that the administratrix theretofore appointed by him was not the widow of decedent is not res judicata in any other proceeding between the parties which respondent may be entitled to pursue. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Beneficiaries Seeking Removal Not Held to Election of Remedies. - Prejudice would result if, when beneficiaries sought to remove an executor, they were held to an election of remedies and could not later bring a civil action for damages. Such a policy would either chill exercise of the right to seek statutory removal of an executor or force beneficiaries prematurely to bring civil actions for damages. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410 (1984), cert. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

Denial of Motion to Revoke "Entered" When Clerk Announced After Hearing He Would Deny It. - Clerk's order denying motion to revoke letters testamentary was "entered" when the clerk announced after hearing that he would deny the petition. The party aggrieved by the ruling, the petitioner, was present and even excepted to the order, had ten days thereafter to give notice of appeal pursuant to G.S. 1-272 [see now G.S. 1-301.1 et seq.]. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437 (1987).

Verification Sufficient. - Signing of petition for revocation before a notary public under oath, petitioner having sworn that the matters stated in the petition upon her information and belief were true, constituted sufficient verification required by this section. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

"Special Proceeding." - The procedure for the revocation of the letters testamentary of an administratrix as set forth in this section is a "special proceeding," and the clerk had statutory authority to appoint the guardian ad litem. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204 (1989).

The minor heirs had a vested interest in who administered the estate of their deceased father and were entitled under this section to appeal the decision of the clerk on the revocation issue. This was sufficient to bring the matter within the purview of Rule 17 providing it was an "action or special proceeding." In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204 (1989).

Sanctions For Filing Revocation Petition. - Court had authority to impose sanctions under G.S. 1A-1-11 against an heir under a former will for filing a revocation petition under G.S. 28A-9-1 that was not well-grounded in law; heir did not have standing to seek executors' removal because the will had been admitted to probate, and there was no evidence of undue influence. In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010).

Applied in In re Estate of Montgomery, 137 N.C. App. 564, 528 S.E.2d 618 (2000); In re Estate of Monk, 146 N.C. App. 695, 554 S.E.2d 370 (2001), cert. denied, 355 N.C. 212, 559 S.E.2d 805 (2002).

Cited in In re Estate of Moore, 292 N.C. 58, 231 S.E.2d 849 (1977); Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981); In re Estate of Armfield, 113 N.C. App. 467, 439 S.E.2d 216 (1994).

II. DISQUALIFICATION.

"Legally Competent." - As to definition of term "legally competent" under former statute, see In re Will of Covington, 252 N.C. 551, 114 S.E.2d 261 (1960).

III. DEFAULT OR MISCONDUCT.

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Procedure to remove an executor or administrator for default or misconduct is by order issued by the clerk to the executor or administrator to show cause, and in such proceeding the respondent must be given notice and an opportunity to be heard, with right of appeal. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562 (1940).

Question Determinable by Clerk. - In a proceeding under this section for revocation of letters of administration, the question determinable by the clerk was solely whether the administrators have been guilty of default or misconduct in the due execution of their office, and the rights and liabilities of adverse parties in the estate could not be litigated in such proceeding. In re Galloway's Estate, 229 N.C. 547, 50 S.E.2d 563 (1948).

Failure to Discharge Duties as Ground of Removal. - Where the executor becomes bankrupt and is the owner of no property, and has neglected for six years to file an inventory or return of any sort, and has failed to convert the personal property into money, upon application of creditors he may be required to give bond or, in default, be removed. Barnes v. Brown, 79 N.C. 401 (1878).

As to removal for failure to make statement of account, see Armstrong v. Stowe, 77 N.C. 360 (1877).

Refusal to Disclose Information. - Refusal on the part of the executor named in the will to disclose information as to the amount and nature of personalty coming into his possession, and as to other matters relative to his fitness, is a ground for withholding or revoking letters testamentary and granting them to some other person. In re Will of Gulley, 186 N.C. 78, 118 S.E. 839 (1923).

Poverty of an executor is not of itself a reason for restraining him from administering the estate. There must be some maladministration or some danger of loss from his misconduct or negligence for which he will not be able to answer by reason of his insolvency. Wilkins v. Harris, 60 N.C. 592 (1864).

Poverty is not a ground to require the representative to give bond as an alternative of giving up his office. Fairbairn v. Fisher, 57 N.C. 390 (1859).

Insolvency in Lifetime of Testator. - An executor will not be removed for insolvency, if such was his condition in the lifetime of his testator and to the knowledge of the testator, when there is no evidence of waste or misapplication of funds. In re Knowles' Estate, 148 N.C. 461, 62 S.E. 549 (1908).

Where heirs at law of an estate were appointed administrators, an order of the clerk revoking the letters of administration upon consideration of evidence of their failure to account for rents and profits from the realty is based upon a confusion of their duties, obligations and liabilities as administrators and their rights and liabilities as heirs at law, and the cause will be remanded in order that the evidence may be considered in its true legal light. In re Galloway's Estate, 229 N.C. 547, 50 S.E.2d 563 (1948).

Failure of Nonresident Executrix to Appoint Process Agent. - The failure and refusal by a nonresident executrix to appoint a process agent was sufficient ground under this section for her removal. In re Brauff's Will, 247 N.C. 92, 100 S.E.2d 254 (1957).

Where decedent's daughter repeatedly requested that wrongful death action be brought, and offered to pay all expenses for it, but was confronted with alleged collusion and willful obstruction on the part of administratrix and attorney, and within the two-year statute of limitations period, filed action against administratrix, attorney and insurer alleging breach of fiduciary duties and collusion, her contributory negligence, if any, in failing to seek removal of administratrix, was not such as to warrant dismissal under G.S. 1A-1, Rule 12(b)(6). Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984).

Executor's acceptance of commissions based on an erroneous interpretation of a statute would not be misconduct requiring revocation of letters testamentary. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989).

Statement of Belief in Affidavit Is Insufficient. - A statement in an affidavit for the removal of executor of a mere belief that he will misapply the funds is not sufficient for removal. The affidavit should state the facts or reasons upon which such belief is based. Neighbors v. Hamlin, 78 N.C. 42 (1878).

Allegations of Misconduct Held Sufficient. - Allegations that coexecutor failed to timely file estate accountings with the clerk's office, disregarding notices issued by the clerk that such accountings were due, that he paid himself approximately $32,900 from the estate for his commission and attorneys' fees without approval of the clerk and that this amount was in excess of any amount which he could legally be allowed for commissions and legal fees, and that through his default and misconduct he had violated his fiduciary duty as a coexecutor of the estate constituted sufficient grounds upon which executrix could petition for the revocation of coexecutor's letters under subdivision (a)(3) of this section. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied, 314 N.C. 330, 333 S.E.2d 488 (1985).

Allegations of Misconduct Held Insufficient. - Grounds for revocation of letters of administration did not exist where a co-administrator did not seek to revoke the letters under grounds identified in G.S. 28A-9-1(a). In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009).

IV. PRIVATE INTEREST.

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Interest in Property Which Is Liable for Estate Debt. - The finding that respondent-administrator c.t.a. and petitioner are tenants in common of certain real property of the estate which is liable for debts of the estate to the extent that the personal property is insufficient to pay such debts does not support the conclusion that respondent had a private interest that might tend to hinder or be adverse to a fair and proper administration of the estate. In re Will of Taylor, 32 N.C. App. 742, 234 S.E.2d 11, aff'd, 293 N.C. 511, 238 S.E.2d 774 (1977).

Joint Ownership with Decedent. - Where there is no evidence of bad faith or fraudulent concealment, a claim by the administrator that he owned jointly with the decedent a part of the personal estate of the latter is not such an adverse interest as to disqualify him in his office. Morgan v. Morgan, 156 N.C. 169, 72 S.E. 206 (1911).


§ 28A-9-2. Summary revocation.

  1. Grounds. - Letters testamentary, letters of administration, or letters of collection, shall be revoked by the clerk of superior court without hearing when:
    1. After letters of administration or collection have been issued, a will is subsequently admitted to probate.
    2. After letters testamentary have been issued:
      1. The will is set aside, or
      2. A subsequent testamentary paper revoking the appointment of the executor is admitted to probate.
    3. Any personal representative or collector required to give a new bond or furnish additional security pursuant to G.S. 28A-8-3 fails to do so within the time ordered.
    4. A nonresident personal representative refuses or fails to obey any citation, notice, or process served on that nonresident personal representative or the process agent of the nonresident personal representative.
    5. A trustee in bankruptcy, liquidating agent, or receiver has been appointed for any personal representative or collector, or any personal representative or collector has executed an assignment for the benefit of creditors.
    6. A personal representative has failed to file an inventory or an annual account with the clerk of superior court, as required by Article 20 and Article 21 of this Chapter, and proceedings to compel such filing pursuant to G.S. 28A-20-2 or 28A-21-4 cannot be had because service cannot be completed because the personal representative cannot be found.
    7. A personal representative or collector is a licensed attorney, and the clerk is in receipt of an order entered pursuant to G.S. 84-28 enjoining, suspending, or disbarring the attorney.
  2. Procedure. - Upon the occurrence of any of the acts set forth in subsection (a) of this section, the clerk of superior court shall enter an order revoking the letters issued to such personal representative or collector and shall cause a copy of the order to be served on the personal representative or collector or the personal representative's or collector's process agent.

History

(C.C.P., s. 469; Code, s. 2170; Rev., s. 37; C.S., s. 30; 1973, c. 1329, s. 3; 1975, c. 19, s. 8; 2011-344, s. 4; 2017-158, s. 3.)

Cross References. - As to resignation of trustee, see G.S. 36C-7-705.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subdivision (a)(4), substituted "served on that non-resident personal representative or the process agent of the non-resident personal representative" for "served on him or his process agent"; and in subsection (b), inserted "of this section" and substituted "served on the personal representative or collector or the personal representative's or collector's process agent" for "served on him or his process agent."

Session Laws 2017-158, s. 3, effective July 21, 2017, added subdivision (a)(7).

CASE NOTES

This section does not empower the clerk to set aside probate in common form upon proffer of proof of a later will. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948), decided under prior law.

Cited in In re Will of Taylor, 293 N.C. 511, 238 S.E.2d 774 (1977); In re Will of Taylor, 32 N.C. App. 742, 234 S.E.2d 11 (1977); In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001); In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886 (2008), review dismissed, as moot, 363 N.C. 126, 675 S.E.2d 362 (2009); In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010).


§ 28A-9-3. Effect of revocation.

Upon entry of the order revoking a personal representative's or collector's letters, the authority of the personal representative or collector shall cease. The personal representative or collector shall surrender all assets of the estate under the control of the personal representative or collector to the personal representative's or collector's successor, or the remaining personal representative or collector or to the clerk of superior court; and shall file an accounting in the form prescribed by Article 21 of this Chapter. A personal representative or collector whose letters are revoked pursuant to G.S. 28A-9-2(a)(1) or 28A-9-2(a)(2) shall not thereby incur personal liability for administrative acts performed prior to revocation except as provided in G.S. 28A-13-10.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, substituted "a personal representative's or collector's letters" for "his letters," and in the second sentence, substituted "The personal representative or collector" for "He" and "under the control of the personal representative or collector to the personal representative's or collector's successor" for "his control to his successor."

§ 28A-9-4. Appeal; stay effected.

Any interested person may appeal from the order of the clerk of superior court granting or denying revocation as an estate proceeding pursuant to G.S. 1-301.3. The clerk of superior court may issue a stay of an order revoking the letters upon the appellant posting an appropriate bond set by the clerk until the cause is heard and determined upon appeal.

History

(1973, c. 1329, s. 3; 2011-344, s. 4; 2021-53, s. 3.4.)

Cross References. - As to revocation of letters testamentary, letters of administration, or letters of collection after hearing, see G.S. 28A-9-1.

Editor's Note. - Session Laws 2021-53, s. 3.6, made the amendments to this section by Session Laws 2021-53, s. 3.4, effective October 1, 2021, and applicable to proceedings initiated on or after that date.

Session Laws 2021-53, s. 5.1, contains a severability clause.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2021-53, s. 3.4, substituted "an estate proceeding pursuant to G.S. 1-301.3” for "a special proceeding pursuant to G.S. 28A-2-9(b).” For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Power of Clerk to Remove Executors Is Reviewable. - The powers of the clerk to remove executors and administrators, conferred by this section, are reviewable on appeal to the judge of the superior court of the county. Wright v. Ball, 200 N.C. 620, 158 S.E. 192 (1931).

It is in the province of the clerk to pass upon the matter of qualification of an executor, subject to the right of review by the superior court judge, and as to matters of law by the Supreme Court on appeal. In re Will of Gulley, 186 N.C. 78, 118 S.E. 839 (1923). See Tulburt v. Hollar, 102 N.C. 406, 9 S.E. 430 (1889).

Superior Court May Review Findings of Fact Challenged by Specific Exceptions. - To say that the superior court has jurisdiction to hear a probate matter only upon an appeal from a final judgment entered below does not mean that the judge can review the record only to ascertain whether there have been errors of law. He also reviews any findings of fact which the appellant has properly challenged by specific exceptions. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Jurisdiction of Superior Court is Derivative. - It is sometimes said that, upon an appeal from an order of the clerk made in the performance of his duties as judge of probate, the jurisdiction of the judge of the superior court is derivative. Such derivative jurisdiction is construed to mean, inter alia (1) that the clerk of the superior court has the sole power in the first instance to determine whether a decedent died testate or intestate, and, if he died testate, whether the paper-writing offered for probate is his will; (2) that proceedings to repeal letters of administration must be commenced before the clerk who issued them in the first instance; and (3) that the judge of the superior court has no jurisdiction to appoint or remove an administrator or a guardian. In other words, jurisdiction in probate matters cannot be exercised by the judge of the superior court except upon appeal. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Hearing De Novo. - Where the clerk removes an administratrix upon his finding that she was not the widow of the deceased and therefore was not entitled to appointment as a matter of right, and an appeal is taken to the superior court from such order, the superior court, even though its jurisdiction is derivative, hears the matter de novo, and may review the finding of the clerk provided the appellant has properly challenged the finding by specific exception, and may hear evidence and even submit the controverted fact to the jury; but where there is no exception to the finding, the superior court may determine only whether the finding is supported by competent evidence, and if the order is so supported the superior court is without authority to vacate the clerk's judgment and order a jury trial upon the issue. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).

Clerk's order reviewing a clerk's order denying a widow's petition for revocation of letters testamentary granted to an executor was vacated because a de novo hearing was statutorily required, but none was conducted. In re Estate of Johnson, 264 N.C. App. 27, 824 S.E.2d 857 (2019).

Superior Court May Retain Cause. - Where the superior court judge, upon appeal from the order of the clerk of the court removing executors or administrators of an estate, has exercised his discretion in retaining the cause in the superior court instead or remanding it to the clerk, the exercise of this discretion is not reviewable on appeal to the Supreme Court. Wright v. Ball, 200 N.C. 620, 158 S.E. 192 (1931).

Cited in Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981).


§ 28A-9-5. Interlocutory orders.

Pending any proceeding or appeal with respect to revocation of letters, the clerk of superior court may enter such interlocutory orders as are necessary to preserve the assets of the estate.

History

(1868-9, c. 113, s. 92; Code, s. 1521; Rev., s. 35; C.S., s. 32; 1973, c. 1329, s. 3.)

CASE NOTES

Order to Make Return and Settlement. - The removed administrator may be ordered to make immediate return and settlement of the estate in his hands. Until that is done he is within the jurisdiction of the court. In re Brinson, 73 N.C. 278 (1875), decided under prior law. See also, Taylor v. Biddle, 71 N.C. 1 (1874), where an administrator was removed and an administrator de bonis nom appointed, decided under prior law.

Order to Surrender Funds. - It is proper for the clerk to order the displaced representative to surrender the funds in his possession belonging to the estate. Battle v. Duncan, 90 N.C. 546 (1884), decided under prior law.

Cited in In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).


§ 28A-9-6. Appointment of successor to personal representative or collector whose letters have been revoked; when not required.

Upon the revocation of letters issued to a sole or last surviving personal representative or collector, the clerk of superior court shall appoint another personal representative or collector as provided by G.S. 28A-4-1 to act as successor to the sole or last surviving personal representative or collector. When two or more personal representatives or collectors have qualified, and the letters of one or more personal representatives or collectors are revoked, leaving in office one or more personal representatives or collectors, the appointment of successors shall not be required unless:

  1. The clerk of superior court determines, in the discretion of the clerk of superior court, that it is in the best interest of the estate to appoint a successor or successors to the personal representatives or collectors whose letters have been revoked, or
  2. In the case of executors, the will so provides.

History

(1868-9, c. 113, s. 92; Code, s. 1521; Rev., s. 35; C.S. 32; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "act as successor to the sole or last surviving personal representative or collector" for "act as his successor" in the first sentence of the introductory paragraph; and substituted "the discretion of the clerk of superior court" for "his discretion" in subdivision (1).

CASE NOTES

Clerk is required to immediately appoint some person to succeed in the administration of the estate, and it is immaterial so far as continuity of the succession is concerned whether the successor be administrator d.b.n., executor, administrator c.t.a., administrator c.t.a., d.b.n., or collector, Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697 (1946), decided under prior law.

Successor Cannot Be Appointed until Vacancy Exists. - Since a person to whom letters testamentary have been issued has authority to represent the estate until his death, resignation or until he has been removed or the letters testamentary have been revoked in accordance with statutory procedure, the appointment by the clerk of an administrator c.t.a., d.b.n., upon petition of the residuary legatee alleging failure of the executor to account to the estate for rents and profits, is void, the clerk being without jurisdiction to make the appointment. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562 (1940), decided under prior law.


§ 28A-9-7. Rights and duties devolve on successor.

After the revocation of letters pursuant to this Article and upon the qualification and appointment of a successor, the substituted personal representative or collector shall succeed to all the powers stated in G.S. 28A-13-7. The substituted personal representative or collector shall be subject to all the duties, responsibilities and liabilities of the original personal representative or collector, other than liabilities arising out of the grounds for revocation.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "The substituted personal representative or collector" for "He" in the last sentence.

ARTICLE 10. Resignation.

Sec.

§ 28A-10-1. Clerk's power to accept resignation.

The clerk of superior court in the county where a person has been appointed personal representative shall have the power to accept that person's resignation.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "that person's resignation" for "his resignation."

§ 28A-10-2. Contents of petition; notice.

  1. When a personal representative desires to resign the personal representative's office, the personal representative shall file a verified petition in the office of the clerk of the superior court, setting forth:
    1. The facts relating to the personal representative's appointment and qualifications;
    2. The names and residences of all interested persons known to the personal representative;
    3. A full statement of the reasons why the petitioner should be permitted to resign the petitioner's office; and
    4. A statement that the personal representative has filed with the clerk of superior court the personal representative's accounts and a record of the personal representative's conduct of the office.
  2. Notice of the petition for resignation, together with the date and time of the hearing thereon, shall be served upon all interested persons named in the petition in such manner as the clerk of superior court shall determine.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subsection (a), substituted "the personal representative's" for "his," or similar language; and in subdivision (a)(3) substituted "the petitioner's office" for "his office."

§ 28A-10-3. Statement of account; record of conduct.

When the personal representative files the personal representative's petition requesting permission to resign the personal representative's office, the personal representative shall also file a verified statement of:

  1. The personal representative's accounts since that personal representative's qualification, or if the personal representative has previously filed an account, a statement of the personal representative's accounts since the date thereof;
  2. The assets of the estate and their location;
  3. The debts and liabilities of the estate;
  4. All facts and circumstances known to the personal representative the disclosure of which is necessary for a full and fair assessment of the personal representative's conduct of the office; and
  5. All additional facts and circumstances known to the personal representative the disclosure of which is necessary for a full and fair understanding of all matters concerning the estate.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted "the personal representative's" for "his," or similar language.

§ 28A-10-4. Hearing; order.

The clerk of superior court shall conduct a hearing in accordance with Article 2 of this Chapter on the petition not sooner than 10 days nor later than 20 days after notice to interested persons pursuant to G.S. 28A-10-2(b). If the clerk of superior court finds all the accounts proper, including accounts subsequent to the filing of the petition, and determines that the resignation of the personal representative is in the best interest of the estate and can be allowed, the resignation may be approved subject to the provisions of G.S. 28A-10-5. Except in cases governed by G.S. 28A-10-8, the clerk of superior court shall appoint a successor pursuant to G.S. 28A-4-1.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted "in accordance with Article 2 of this Chapter" in the first sentence and substituted "the clerk of superior court shall appoint" for "he shall appoint" in the last sentence.

§ 28A-10-5. When resignation becomes effective.

The resignation shall not become effective until:

  1. A successor has been duly qualified, unless G.S. 28A-10-8 is applicable; and
  2. The clerk of superior court is satisfied that the accounts of the personal representative are true and correct; and
  3. The personal representative has accounted to the personal representative's successor in full for all assets of the estate, or if pursuant to G.S. 28A-10-8 no successor is appointed, to the remaining personal representative or representatives, and the personal representative's final account has been filed with and approved by the clerk of superior court.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "the personal representative's" for "his" in subdivision (3).

CASE NOTES

Cited in Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754 (1983).


§ 28A-10-6. Appeal; stay effected.

Any interested person who has appeared at the hearing and objected to the order of the clerk of superior court granting or denying resignation may appeal an order denying or allowing the resignation as a special proceeding pursuant to G.S. 28A-2-9(b). The clerk of superior court may issue a stay of an order allowing the resignation upon the appellant posting an appropriate bond set by the clerk until the cause is heard and determined upon appeal.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

§ 28A-10-7. Rights and duties devolve on successor.

Upon the qualification and appointment of a successor to a personal representative whose resignation has been allowed as provided in G.S. 28A-10-4, the substituted personal representative shall succeed to all the powers as provided in G.S. 28A-13-7 and shall also be subject to all the duties, responsibilities, and liabilities as provided in Article 13.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "as provided in" for "stated in."

§ 28A-10-8. When appointment of successor to personal representative who has resigned is not required.

When two or more personal representatives have qualified, and one or more personal representatives resign pursuant to this Article, leaving in office one or more personal representatives, the appointment of successors shall not be required unless:

  1. The clerk of superior court determines, in the clerk's discretion, that it is in the best interest of the estate to appoint a successor or successors to the personal representative or representatives who have resigned, or
  2. In the case of executors, the will so provides.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the clerk's" for "his" in subdivision (1).

ARTICLE 11. Collectors.

Sec.

§ 28A-11-1. Appointment and qualifications of collectors.

When for any reason other than a situation provided for in Chapter 28B or Chapter 28C entitled "Estates of Absentees in Military Service" and "Estates of Missing Persons" a delay is encountered in the issuance of letters to a personal representative or when, in any case, the clerk of superior court finds that the best interest of the estate would be served by the appointment of a collector, the clerk of superior court may issue letters of collection to any person or persons not disqualified to act as a personal representative under G.S. 28A-4-2.

History

(R.C., c. 46, s. 9; C.C.P., s. 463; 1868-9, c. 113, s. 115; Code, s. 1383; Rev., s. 22; C.S., s. 24; 1924, c. 43; 1965, c. 815, s. 2; 1967, c. 24, s. 14; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the clerk of superior court may" for "he may."

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

When Appointment Proper. - A collector is appointed only when there is no one in rightful charge of the estate, and this section is applicable only to cases where there are difficulties in limine disconnected with controversy or contest over the will, preventing the admission of the will to probate or the issuing of letters testamentary, e.g., protracted absence of witnesses, illness of the executor, etc., also where a caveat is entered at the time the will is offered to probate. In re Palmer's Will, 117 N.C. 133, 23 S.E. 104 (1895).

Appointee in Discretion of Clerk. - It is discretionary with the clerk to appoint as collector either the person named as executor in the writing purporting to be the will, or some other person. In re Little's Will, 187 N.C. 177, 121 S.E. 453 (1924).

Appointment for Purpose of Wrongful Death Action. - Pending the appointment and qualification of an administrator, or probate and filing of a will, a collector may be appointed in order that action for wrongful death may be instituted within the statutory time. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697 (1946), citing In re Palmer's Will, 117 N.C. 133, 23 S.E. 104 (1895).

After Will Admitted to Probate. - After a will has been admitted to probate in common form and letters testamentary have been issued, the clerk cannot remove the executor and appoint a collector, without a hearing based on notice to show cause why the executor should not be removed. In re Palmer's Will, 117 N.C. 133, 23 S.E. 104 (1895).


§ 28A-11-2. Oath and bond.

Every collector shall take an oath as prescribed in G.S. 28A-7-1 and give bond as required in Article 8 of this Chapter for personal representatives.

History

(C.C.P., s. 464; Code, s. 1384; Rev., s. 23; C.S., s. 25; 1973, c. 1329, s. 3.)

§ 28A-11-3. Duties and powers of collectors.

  1. Every collector shall:
    1. Take such possession, custody, or control of the personal property of the decedent as in the exercise of reasonable judgment the collector deems necessary to its preservation;
    2. Publish notices to creditors as provided by Article 14 of this Chapter;
    3. Collect claims payable to the estate;
    4. Maintain and defend actions in behalf of the estate;
    5. File inventories, accounts, and other reports in the same manner as is required of personal representatives;
    6. Renew obligations of the decedent in the same manner as the personal representative is allowed to do under the provisions of Article 13 of this Chapter; and
    7. Under the express direction and supervision of the clerk of superior court, possess, exercise and perform all other powers, duties and liabilities given to personal representatives by Article 13 of this Chapter.
  2. Reserved.

History

(R.C., c. 46, s. 6; C.C.P., s. 465; 1868-9, c. 113, s. 115; Code, s. 1385; Rev., s. 24; C.S., s. 26; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Editor's Note. - Subsection (b) has been set out as "Reserved" at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the collector" for "he" in subdivision (a)(1).

CASE NOTES

No Power to Lease Land Under Former Statute. - See Lee v. Lee, 74 N.C. 70 (1876), decided under prior law.

Cited in Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447 (1988).


§ 28A-11-4. When collectors' powers cease; settlement of accounts.

  1. When letters testamentary or letters of administration are issued, or when in any case the clerk of superior court terminates the appointment of the collector, the powers of the collector cease.
  2. Upon the termination of the collector's appointment, the collector shall surrender to the personal representative or to the person otherwise entitled thereto or to the clerk all assets of the estate under this control and shall file with the clerk a verified statement of:
    1. The collector's accounts since  the collector's qualification, or if the collector has previously filed an account, a statement of the collector's accounts since the date thereof;
    2. The assets of the estate and their location;
    3. The debts and liabilities of the estate;
    4. All facts and circumstances known to the collector the disclosure of which is necessary for a full and fair assessment of the collector's conduct of the office; and
    5. All additional facts and circumstances known to the collector the disclosure of which is necessary for a full and fair understanding of all matters concerning the estate.
  3. The clerk of superior court shall examine the account of the collector and if the clerk finds all of the accounts proper, the clerk shall by order approve the account.

History

(R.C., c. 46, s. 7; C.C.P., s. 466; 1868-9, c. 113, s. 115; Code, s. 1386; Rev., s. 25; C.S., s. 27; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subsection (b), substituted "the collector's" for "his," or similar language; and in subsection (c), twice substituted "the clerk" for "he."

CASE NOTES

Allowance of Counsel Fee. - A collector who resists the claim of the executor is not entitled to an allowance for counsel fees paid by him in such litigation, where the executor prevails in the litigation. Johnson v. Marcom, 121 N.C. 83, 28 S.E. 58 (1897), decided under prior law.


§ 28A-11-5. Compensation.

A collector shall be compensated in accordance with Article 23 of this Chapter.

History

(1977, c. 814, s. 4.)

ARTICLE 12. Public Administrator.

Sec.

§ 28A-12-1. Appointment and term.

There shall be a public administrator in every county, appointed by the clerk of superior court, with the written approval of the senior resident superior court judge of the district in which the appointment is made, for a term of four years.

History

(1868-9, c. 113; Code, s. 1389; Rev., s. 18; C.S, s. 17; 1925, c. 253; 1973, c. 1329, s. 3.)

CASE NOTES

Property Right. - The public administrator's office is a property right which cannot be divested without due process of law. Trotter v. Mitchell, 115 N.C. 190, 20 S.E. 386 (1894), decided under prior law.

Not an Office Within Constitutional Prohibition Against Holding More Than One Office. - A public administrator is not a holder of a public office within the constitutional prohibition against holding more than one office, and hence a quo warranto proceeding will not lie against him simply because he is also holding the office of recorder. State v. Smith, 145 N.C. 476, 59 S.E. 649 (1907), decided under prior law.

Mistake of Clerk as to Term. - The appointment of a public administrator is for the time specified in the section, and is not affected by a mistake of the clerk in stating in the appointment that it was for the unexpired term of his predecessor, or fixing the term of the new appointee for less period. Boynton v. Heartt, 158 N.C. 488, 74 S.E. 470 (1912), decided under prior law.


§ 28A-12-2. Oath of office.

The public administrator shall take and subscribe an oath or affirmation in the form provided in G.S. 11-11 for administrators and in the manner provided in G.S. 28A-7-1; and the oath or affirmation so taken and subscribed shall be filed in the office of the clerk of superior court.

History

(1868-9, c. 113, ss. 2, 5; Code, s. 1393; Rev., s. 19; C.S., s. 18; 1973, c. 1329, s. 3.)

§ 28A-12-3. Qualification and bond.

  1. The public administrator shall qualify and give bond with regard to each estate administered by the public administrator as provided in Article 8 of this Chapter, at the expense of such estate.
  2. As an alternative to and in lieu of the bonding requirement provided in subsection (a), the administrator may, in the discretion of the clerk of superior court, enter into a single permanent bond, secured by any of the methods provided in G.S. 28A-8-2(4), payable to the State of North Carolina, conditioned upon the faithful performance of the duties of the administrator's office and obedience to all lawful orders of the clerk of superior court or other court touching the administration of any estate committed to the administrator. The amount of the permanent bond shall be determined by the clerk, based on the total value of all the estates administered by the public administrator, and may be increased or decreased from time to time as the clerk determines is necessary. The expense of the bond shall be borne by the estates administered by the administrator, as determined by the clerk.

History

(1868-9, c. 113, ss. 2, 3, 4; Code, ss. 1390, 1391, 1392; Rev., s. 320; 1915, c. 216; C.S., s. 19; 1941, c. 243; 1973, c. 1329, s. 3; 1979, cc. 111, 726; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "by the public administrator" for "by him" in subsection (a); and substituted "the administrator's" for "his," or similar language, twice in subsection (b).

CASE NOTES

Removal for Failure to Renew Bond. - A public administrator cannot be removed for failure to renew his bond without being notified to show cause. Trotter v. Mitchell, 115 N.C. 190, 20 S.E. 386 (1894), decided under prior law.


§ 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).

History

(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.)

Cross References. - As to renunciation of the right to administer, see G.S. 28A-5-2.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the public administrator's" for "his" in subdivision (1).

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

Public administrator acquires no rights or interest to administer an estate until he is qualified after the period allowed to the relatives to qualify in the order prescribed. In re Neal's Will, 182 N.C. 405, 109 S.E. 70 (1921).

Six Months Is Reasonable Time to Apply for Appointment of Administrator. - Six months after the death of testator is a reasonable time within which application should be made, in proper instances, for appointment of administrator c.t.a. In re Estate of Smith, 210 N.C. 622, 188 S.E. 202 (1936).

Prior Right of Others After Six Months. - While after the expiration of six months prior rights to administration may be deemed renounced and a public administrator appointed, yet even after six months, if he is not as yet appointed, persons of prior right to administration may be appointed in preference to him. In re Bailey's Will, 141 N.C. 193, 53 S.E. 844 (1906). See Hill v. Alspaugh, 72 N.C. 402 (1875).

After the expiration of six months, should the public administrator fail to apply, the field is open to the clerk of the superior court to treat all right of preference as renounced and to appoint, in the exercise of his discretion, some suitable person to administer the estate. Brooks v. E.H. Clement Co., 201 N.C. 768, 161 S.E. 403 (1931).

Cited in Baer v. Davis, 47 N.C. App. 581, 267 S.E.2d 581 (1980).


§ 28A-12-5. Powers and duties.

  1. The public administrator shall have, in respect to the several estates in the public administrator's hands, all the rights and powers and shall be subject to all the duties and liabilities of other personal representatives.
  2. After the expiration of the term of office of a public administrator or the public administrator's resignation as public administrator, the public administrator shall continue, subject to the provisions of Articles 9 and 10 of this Chapter, to administer the several estates previously committed to the public administrator until the public administrator has fully administered the same, and the public administrator's bonds shall continue in effect as to all such estates.

History

(1868-9, c. 113, s. 7; 1876-7, c. 239; Code, s. 1395; Rev., s. 21; C.S., s. 21; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted "the public administrator's" for "his," or similar language.

CASE NOTES

Applied in City of Durham v. Hicks, 135 N.C. App. 699, 522 S.E.2d 583 (1999).


§ 28A-12-6. Removal from office.

If letters of administration issued to the public administrator with respect to any estate are subsequently revoked on the grounds that they were obtained by false representation as provided in G.S. 28A-9-1(a)(2), or on the grounds as specified in G.S. 28A-9-1(a)(1), 28A-9-1(a)(3), 28A-9-2(a)(3), 28A-9-2(a)(5), or 28A-9-2(a)(6) or if the public administrator becomes a nonresident of the State, the clerk of superior court shall order the removal of the public administrator from office upon notice and hearing in accordance with Article 2 of this Chapter.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the public administrator becomes" for "he becomes" and added "upon notice and hearing in accordance with Article 2 of this Chapter."

§ 28A-12-7. Procedure after removal from office.

The clerk of superior court shall require of any public administrator who is removed from office pursuant to G.S. 28A-12-6 a complete accounting of all of the public administrator's activities as public administrator and for the property remaining under the public administrator's control by reason of the public administrator's appointment under this Article as administrator of any estate that has not been fully administered at the time of the public administrator's removal. If it appears to the clerk of superior court that grounds exist for revocation of letters of administration issued with respect to any such estate, the clerk shall proceed in accordance with the provisions of Article 9 of this Chapter. If letters of administration are revoked pursuant to such proceedings, the clerk of superior court shall issue letters of administration to the successor public administrator or to some other person not disqualified under G.S. 28A-4-2.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted "the public administrator's" for "his," or similar language, and "the clerk" for "he" in the second sentence.

§ 28A-12-8. Compensation.

A public administrator shall be compensated in accordance with Article 23 of this Chapter.

History

(1977, c. 814, s. 5.)

ARTICLE 13. Representative's Powers, Duties and Liabilities.

Sec.

§ 28A-13-1. Time of accrual of duties and powers.

The duties and powers of a personal representative commence upon the personal representative's appointment. The powers of a personal representative relate back to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. However, a person named executor in a will may, prior to appointment, carry out written instructions of the decedent relating to the decedent's body, funeral and burial arrangements; provided that a health care agent authorized in a valid health care power of attorney to make body, funeral, and burial arrangements shall have precedence in making these arrangements, both before and after qualification of the decedent's personal representative, to the extent provided in G.S. 32A-19(b). A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.

History

(1973, c. 1329, s. 3; 2007-502, s. 17; 2011-344, s. 4.)

Editor's Note. - Session Laws 2007-502, s. 19, provides: "The North Carolina Institute of Medicine (Institute) shall study issues related to the provision of end-of-life medical care in North Carolina. As part of the study, the Division of Health Service Regulation, Department of Health and Human Services, and the North Carolina Board of Medicine shall provide to the Institute nonidentifying information regarding claims and complaints related to end-of-life medical treatment by health care providers that was contrary to the express wishes of either the patient or a person authorized by law to make treatment decisions on behalf of the patient. The Institute may review any other data related to end-of-life medical care and treatment the Institute determines is relevant.

"The purpose of this study is to determine whether statutory changes related to advance directives and health care powers of attorney impact the type and quantity of end-of-life medical care provided to patients, whether the patient's or patient representative's express wishes regarding the provision of treatment at the end of life are being honored, and whether there is any change in the number of persons who request continued treatment at the end of their lives, but do not receive that treatment.

"The Institute shall report its findings to the following entities no later than January 30, 2013:

"(1) The 2013 General Assembly.

"(2) The North Carolina Bar Association.

"(3) The North Carolina Medical Society."

Effect of Amendments. - Session Laws 2007-502, s. 17, effective October 1, 2007, in the third sentence, inserted "However" at the beginning, moved "prior to appointment" from the beginning to the middle and inserted the proviso at the end and made gender neutral changes.

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's" for "his or her" in the first sentence.

CASE NOTES

Wrongful Death Action. - Trial court erred in granting a city's motion to dismiss an administratrix's wrongful death action on the ground that it was barred by the statute of limitations, G.S. 1-53(4), because an application for an extension of the time to file the complaint pursuant to N.C. R. Civ. P. 3 gave the city notice that the lawsuit involved the death of the decedent when fire department employees allegedly failed to provide appropriate emergency care, and the administratrix's participation in the lawsuit once she became administratrix was sufficient to ratify the filing of the summons and application for extension of time; under N.C. R. Civ. P. 17(a), that ratification related back to the filing of the summons, rendering the wrongful death action timely. Estate of Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428 (2009).

Claim Brought by Foreign Personal Representative Before Qualifying Locally. - G.S. 28A-26-6 neither addresses nor answers the question of what must happen procedurally to a claim brought by a foreign personal representative who locally qualifies after a claim brought by him is filed. Indeed, this section speaks more to this question. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Whether a claim brought by a foreign personal representative before he is locally qualified must be dismissed and reinstituted or whether this defect can be cured by supplemental pleading in which the claim as instituted is duly ratified by the personal representative after he is locally qualified are questions which must be answered by reference to the principle codified in this section and to rules of pleading as set out in G.S. 1A-1, Rules 15 and 17(a). Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Testamentary directions for disposition of the testator's body must be treated as valid upon the death of the testator, and funeral directors who act upon the provision in good faith cannot later be held liable in tort because they acted before the will was probated. Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100 (1984).

A testamentary provision directing disposition of the testator's body must prevail over conflicting wishes of the testator's next-of-kin and the next-of-kin in such a case have no right to possession of the body for the purpose of selecting funeral arrangements and therefore they have no standing to sue for negligence for failure to carry out their instructions for disposal of testator's body. Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100 (1984).

Cited in Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276 (4th Cir. 1993).

§ 28A-13-2. General duties; relation to persons interested in estate.

A personal representative is a fiduciary who, in addition to the specific duties stated in this Chapter, is under a general duty to settle the estate of the personal representative's decedent as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. A personal representative shall use the authority and powers conferred upon the personal representative by this Chapter, by the terms of the will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is party, and by the rules generally applicable to fiduciaries, for the best interests of all persons interested in the estate, and with due regard for their respective rights.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's" for "his," or similar language throughout the section.

CASE NOTES

Co-Executors Lacked Authority to Enter Into Guaranty Agreement. - Since there was no order in the estate file approving or otherwise authorizing entry into the guaranty by the co-executors of the estate and since the will clearly provided that the co-executors were under a duty to settle the estate as expeditiously as possible pursuant to G.S. 28A-13-2, there was no guaranty authorization in the will. RL Regi N.C. LLC v. Estate of Moser, 222 N.C. App. 528, 731 S.E.2d 849 (2012).

Authority to Compromise Claims. - Charity could not intervene as of right under G.S. 1A-1, N.C. R. Civ. P. 24(a)(2) in an interpleader action that was filed because the decedent's ex-wife was the beneficiary on the decedent's Individual Retirement Account (IRA), but the charity and the decedent's brother were awarded the IRA in the decedent's will as: (1) the will gave the personal representative the G.S. ch. 28A and 32 powers, including those in G.S. 28A-18-1(a), G.S. 28A-13-3(a)(15), and G.S. 28A-13-2, to compromise and release claims; (2) the personal representative and the ex-wife entered into a settlement resolving the action; and (3) the charity did not show that its interest was not adequately represented in the interpleader action. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863 (2013).

Applied in Holt v. Lynch, 307 N.C. 234, 297 S.E.2d 594 (1982).

Cited in Holt v. Lynch, 57 N.C. App. 532, 291 S.E.2d 920 (1982); In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).


§ 28A-13-3. Powers of a personal representative or fiduciary.

  1. Except as qualified by express limitations imposed in a will of the decedent or a court order, and subject to the provisions of G.S. 28A-13-6 respecting the powers of joint personal representatives, a personal representative has the power to perform in a reasonable and prudent manner every act which a reasonable and prudent person would perform incident to the collection, preservation, liquidation or distribution of a decedent's estate so as to accomplish the desired result of settling and distributing the decedent's estate in a safe, orderly, accurate and expeditious manner as provided by law, including the powers specified in the following subdivisions:
    1. To take possession, custody or control of the personal property of the decedent. If in the opinion of the personal representative  the personal representative's possession, custody or control of such property is not necessary for purposes of administration, such property may be left with or surrendered to the heir or devisee presumptively entitled thereto. The personal representative has the power to take possession, custody or control of the real property of the decedent if the personal representative determines such possession, custody or control is in the best interest of the administration of the estate, including the power to eject occupants of real property. Prior to exercising such power over real property the procedure as set out in subsection G.S. 28A-13-3(c) shall be followed, except with respect to real property that is devised to the personal representative in the decedent's will or title to which is acquired by the personal representative during the estate administration, in which case the personal representative shall be immediately entitled to custody, possession, and control, and may institute an estate proceeding under subsection (d) of this section to enforce those rights. If the personal representative determines that such possession, custody or control is not in the best interest of the administration of the estate such property may be left with or surrendered to the heir or devisee presumptively entitled thereto.
    2. To retain assets owned by the decedent pending distribution or liquidation even though such assets may include items which are otherwise improper for investment of trust funds.
    3. To receive assets from other fiduciaries or other sources.
    4. To obtain the decedent's digital assets, as provided in Chapter 36F of the General Statutes, including catalogues and content, and to request and authorize disclosure of the digital assets.
    5. To complete performance of contracts entered into by the decedent that continue as obligations of the decedent's estate, or to refuse to complete such contracts, as the personal representative may determine to be in the best interests of the estate, but such refusal shall not limit any cause of action which might have been maintained against decedent if the decedent had refused to complete such contract. In respect to enforceable contracts by the decedent to convey an interest in land, the provisions of G.S. 28A-17-9 are controlling.
    6. To deposit, as a fiduciary, funds of the estate in a bank, including a bank operated by the personal representative pursuant to G.S. 53-163.1.
    7. To make, as a fiduciary, any form of investment allowed by law to the State Treasurer under G.S. 147-69.1, with funds of the estate, when such are not needed to meet debts and expenses immediately payable and are not immediately distributable, including money received from the sale of other assets; or to enter into other short-term loan arrangements that may be appropriate for use by trustees or beneficiaries generally. Provided, that in addition to the types of investments hereby authorized, deposits in interest-bearing accounts of any credit union authorized to do business in this State, when such deposits are insured in the same manner as required by G.S. 147-69.1 for deposits in a savings and loan association, are hereby authorized.
    8. To abandon or relinquish all rights in any property when, in the opinion of the personal representative acting reasonably and in good faith, it is valueless, or is so encumbered or is otherwise in such condition that it is of no benefit to the estate.
    9. To vote shares of stock or other securities in person or by general or limited proxy, and to execute waivers, consents or objections with respect to such stock or securities.
    10. To pay calls, assessments, and any other sums chargeable or accruing against or on account of securities.
    11. To hold shares of stock or other securities in the name of a nominee, without mention of the estate in the instrument representing stock or other securities or in registration records of the issuer thereof; provided, that
      1. The estate records and all reports or accounts rendered by the personal representative clearly show the ownership of the stock or other securities by the personal representative and the facts regarding its holdings, and
      2. The nominee shall not have possession of the stock or other securities or access thereto except under the immediate supervision of the personal representative or when such securities are deposited by the personal representative in a clearing corporation as defined in G.S. 25-8-102.
    12. To insure, at the expense of the estate, the assets of the estate in the personal representative's possession, custody or control against damage or loss.
    13. To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the personal representative shall deem advisable, including the power of a corporate personal representative to borrow from its own banking department, for the purpose of paying debts, taxes, and other claims against the estate, and to mortgage, pledge or otherwise encumber such portion of the estate as may be required to secure such loan or loans. In respect to the borrowing of money on the security of the real property of the decedent, G.S. 28A-17-11 is controlling.
    14. To renew obligations of the decedent for the payment of money.
    15. To advance the personal representative's own money for the protection of the estate, and for all expenses, losses and liabilities sustained in the administration of the estate or because of the holding or ownership of any estate assets. For such advances, with any interest, the personal representative shall have a lien on the assets of the estate as against a devisee or heir.
    16. To compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the estate.
    17. To pay taxes, assessments, the personal representative's own compensation, and other expenses incident to the collection, care, administration and protection of the assets of the estate in the personal representative's possession, custody or control.
    18. To sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
    19. To allocate items of income or expense to either estate income or principal, as permitted or provided by law.
    20. To employ persons, including attorneys, auditors, investment advisors, appraisers or agents to advise or assist the personal representative in the performance of the personal representative's administrative duties.
    21. To continue any business or venture in which the decedent was engaged at the date of the decedent's death, where such continuation is reasonably necessary or desirable to preserve the value, including goodwill, of the decedent's interest in such business. With respect to the use of the decedent's interest in a continuing partnership, the provisions of G.S. 59-71 and 59-72 qualify this power; and with respect to farming operations engaged in by the decedent at the time of the decedent's death, the provisions of G.S. 28A-13-4 qualify this power.
    22. To incorporate or participate in the incorporation of any business or venture in which the decedent was engaged at the time of the decedent's death.
    23. To provide for the exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.
    24. To maintain actions for the wrongful death of the decedent according to the provisions of Article 18 of this Chapter and to compromise or settle any such claims, whether in litigation or not. Unless all persons who would be entitled to receive any damages recovered under G.S. 28A-18-2(b)(4) are competent adults and have consented in writing, any such settlement shall be subject to the approval of a judge of the court or tribunal exercising jurisdiction over the action or a judge of the district or superior court in cases where no action has previously been filed. If the claim is brought under Article 31 of Chapter 143 of the General Statutes, the settlement is subject to the approval of the Industrial Commission in accordance with that Article. It shall be the duty of the personal representative in distributing the proceeds of such settlement in any instance to take into consideration and to make a fair allocation to those claimants for funeral, burial, hospital and medical expenses which would have been payable from damages which might have been recovered had a wrongful death action gone to judgment in favor of the plaintiff.
    25. To maintain any appropriate action or proceeding to recover possession of any property of the decedent, or to determine the title thereto; to recover damages for any injury done prior to the death of the decedent to any of the decedent's property; and to recover damages for any injury done subsequent to the death of the decedent to such property.
    26. To purchase at any public or private sale of any real or personal property belonging to the decedent's estate or securing an obligation of the estate as a fiduciary for the benefit of the estate when, in  the personal representative's opinion, it is necessary to prevent a loss to the estate.
    27. To sell or lease personal property of the estate in the manner prescribed by the provisions of Article 16 of this Chapter.
    28. To sell or lease real property of the estate in the manner prescribed by the provisions of Article 17 of this Chapter.
    29. To enter into agreements with taxing authorities to secure the benefit of the federal marital deduction pursuant to G.S. 28A-22-6.
    30. To pay or satisfy the debts and claims against the decedent's estate in the order and manner prescribed by Article 19 of this Chapter.
    31. To distribute any sum recovered for the wrongful death of the decedent according to the provisions of G.S. 28A-18-2; and to distribute all other assets available for distribution according to the provisions of this Chapter or as otherwise lawfully authorized.
    32. To exercise such additional lawful powers as are conferred upon the personal representative by the will.
    33. To execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the personal representative.
    34. Repealed by Session Laws 2009-48, s. 10, effective October 1, 2009, and applicable to renunciations and powers of attorney executed on or after that date.
  2. Except as qualified by express limitations imposed in a will of the decedent, and subject to the provisions of G.S. 28A-13-6 respecting the powers of joint personal representatives, a personal representative shall have absolute discretion to make the election as to which items of the decedent's personal and household effects shall be excluded from the carry over basis provision of the federal income tax law and such election shall be conclusive and binding on all concerned.
  3. Subject to the provisions of G.S. 28A-13-6 respecting the powers of joint personal representatives, a personal representative has the power to renounce in accordance with the provisions of Chapter 31B of the General Statutes.
  4. Repealed by Session Laws 2012-18, s. 3.7, effective June 11, 2012.
  5. Except with respect to real property that is devised to the personal representative in the decedent's will, or title to which is acquired by the personal representative during the estate administration, in which case the personal representative shall be immediately entitled to custody, possession, and control and may institute an estate proceeding under subsection (d) of this section to enforce those rights, prior to the personal representative exercising possession, custody or control over real property of the estate, the personal representative shall petition the clerk of court to obtain an order authorizing such possession, custody or control. The petition shall include:
    1. A description of the real property which is the subject of the petition;
    2. The names, ages, and addresses, if known, of the devisees and heirs of the decedent;
    3. A statement by the personal representative that the personal representative has determined that such possession, custody or control is in the best interest of the administration of the estate.
  6. The personal representative has the power to institute a proceeding pursuant to Article 2 of this Chapter to enforce the rights set forth in this section. The clerk of superior court may enter orders necessary to enforce the rights set forth in this section. If the person occupying the real property is a tenant or lessee of the property, the personal representative may seek ejectment of the tenant or lessee only pursuant to the provisions of Article 3 of Chapter 42 of the General Statutes.

Such personal representative shall be personally liable for any acts or omissions of such nominee in connection with such stock or other securities so held, as if such personal representative had done such acts or been guilty of such omissions.

The devisees and heirs will be made parties to the proceeding by service of summons in the manner prescribed by law. If the clerk of court determines that it is in the best interest of the administration of the estate to authorize the personal representative to take possession, custody or control, the clerk of court shall grant an order authorizing that power. If a special proceeding has been instituted by the personal representative pursuant to G.S. 28A-15-1(c), the personal representative may petition for possession, custody, or control of any real property as a part of that proceeding and is not required to institute a separate special proceeding.

History

(1868-9, c. 113, ss. 73, 77; Code, ss. 1501, 1505; Rev., ss. 85, 159; C.S., ss. 170, 171; 1925, c. 86; 1933, cc. 161, 196, 498; 1973, c. 1329, s. 3; 1975, c. 19, s. 9; c. 371, s. 4; 1977, c. 556; 1979, c. 467, s. 21; c. 717, s. 3; 1985, c. 689, s. 8; 1991, c. 460, s. 3; 1995, c. 401, s. 1; 1997-181, s. 22; 2001-413, s. 2; 2002-159, s. 8; 2007-106, s. 1; 2009-48, s. 10; 2011-344, s. 4; 2012-18, s. 3.7; 2016-53, s. 3.)

Local Modification. - City of Winston-Salem: 1995, c. 112, s. 1.

Editor's Note. - Session Laws 2016-53, s. 11, is a severability clause.

Effect of Amendments. - Session Laws 2007-106, s. 1, effective October 1, 2007, in subsection (a), substituted "person" for "man" near the middle and deleted "but not limited to" preceding "the powers specified" near the end; and substituted "pursuant to G.S. 53-163.1." for "upon compliance with the provisions of G.S. 36A-63" at the end of subdivision (a)(5). See Editor's note for applicability.

Session Laws 2009-48, s. 10, effective October 1, 2009, and applicable to renunciations and powers of attorney executed on or after that date, deleted subdivision (a)(33), which read: "To renounce in accordance with the provisions of Chapter 31B of the General Statutes."; added subsection (a2); and in subsection (b), substituted "(a), (a1), and (a2) of this section" for "(a) and (a1) above."

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made gender neutral changes throughout the section; in subdivision (a)(1), added "including the power to eject occupants of real property" in the second sentence, and added the exception at the end of the third sentence; in the first sentence of subsection (c), added the language beginning "Except with respect to real property" and ending "to enforce those rights"; and added subsection (d).

Session Laws 2012-18, s. 3.7, effective June 11, 2012, deleted subsection (b), which read: "(b) Any question arising out of the powers conferred by subsections (a), (a1), and (a2) of this section shall be determined in accordance with the provisions of Article 18 of this Chapter."; and, in subsection (d), in the first sentence, substituted "has the power to institute a proceeding" for "shall have the power to institute an estate proceeding," and, at the end of the first and second sentences, substituted "section" for "subsection."

Session Laws 2016-53, s. 3, effective June 30, 2016, added subsection (3a).

CASE NOTES

Recovery of Realty by Administrator De Bonis Non, Cum Testamento Annexo. - Where an executor is entitled to the possession of the land, his successor, an administrator de bonis non, cum testamento annexo, is entitled to the same rights and remedies as his predecessor in office. Smathers v. Moody, 112 N.C. 791, 17 S.E. 532 (1893), decided under prior law.

Authority to Execute Lease. - A person who executes a lease as executor of an estate and represents to the lessee that he has authority to do so is not personally liable for a breach of the lease when an examination of the will on record would have revealed the executor did not have authority to execute the lease. Trull v. McIntyre, 48 N.C. App. 599, 269 S.E.2d 308, cert. denied, 301 N.C. 531, 273 S.E.2d 463 (1980).

No Authority to Waive Attorney-Client Privilege - Deceased client's widow did not have the authority, as his personal representative, under G.S. 28A-13-3(a)(15), to waive his attorney-client privilege, by reopening his estate "to handle legal matters," as it was not plausible that she reopened the estate in consideration of the estate's release from civil liability given by the family of an individual whose murder investigation the client was involved in when he committed suicide, as the release stated it was in consideration for the sum of one dollar and did not mention an affidavit the widow executed purporting to waive the client's attorney-client privilege, and the estate had no assets when it was reopened. In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

Authority to Compromise Claims. - Charity could not intervene as of right under G.S. 1A-1, N.C. R. Civ. P. 24(a)(2) in an interpleader action that was filed because the decedent's ex-wife was the beneficiary on the decedent's Individual Retirement Account (IRA), but the charity and the decedent's brother were awarded the IRA in the decedent's will as: (1) the will gave the personal representative the N.C. Gen. Stat. ch. 28A and 32 powers, including those in G.S. 28A-18-1(a), G.S. 28A-13-3(a)(15), and G.S. 28A-13-2, to compromise and release claims; (2) the personal representative and the ex-wife entered into a settlement resolving the action; and (3) the charity did not show that its interest was not adequately represented in the interpleader action. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863 (2013).

No Conflict Between G.S. 97-10.2(f)(1) and Subdivision (a)(23) of This Section. - G.S. 97-10.2(f)(1) addresses solely the distribution of proceeds of, inter alia, a wrongful death settlement, whereas subdivision (a)(23) of this section controls the manner in which a wrongful death action may be settled by an administrator. There is thus no conflict between the statutes, fairly and properly construed, and each remains effective in its respective area of application. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

Jurisdiction over Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Subdivision (a)(23) of this section specifically addresses settlement of wrongful death claims and is thus controlling, even where an administrator's actions may also be characterized as abandonment of a claim by the estate within the more general language of subdivision (a)(15) of this section. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

Prior Settlement and Approval of Attorneys' Fees Not Bar to Malpractice Suit. - Settlement and approval of attorneys' fees in previous wrongful death action was not a bar to suit for attorney malpractice alleging negligence and breach of fiduciary duty; collateral estoppel was not applicable so as to support summary judgment in favor of defendants. Beckwith v. Llewellyn, 326 N.C. 569, 391 S.E.2d 189 (1990).

Personal representative has the authority, in accomplishing the expeditious settlement of a decedent's estate, to settle and compromise claims in favor of or against the estate, provided that he acts honestly, reasonably and prudently. Hunter v. Newsom, 121 N.C. App. 564, 468 S.E.2d 802 (1996).

Administratrix's Failure to Account. - Superior court properly removed a decedent's daughter as administratrix of the decedent's estate for failing to file a final accounting because the appeal was an estate proceeding and, while the court's order indicated that the court dismissed the daughter's case rather than affirming the clerk's order, the court properly reviewed the clerk's order consistent with the "on the record" standard. In re Estate of Harper, - N.C. App. - , 837 S.E.2d 602 (2020).

In the determination of whether a deed of trust conveyed by the executor is a debt of the estate, the burden is on the party asserting the validity of the debt as an obligation of the estate to show that the executor acted within his authority as executor. Hunter v. Newsom, 121 N.C. App. 564, 468 S.E.2d 802 (1996).

Applied in Holt v. Lynch, 307 N.C. 234, 297 S.E.2d 594 (1982); State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).

Cited in Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697 (1980); Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981); Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447 (1988); Severance v. Ford Motor Co., 98 N.C. App. 330, 390 S.E.2d 704 (1990); Beckwith v. Llewellyn, 326 N.C. 569, 391 S.E.2d 189 (1990); Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276 (4th Cir. 1993); McInnis v. Provident Life & Accident Ins. Co., 21 F.3d 586 (4th Cir. 1994); Farm Credit Bank v. Edwards, 121 N.C. App. 72, 464 S.E.2d 305 (1995); State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000); Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001); Beyer v. N.C. Div. of Mental Health, - F. Supp. 2d - (W.D.N.C. Oct. 16, 2001); Williams v. Williams, 228 N.C. App. 753, 746 S.E.2d 319 (2013).


§ 28A-13-4. Continuance of farming operations of deceased persons.

When any person dies while engaged in farming operations, the decedent's personal representative is authorized to continue such farming operations until the end of the current calendar year, and until all crops grown during that year are harvested. The net income from such farming operations shall be personal assets of the estate. Any indebtedness incurred in connection with such farming operations after the date of death shall be preferred over the claims of any heir, devisee, distributee, general or unsecured creditor of said estate. Nothing herein contained shall limit the powers of a personal representative under the terms of a will.

History

(1935, c. 163; 1973, c. 1329, s. 3; 2011-284, s. 15; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-284, s. 15, effective June 24, 2011, substituted "the personal representative" for "his personal representative" in the first sentence, and deleted "legatee" following "heir" in the third sentence.

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the decedent's" for "his" in the first sentence.

§ 28A-13-5. Personal representatives hold in joint tenancy.

Any estate or interest in property which becomes vested in two or more personal representatives shall be held by them in joint tenancy with the incident of survivorship.

History

(1868-9, c. 113, s. 74; Code, s. 1502; Rev., s. 166; C.S., s. 172; 1973, c. 1329, s. 3.)

CASE NOTES

Cited in Trull v. McIntyre, 48 N.C. App. 599, 269 S.E.2d 308 (1980).


§ 28A-13-6. Exercise of powers of joint personal representatives by one or more than one.

  1. Repealed by Session Laws 2005-192, s. 5, effective January 1, 2006.
  2. If a will expressly makes provision for the execution of any of the powers of personal representatives by all of them or by any one or more of them, the provisions of the will govern.
  3. Repealed by Session Laws 2005-192, s. 5, effective January 1, 2006.
  4. If there is no governing provision in the will, personal representatives may, by written agreement signed by all of them and filed with and approved by the clerk of superior court of the county in which the personal representatives qualified, provide that any designated one or more of the personal representatives may exercise one or more of the following powers:
    1. Establish and maintain bank accounts for the  estate and issue checks for the estate.
    2. Maintain inventories, accountings, and income and expense records of the estate.
    3. Enter any safety deposit box rented by the estate.
    4. Employ persons as advisors or assistants in the performance of administrative duties, including agents, attorneys, accountants, brokers, appraisers, and custodians.
    5. List estate property for taxes and prepare and file tax returns for the estate.
    6. Collect and give receipts for claims and debts of the estate.
    7. Pay debts, claims, costs of administration, and taxes of the estate.
    8. Compromise, adjust, or otherwise settle any claim by or against the estate and release, in whole or in part, a claim belonging to the estate.
    9. Have custody of the estate property.
    10. Perform any function relating to investment of estate assets.
  5. Subject to subsection (b) of this section, if two or more personal representatives own shares of corporate stock or other securities, their acts with respect to voting shall have the following effect:
    1. If only one votes, in person or by proxy, that personal representative's act binds all;
    2. If more than one vote, in person or by proxy, the act of the majority so voting binds all;
    3. If more that [than] one vote, in person or by proxy, but the vote is evenly split on any particular matter, each faction is entitled to vote the stock or other securities in question proportionately.
  6. Subject to subsections (b), (c1), and (d) of this section, all other acts and duties must be performed by both of the personal representatives if there are two, and by a majority of them if there are more than two. No personal representative who has not joined in exercising a power shall be liable for the consequences of such exercise, nor shall a dissenting personal representative be liable for the consequences of an act in which the personal representative joins at the direction of the majority of the personal representatives, if that personal representative expressed his or her dissent in writing to any other personal representative at or before the time of such joinder.
  7. No personal representative shall be relieved of liability on his or her bond or otherwise by entering into any agreement under this section.

History

(1959, c. 1160; 1973, c. 1329, s. 3; 1977, c. 446, s. 1; 1991, c. 460, s. 1; 2005-192, s. 5; 2011-326, s. 5; 2011-344, s. 4.)

Editor's Note. - Session Laws 2011-326, s. 5(b), provides: "If Senate Bill 432, 2011 Regular Session, becomes law, this section is repealed on the effective date of that act [January 1, 2012]." Senate Bill 432 was enacted as 2011-344.

Prior to its repeal, Session Laws 2011-326, s. 5(a) had, among other things, substituted "than" for "that" in subdivision (d)(3). The bracketed "[than]" has been inserted in subdivision (d)(3) at the direction of the Revisor of Statutes to reflect the apparent legislative intent.

Effect of Amendments. - Session Laws 2005-192, s. 5, effective January 1, 2006, repealed subsections (a) and (c); added subsection (c1); in subdivision (d)(1), substituted "that personal representative's act" for "his act"; in subsection (e), substituted "Subject to subsections (b), (c1), and (d)" for "Subject to the provisions of subsections (b), (c) and (d)" in the first sentence, substituted "the personal representative joins" for "he joins" and substituted "that personal representative expressed his or her dissent" for "he expressed his dissent" in the second sentence; and inserted "or her" in subsection (f).

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subdivision (c1)(1), substituted "accounts for the estate" for "accounts for the trust"; and in subdivisions (c1)(5) and (c1)(8), substituted "estate" for "trust."

CASE NOTES

Cited in Trull v. McIntyre, 48 N.C. App. 599, 269 S.E.2d 308 (1980); Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863 (2013).


§ 28A-13-7. Powers and duties of successor personal representative.

A successor personal representative is one appointed to succeed a personal representative whose appointment has terminated by death, resignation or revocation. Unless a contrary intent clearly appears from the will, a successor personal representative has all the powers and duties, discretionary or otherwise, of the original personal representative.

History

(1973, c. 1329, s. 3.)

§ 28A-13-8. Powers and duties of administrator with will annexed.

When an administrator with the will annexed has been appointed, whether or not the administrator is succeeding a previously appointed personal representative, that administrator has the same powers and duties, discretionary or otherwise, as if the administrator had been named executor in the will, unless a contrary intent clearly appears from the will.

History

(C.C.P., s. 468; 1870-1, c. 93; Code, s. 1388; Rev., s. 319; C.S., s. 33; 1935, c. 386; 1949, c. 971; 1967, c. 41, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the administrator" for "he," or similar language throughout the section.

§ 28A-13-9. Powers of surviving personal representative.

When one or more of those nominated as coexecutors in a will is not appointed, or when the appointment of one or more joint personal representatives is terminated, every power granted to such joint personal representatives may be exercised by the surviving representative or representatives; provided that nothing to the contrary appears in the will of a testate decedent.

History

(C.C.P., s. 451; Code, s. 2164; Rev., s. 13; C.S., s. 16; 1931, c. 183; 1953, c. 78, s. 1; 1973, c. 1329, s. 3.)

CASE NOTES

Sale by One of Joint Executors. - If one of the joint executors fails to qualify, a sale of lands by the one qualifying is sufficient to pass the estate, without its appearing that the other either has renounced the executorship or refused to join in the sale. Wood v. Sparks, 18 N.C. 389 (1835), decided under prior law.


§ 28A-13-10. Liability of personal representative.

  1. Property of Estate. - A personal representative shall be liable for and chargeable in the personal representative's accounts with all of the estate of the decedent which comes into the personal representative's possession at any time, including all the income therefrom; but the personal representative shall not be liable for any debts due to the decedent or other assets of the estate which remain uncollected without the personal representative's fault. Except for commissions allowable by law, the personal representative shall not be entitled to any profits caused by an increase in values, nor be chargeable with loss by a decrease in value or destruction without the personal representative's fault, of any part of the estate.
  2. Property Not a Part of Estate. - A personal representative shall be chargeable in the personal representative's accounts with property not a part of the estate which comes into the personal representative's possession at any time and shall be liable to the persons entitled thereto if:
    1. The property was received under a duty imposed on the personal representative by law in the capacity of personal representative; or
    2. The personal representative has commingled such property with the assets of the estate.
  3. Breach of Duty. - A personal representative shall be liable and chargeable in the personal representative's accounts for any loss to the estate arising from the personal representative's embezzlement or commingling of the estate with other property; for loss to the estate through self-dealing; for any loss to the estate from wrongful acts or omissions of the personal representative's joint personal representatives which the personal representative could have prevented by the exercise of ordinary care; and for any loss to the estate arising from the personal representative's failure to act in good faith and with such care, foresight and diligence as an ordinarily reasonable and prudent person would act with the ordinarily reasonable and prudent person's own property under like circumstances. If the exercise of power concerning the estate is improper, the personal representative is liable for breach of fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust.

History

(1973, c. 1329, s. 3; 1975, c. 300, s. 4; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's" for "his," or similar language throughout the section; and substituted "prudent person would act with the ordinarily reasonable and prudent person's own property" for "prudent man would act with his own property" in the second sentence of subsection (c).

Legal Periodicals. - For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

CASE NOTES

Liability for Depreciation of Assets. - An executor, in performing those duties related to managing the estate's assets, acts as a trustee to beneficiaries of the estate. As such, the executor is liable for the depreciation of assets which an ordinarily prudent fiduciary would not have allowed to occur. Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801 (1987), rev'd on other grounds, 323 N.C. 146, 371 S.E.2d 483 (1988).

Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Cited in Tyson v. North Carolina Nat'l Bank, 305 N.C. 136, 286 S.E.2d 561 (1982).


ARTICLE 14. Notice to Creditors.

Sec.

§ 28A-14-1. Notice for claims.

  1. Every personal representative and collector after the granting of letters shall notify all persons, firms, and corporations having claims against the decedent to present their claims to the personal representative or collector, on or before a day to be named in the notice, which day must be at least three months from the day of the first publication or posting of the 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.
  2. 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 that 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), to the Division of Health Benefits of the Department of Health and Human Services. No notice, however, is required to be delivered or mailed with respect to any claim that is recognized as a valid claim by the personal representative or collector.
  3. 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 the failure.

History

(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; 2019-81, s. 15(a); 2021-88, s. 9(f).)

Cross References. - As to cost of publication, see G.S. 1-596.

Effect of Amendments. - Session Laws 2013-378, s. 3, effective October 1, 2013, added "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" at the end of the first sentence of subsection (b).

Session Laws 2019-81, s. 15(a), effective July 1, 2019, substituted "Division of Health Benefits" for "Division of Medical Assistance" in subsection (b).

Session Laws 2021-88, s. 9(f), effective July 22, 2021, rewrote the first sentence of subsection (a); rewrote subsection (b); and substituted "the failure" for "such failure" in the last sentence of subsection (c).

Legal Periodicals. - For article, "Notice to Creditors in Estate Proceedings: What Process Is Due?," see 63 N.C.L. Rev. 659 (1985).

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

Time of Presenting Claims. - Before distribution of the estate, it is the duty of the administrator to pay the debts of the estate, provided such debts are presented within 12 months (now three months) next after publication under this section. As against claims presented after that period he will not be chargeable with any distribution he may have made in good faith. Mallard v. Patterson, 108 N.C. 255, 13 S.E. 93 (1891).

Shareholders Not Entitled to Personal Notice. - Contrary to shareholders' argument, the record was clear that the executrix did not have knowledge of any unsatisfied claim against the testator or the estate, and the shareholders had settled and dismissed an earlier suit against testator without prejudice, and never served a second suit; the shareholders therefore were not entitled to personal notice. In re Estate of Mullins, 182 N.C. App. 667, 643 S.E.2d 599 (2007).

Husband of a decedent was not entitled to personal notice of the time limitation for filing claims against his wife's estate under G.S. 28A-14-1(b), because there was no evidence that the executors were on notice of any claims he had against the estate arising out of transfers the wife made to her accounts using a power of attorney, and he failed to file his claim within the time provided by G.S. 28A-19-3(a) following the general newspaper notice to creditors. Mileski v. McConville, 199 N.C. App. 267, 681 S.E.2d 515 (2009).

Action Following Tortfeasor's Death Not Time Barred. - Action filed on October 20, 2000, two days after qualification of deceased driver's personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52, where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff's cause of action survived his death, and thus, pursuant to G.S. 1-22, plaintiff was permitted to commence a cause of action against deceased's personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3, or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3. The personal representative's failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest "deadline" date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292 (2002).

Advertisement Essential to Bar Claims. - The mere lapse of time does not bar the creditors' claims against the estate. Only where the advertisement provided under this section has been made does the statute of limitation begin to run. Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1889). But see Morissey v. Hill, 142 N.C. 355, 55 S.E. 193 (1906), where it was held that this section was enacted more for the protection of the representative, and hence a claim would be barred independent of whether the advertisement provided by the section was published or not. To the same effect, see also Andres v. Powell, 97 N.C. 155, 2 S.E. 235 (1887).

Where the administrator neither avers nor proves that he gave the notice required by this section, the objection that the creditor has not shown that he ever presented his claim will not avail. Valentine v. Britton, 127 N.C. 57, 37 S.E. 74 (1900). See Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1889). But see Morissey v. Hill, 142 N.C. 355, 55 S.E. 193 (1906).

Notice Held Fatally Defective. - An executor's general notice to creditors published in a newspaper was fatally defective where it failed to name a day after which claims would be barred and failed to give notice that claims must be filed within six months (now three months) from the day of the first publication of the notice; therefore, the notice to creditors was ineffective to start the running of the statute of limitations of G.S. 28A-19-3(a) in bar of a claim against decedent's estate to recover for personal injuries received in an automobile accident. Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980).

Failure to Mail Or Deliver Notice. - Superior court properly entered a judgment for the sister of a decedent and ordered his co-executrixes to pay her the amount of a debt with interest because the decedent's holographic will made an indirect devise to his sister by directing that his funds were to be used to pay the debt owed by the sister to a third party, the co-executrixes did not mail or deliver a notice of creditors, the rejection of the creditor's claim filed by the sister and the statute of limitations applicable to such claim did not bar her claim as an heir or devisee to her respective share or interest in the decedent's estate, and inasmuch as the sister was not a creditor, any statute of limitations applicable to creditors did not apply to her. Jacobs v. Brewington, 258 N.C. App. 462, 811 S.E.2d 238 (2018).

Claims Against the Estate for Decedent's Fraud Barred. - Where plaintiff's claims were based on fraud, and one participant in the fraud was dead, two statutes were applicable to their action, G.S. 1-52(9) requiring a claim be filed within three years of the discovery of the fraud, and this section requiring that a claim be filed within six months after the personal representative of the decedent first published the notice to creditors. Since this section more specifically deals with when a claim may be filed against an estate, this statute controlled, and would bar a cause of action even if the action had been filed within three years of discovery. Liner v. DiCresce, 905 F. Supp. 280 (M.D.N.C. 1994).

For the purpose of the discovery rule delaying the running of a limitation period, a subtle yet distinct difference in meaning between the words "arise" and "accrue" becomes evident: a cause of action for fraud accrues when the fraud is discovered. Because a participant in fraud died more than four years before action was filed, any alleged fraud committed by him must have arisen more than four years earlier, during his lifetime, and the North Carolina non-claim statute barred any claims filed more than six months after final creditor's notice, though sounding in fraud. Liner v. DiCresce, 905 F. Supp. 280 (M.D.N.C. 1994).

Cited in Carethers v. Blair, 53 N.C. App. 233, 280 S.E.2d 467 (1981); Lassiter v. Faison, 111 N.C. App. 206, 432 S.E.2d 373 (1993); Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002); State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010); Boyd v. Sandling, 210 N.C. App. 455, 708 S.E.2d 311 (2011).


§ 28A-14-1.1. Validation of certain notices.

  1. Any notice to creditors published or posted under G.S. 28A-14-1 which did not, in the advertisement, name the day after which claims could not be presented is validated.
  2. This section applies to all notices published and posted between October 1, 1975, and January 1, 1991, except that it does not affect any pending litigation or any litigation instituted within 90 days of January 1, 1991.

History

(1981, c. 96, ss. 1, 2; 1987, c. 277, s. 8; 1989, c. 390, s. 8; 1991, c. 489, s. 8.)

§ 28A-14-2. Proof of notice.

A copy of the notice directed by G.S. 28A-14-1(a) to be posted or published, together with an affidavit or affidavits of one of the persons authorized by G.S. 1-600(a) to make affidavits to the effect that such notice was posted or published in accordance with G.S. 28A-14-1(a), and an affidavit of the personal representative or collector, or the attorney for the personal representative or collector, to the effect that a copy of the notice was personally delivered or mailed to each creditor entitled to notice in accordance with G.S. 28A-14-1(b) shall be filed in the office of the clerk of superior court by the personal representative or collector at the time the inventory required by G.S. 28A-20-1 is filed. The copy of the notice, together with the affidavit or affidavits, shall be deemed a record of the court and a copy thereof, duly certified by the clerk of superior court, shall be received as prima facie evidence of the fact of publication or mailing in all the courts of this State.

History

(1868-9, c. 113, s. 31; Code, s. 1423; Rev., s. 40; C.S., s. 46; 1951, c. 1005, s. 3; 1961, c. 26, s. 2; 1973, c. 1329, s. 3; 1987 (Reg. Sess., 1988), c. 1077, s. 2; 1989, c. 378, s. 2.)

CASE NOTES

Necessity of Proof. - When an administrator pleads to a bill the provision of law which prescribes the time of bringing suits against him, he is bound to show by proof that he advertised as required by the statute. Gilliam v. Willey, 54 N.C. 128 (1853), decided under prior law; Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980).


§ 28A-14-3. Personal notice to creditor.

The personal representative or collector may cause the notice to be personally served on any creditor.

History

(1868-9, c. 113, s. 32; Code, s. 1424; 1885, c. 96; Rev., s. 41; C.S., s. 47; 1961, c. 741, s. 2; 1973, c. 1329, s. 3; 1977, c. 446, s. 1; c. 798; 1979, c. 509, s. 2.)

CASE NOTES

Applied in Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982).

Cited in Anderson v. Gooding, 43 N.C. App. 611, 259 S.E.2d 398 (1979); Carethers v. Blair, 53 N.C. App. 233, 280 S.E.2d 467 (1981).


ARTICLE 15. Assets; Discovery of Assets.

Sec.

§ 28A-15-1. Assets of the estate generally.

  1. All of the real and personal property, both legal and equitable, of a decedent shall be assets available for the discharge of debts and other claims against the decedent's estate in the absence of a statute expressly excluding any such property. Provided that before real property is selected the personal representative must determine that such selection is in the best interest of the administration of the estate.
  2. In determining what property of the estate shall be sold, leased, pledged, mortgaged or exchanged for the payment of the debts of the decedent and other claims against the decedent's estate, the personal representative shall select the assets which in the personal representative's judgment are calculated to promote the best interests of the estate. In the selection of assets for this purpose, there shall be no necessary distinction between real and personal property, absent any contrary provision in the will.
  3. If it shall be determined by the personal representative that it is in the best interest of the administration of the estate to sell, lease, or mortgage any real estate or interest therein to obtain money for the payment of debts and other claims against the decedent's estate, the personal representative shall institute a special proceeding before the clerk of superior court for such purpose pursuant to Article 17 of this Chapter, except that no such proceeding shall be required for a sale made pursuant to authority given by will. A general provision granting authority to the personal representative to sell the testator's real property, or incorporation by reference of the provisions of G.S. 32-27(2) shall be sufficient to eliminate the necessity for a proceeding under Article 17. If a special proceeding has been instituted by the personal representative pursuant to G.S. 28A-13-3(c), the personal representative may petition for sale, lease, or mortgage of any real property as a part of that proceeding and is not required to institute a separate special proceeding.
  4. The crops of every deceased person, remaining ungathered at the person's death, shall, in all cases, belong to the personal representative or collector, as part of the personal assets of the decedent's estate; and shall not pass to the devisee by virtue of any devise of the land, unless such intent be manifest and specified in the will.

History

(1868-9, c. 113, ss. 14, 15; Code, ss. 1406, 1407; Rev., ss. 45, 47; C.S., ss. 52, 54; 1973, c. 1329, s. 3; 1975, c. 300, s. 5; 1985, c. 426; 2001-413, s. 2.1; 2002-159, s. 9; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsections (a) and (b), substituted "the decedent's estate" for "his estate"; in subsection (b) substituted "the personal representative's" for "his"; and in subsection (d) substituted "the person's" for "his."

Legal Periodicals. - See legislative survey, 21 Campbell L. Rev. 323 (1999).

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

All the chattels of an intestate are assets, if the administrator by reasonable diligence might have possessed himself of them. Gray v. Swain, 9 N.C. 15 (1822).

Lands as Assets. - Land is not an asset until it is sold and the proceeds received by the personal representative. Fike v. Green, 64 N.C. 665 (1870); Edenton v. Wool, 65 N.C. 379 (1871); Hawkins v. Carpenter, 88 N.C. 403 (1883); Wilson v. Bynum, 92 N.C. 717 (1885).

Automobile Liability Policies as Assets. - Automobile liability policies are not expressly excluded by any statute from being included as an asset in an a estate; they are therefore resources available for the satisfaction of claims against the estate arising from decedent's ownership and operation of an automobile while he was alive. Carethers v. Blair, 53 N.C. App. 233, 280 S.E.2d 467 (1981).

The direction from the testator that certain property in the estate not be applied to payment of estate liabilities cannot operate to prevent payment of debts, taxes and costs of administration which are justly owed. Combs v. Eller, 30 N.C. App. 30, 226 S.E.2d 197 (1976).

In the determination of whether a deed of trust conveyed by the executor is a debt of the estate, the burden is on the party asserting the validity of the debt as an obligation of the estate to show that the executor acted within his authority as executor. Hunter v. Newsom, 121 N.C. App. 564, 468 S.E.2d 802 (1996).

Rents Liable for Debts. - The rents on devised land may be subjected by the personal representative to the payment of the debts of deceased. Shell v. West, 130 N.C. 171, 41 S.E. 65 (1902).

Rent Accruing Before and After Death. - Rent due for the occupation of an equitable estate in land, in the lifetime of the cestui que trust, goes to his personal representative, that accruing after his death goes to his heirs. Fleming v. Chunn, 57 N.C. 422 (1859); Rogers v. McKenzie, 65 N.C. 218 (1871).

Warrant for Pension Is Not Asset. - A warrant for a pension issued after the death of the pensioner does not become a part of his assets, but must be returned to the State for cancellation. In re Smith, 130 N.C. 638, 41 S.E. 802 (1902).

Recovery for Death by Wrongful Act Not Asset. - The right to recover damages for wrongful death rests entirely on statute, and when a recovery is had therefor it is not a part of the personal assets of the deceased. Hood v. American Tel. & Tel. Co., 162 N.C. 92, 77 S.E. 1094 (1913).

Damages for wrongful death when recovered are not assets of the estate available to creditors. Hines v. Foundation Co., 196 N.C. 322, 145 S.E. 612 (1928).

Ownership of Note upon Death of Joint Payee. - Promissory note payable only to testator and his wife did not become part of testator's estate but became the sole property of testator's wife upon his death; therefore, son would not inherit. Miller v. Miller, 117 N.C. App. 71, 450 S.E.2d 15 (1994).

Homestead Exemptions. - The personal exemptions in N.C. Const., Art. X exist only during the life of the "homesteader," and after his death pass to his personal representative, to be disposed of in due course of administration. Johnson v. Cross, 66 N.C. 167 (1872).

The principle of subsection (d) is declaratory of the common law. See Flynt v. Conrad, 61 N.C. 190 (1867).

Subsection (d) does not control the title to crops not planted at the time of the death of the testator or devisor. Manifestly, in the forum of common sense, a crop could not be a crop until the seeds were in the soil. The statute uses the expression, "crops . . . remaining ungathered at his death," etc. An ungathered crop is certainly not an unplanted crop. Carr v. Carr, 208 N.C. 246, 180 S.E. 82 (1935).

Upon the death of a cropper his personal representative is entitled to his share of the crop. Parker v. Brown, 136 N.C. 280, 48 S.E. 657 (1904). See Thomas v. Lines, 83 N.C. 191 (1880).

Mortgagee's Lien Extinguished. - Purchasers of land from a decedent's estate took title free and clear of a mortgagee's lien because (1) a qualified executrix followed statutory procedures to sell the land, (2) an order of sale stating the order's purpose was to liquidate assets disposed of the mortgagee's deed of trust, and (3) the mortgagee's lien followed sale proceeds. Nationstar Mortg. LLC v. Curry, 262 N.C. App. 218, 822 S.E.2d 122 (2018).

Applied in James v. James, 58 N.C. App. 292, 293 S.E.2d 655 (1982); Chamberlain v. Beam, 63 N.C. App. 377, 304 S.E.2d 770 (1983).

Cited in Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988); Sisson v. Campbell Univ., Inc., 688 F. Supp. 1064 (E.D.N.C. 1988); Chamblee v. Espy, 100 F.3d 15 (4th Cir. 1996).


§ 28A-15-2. Title and possession of property.

  1. Personal Property. - Subsequent to the death of the decedent and prior to the appointment and qualification of the personal representative or collector, the title and the right of possession of personal property of the decedent is vested in the decedent's heirs; but upon the appointment and qualification of the personal representative or collector, the heirs shall be divested of such title and right of possession which shall be vested in the personal representative or collector relating back to the time of the decedent's death for purposes of administering the estate of the decedent. But, if in the opinion of the personal representative, the personal representative's possession, custody and control of any item of personal property is not necessary for purposes of administration, such possession, custody and control may be left with or surrendered to the heir or devisee presumptively entitled thereto.
  2. Real Property. - The title to real property of a decedent is vested in the decedent's heirs as of the time of  the decedent's death; but the title to real property of a decedent devised under a valid probated will becomes vested in the devisees and shall relate back to the decedent's death, subject to the provisions of G.S. 31-39.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the decedent's" for "his" throughout the section; and in the last sentence of subsection (a) substituted "the personal representative's possession" for "his possession."

CASE NOTES

Vesting of Real Property in Heirs. - When a property owner dies intestate, the title to his real property vests immediately in his heirs. The decedent's personal representative has the power, upon petition to the clerk of superior court, to sell decedent's real property for payments of debts and other claims against the decedent's estate, but the proceeding is an adversary one, requiring that the heirs be made parties. If an heir is not joined, the order of sale is void as to him. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Vesting of Property In Personal Representative. - Statute provided that title in the driveway corridor became vested in the grantor's personal representative at the time of the grantor's death, not that the beneficiaries had any right to transfer the driveway corridor to the neighbor, and that quitclaim deed was without legal effect. Simmons v. Waddell, 241 N.C. App. 512, 775 S.E.2d 661 (2015).

Heirs of wife's deceased husband were necessary parties to equitable distribution action in which husband's administrator had been substituted as defendant, and they were properly added as parties defendant. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Sale of Land under Discretionary Sale Clause in Will Is Invalid. - Since land is not a part of the estate, a sale by the executors for the reason that it would facilitate the settlement of the special proceeding for partition was not a valid exercise of a power of sale under a will, giving them power to sell such property of the testator as they in their discretion may determine proper. James v. James, 58 N.C. App. 371, 293 S.E.2d 655, cert. denied, 306 N.C. 742, 295 S.E.2d 759 (1982).

Sale Voidable. - Executrix was given the authority to sell the real property and thus, based on the will, she had the power to sell the farm and equally divide the proceeds; consequently, the sale of the farm was not void, G.S. 28A-15-2(b). However, because the executrix, sold the farm to her limited liability company then later transferred it to herself individually, the sale was voidable. Collier v. Bryant, 216 N.C. App. 419, 719 S.E.2d 70 (2011).

Cited in Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697 (1980); Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988); State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000); State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).


§ 28A-15-3. Nonexoneration of encumbered property.

When real or personal property subject to any lien or security interest, except judgment liens, is specifically devised, the devisee takes the property subject to the encumbrance and without a right to have other assets of the decedent applied to discharge the secured obligation, unless an express provision of the will confers such right of exoneration. A general testamentary direction to pay the debts of the decedent is not sufficient to confer such right.

History

(1973, c. 1329, s. 3.)

Legal Periodicals. - For article on installment land contracts in North Carolina, see 3 Campbell L. Rev. 29 (1981).

§ 28A-15-4. Encumbered assets.

When any assets of the estate are encumbered by mortgage, pledge, lien or other security interest, the personal representative may pay the underlying debt secured by the encumbrance or any part of the underlying debt, renew or extend any obligation secured by the encumbrance, or convey or transfer the encumbered assets to the creditor in satisfaction of the underlying debt, in whole or in part, whether or not the holder of the encumbrance has filed a claim, if it appears to be for the best interest of the estate; provided that payment of an underlying debt shall not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration by express provisions of the will.

History

(1973, c. 1329, s. 3; 2011-344, s. 4; 2019-113, s. 1.)

Editor's Note. - Session Laws 2019-113, s. 7, made the amendments to this section by Session Laws 2019-113, s. 1, effective July 11, 2019, and applicable to decedents dying, estates filed, and pleadings filed on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the creditor's lien" for "his lien" near the middle of the section.

Session Laws 2019-113, s. 1, substituted "underlying debt secured by the encumbrance or any part of the underlying debt" for "encumbrance or any part thereof" near the beginning, "underlying debt" for "creditor's lien" near the middle, and "an underlying debt" for "an encumbrance" near the end. For effective date and applicability, see Editor's note.

§ 28A-15-5. Order in which assets appropriated; abatement.

  1. General Rules. - In the absence of testamentary indication as to the order of abatement, or some other controlling statute, shares of devisees and of heirs abate, without any preference or priority as between real and personal property, in the following order:
    1. Property not disposed of by the will;
    2. Residuary devises;
    3. General devises;
    4. Specific devises.
  2. Abatement; Sales; Contribution. - When property which has been specifically devised is sold, leased, or mortgaged, or a security therein is created, by the personal representative, abatement shall be achieved by ratable adjustments in, or contributions from other interest in the remaining assets. The clerk of superior court shall, at the time of the hearing on the petition for final distribution, determine the amounts of the respective contributions and whether the same shall be made before distribution or shall constitute a lien on specific property which is distributed.

For purposes of abatement, a demonstrative devise of money or property payable out of or charged on a particular fund or other property is treated as a specific devise; but if the particular fund or property out of which the demonstrative devise is to be paid is nonexistent or insufficient at the death of the testator, the deficiency is to be payable out of the general estate of the decedent and is to be regarded as a general devise and must abate pro rata with other general devises. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received, had full distribution of the property been made in accordance with the terms of the will.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Bequest Not Adeemed by Sale During Testator's Incompetency. - Where the trial court found that testator specifically bequeathed his interest in livestock to his daughter, and subsequently became incompetent and did not regain his competency at any time before his death, and where his interest in livestock was sold by his trustees for $22,543.48, and those funds were included in the assets coming into the hands of the executor, and moreover, where there were sufficient assets in the estate to satisfy all of its obligations as well as all general, specific and demonstrative devises without any abatement of those devises, these findings were sufficient to support the court's conclusion that testator's specific testamentary gift of his interest in livestock to his daughter was not adeemed by the trustee's sale thereof during testator's incompetency before his death. In re Estate of Warren, 81 N.C. App. 634, 344 S.E.2d 795 (1986).

Applied in Chamberlain v. Beam, 63 N.C. App. 377, 304 S.E.2d 770 (1983); Creekmore v. Creekmore, 126 N.C. App. 252, 485 S.E.2d 68 (1997).

Cited in Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538 (1979).


§ 28A-15-6. Federal income tax refunds - joint returns.

Upon the determination by the United States Treasury Department of an overpayment of income tax by a married couple filing a joint federal income tax return, one of whom has died since the filing of such return or where a joint federal income tax return is filed on behalf of a husband and wife, one of whom has died prior to the filing of the return, any refund of the tax by reason of such overpayment, if not in excess of five hundred dollars ($500.00), shall be the sole and separate property of the surviving spouse. In the event that both spouses are dead at the time such overpayment is determined, such refund, if not in excess of five hundred dollars ($500.00), shall be the sole and separate property of the estate of the spouse who died last and may be paid directly by the Treasury Department to the executor or administrator of such estate, or to the person entitled to the possession of the assets of a small estate pursuant to the provisions of Article 25 of this Chapter.

History

(1955, c. 720; 1957, c. 986; 1973, c. 1329, s. 3.)

CASE NOTES

Applied in Brantley v. Watson, 115 N.C. App. 393, 445 S.E.2d 53 (1994).


§ 28A-15-7. Federal income tax refunds - separate returns.

Upon the determination by the United States Treasury Department of an overpayment of income tax by any married person filing a separate return, any refund of the tax by reason of such overpayment, if not in excess of two hundred fifty dollars ($250.00), exclusive of interest, shall be the sole and separate property of the surviving spouse, and the United States Treasury Department may pay said sum directly to such surviving spouse, and such payment to the extent thereof shall operate as a complete acquittal and discharge of the United States Treasury Department.

History

(1961, c. 643; 1973, c. 1329, s. 3.)

§ 28A-15-8. State income tax returns.

Upon the determination by the Secretary of Revenue of North Carolina of an overpayment of income tax by any married person, any refund of the tax by reason of such overpayment, if not in excess of two hundred dollars ($200.00) exclusive of interest, shall be the sole and separate property of the surviving spouse, and said Secretary of Revenue may pay said sum directly to such surviving spouse, and such payment to the extent thereof shall operate as a complete acquittal and discharge of the Secretary of Revenue.

History

(1961, c. 735; 1973, c. 1329, s. 3.)

CASE NOTES

Deduction of Tax Refunds from Share of Estate Proper. - Order allowing an estate to deduct one-half of the federal income tax refund and a portion of the state income tax refund received by a widow from joint tax returns from the widow's share of the estate was proper. Bryant v. Bowers, 182 N.C. App. 338, 641 S.E.2d 855 (2007).


§ 28A-15-9. Excess funds.

If the amount of any refund exceeds the sums specified in G.S. 28A-15-6, 28A-15-7 or 28A-15-8, the sums specified therein and one half of any additional sums shall be the sole and separate property of the surviving spouse. The remaining one half of such additional sums shall be the property of the estate of the decedent spouse.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Deduction of Tax Refunds from Share of Estate Proper. - Order allowing an estate to deduct one-half of the federal income tax refund and a portion of the state income tax refund received by a widow from joint tax returns from the widow's share of the estate was proper. Bryant v. Bowers, 182 N.C. App. 338, 641 S.E.2d 855 (2007).

Applied in Brantley v. Watson, 115 N.C. App. 393, 445 S.E.2d 53 (1994).


§ 28A-15-9.1: Repealed by Session Laws 2011-326, s. 6, effective June 27, 2011.

History

(2003-295, s. 1; repealed by 2011-326, s. 6, effective June 27, 2011.)

Editor's Note. - Former G.S. 28A-15-9.1 pertained to Phase II payments.

§ 28A-15-10. Assets of decedent's estate for limited purposes.

  1. When needed to satisfy claims against a decedent's estate, assets may be acquired by a personal representative or collector from the following sources:
    1. Tentative trusts created by the decedent in savings accounts for other persons.
    2. Gifts causa mortis made by the decedent.
    3. Joint deposit accounts with right of survivorship created by decedent pursuant to the provisions of G.S. 41-2.1 or otherwise; and joint tenancies with right of survivorship created by decedent in corporate stocks or other investment securities.
    4. An interest in a security passing to a beneficiary pursuant to the provisions of Article 4 of Chapter 41 of the General Statutes.
  2. Where there are not sufficient personal and real assets of the decedent to satisfy all the debts and other claims against the decedent's estate, the personal representative shall have the right to sue for and recover any and all personal property or real property, or interest therein, which the decedent may in any manner have transferred or conveyed with intent to hinder, delay, or defraud the decedent's creditors, and any personal property or real property, or interest therein, so recovered shall constitute assets of the estate in the hands of the personal representative for the payment of debts and other claims against the estate of the decedent. But if the alienee has sold the personal property or real property, or interest therein, so fraudulently acquired by the alienee from the decedent to a bona fide purchaser for value without notice of the fraud, then such personal property or real property, or interest therein, may not be recovered from such bona fide purchaser but the fraudulent alienee shall be liable to the personal representative for the value of the personal property or real property, or interest therein, so acquired and disposed of to a bona fide purchaser. If the whole recovery from the fraudulent alienee shall not be necessary for the payment of the debts and other claims against the estate of the decedent, the surplus shall be returned to such fraudulent alienee or the fraudulent alienee's assigns.
  3. Where there has been a recovery in an action for wrongful death, the same shall not be applied to the payment of debts and other claims against the estate of decedent or devises, except as to the payment of reasonable burial and funeral expenses and reasonable hospital and medical expenses incident to the injury resulting in death and as limited and provided in G.S. 28-18-2 [G.S. 28A-18-2].

Such assets shall be acquired solely for the purpose of satisfying such claims, however, and shall not be available for distribution to heirs or devisees.

History

(1973, c. 1329, s. 3; 2005-411, s. 2; 2011-344, s. 4.)

Cross References. - As to real property recovered from fraudulent alienee being subject to sale, see G.S. 28A-17-5.

As to joint bank accounts, see G.S. 53C-6-6.

As to payable on death accounts, see G.S. 53C-6-7.

Editor's Note. - This section was amended by Session Laws 2011-344, s. 4. The bracketed reference was inserted in subsection (c) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-411, s. 2, effective October 1, 2005, added subdivision (a)(4); and made minor punctuation changes.

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (b), substituted "the decedent's" for "his" in two places, "the alienee" for "him" and "the fraudulent alienee's assigns" for "his assigns" at the end.

CASE NOTES

Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Cited in In re Estate of Francis, 327 N.C. 101, 394 S.E.2d 150 (1990).


§ 28A-15-11. Debt due from personal representative not discharged by appointment.

The appointment of any person as personal representative does not discharge any debt or demand due from such person to the decedent.

History

(1868-9, c. 113, s. 40; Code, s. 1431; Rev., s. 51; C.S., s. 58; 1973, c. 1329, s. 3.)

CASE NOTES

Section Applies to Executor Whether He Acts or Not. - This section applies to an executor who acts as well as to one who does not act under the appointment. Moore v. Miller, 62 N.C. 359 (1868), decided under prior law.


§ 28A-15-12. Actions to recover property of decedent.

  1. Repealed by Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.
  2. A personal representative or collector shall have the right to bring an action to sue for and recover any property of any kind belonging to the estate of the personal representative's decedent, by action filed in the Superior Court Division of the General Court of Justice and shall be entitled to such other provisional remedies as provided for under Subchapter 13 of Chapter 1 of the General Statutes.
  3. Repealed by Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.
  4. A personal representative, collector, or any interested person shall have the right to bring an estate proceeding seeking the examination of any persons reasonably believed to be in possession of property of any kind belonging to the estate of the decedent including a demand for the recovery of such property. An estate proceeding brought under the provisions of this subsection shall be instituted by the filing of a verified petition and shall be conducted in accordance with the provisions of Article 2 of this Chapter. The court may enter orders requiring the examination of persons consistent with this subsection and, if the court determines that a person is in possession of property of the estate of the decedent, shall have the authority to order recovery of that property. Orders issued by the clerk of superior court shall be enforceable by proceedings as for contempt of court.
  5. The party against whom the final judgment is rendered shall be adjudged to pay the costs of the proceedings hereunder.
  6. The remedies provided in this section shall not be exclusive, but shall be in addition to any remedies which are now or may hereafter be provided.

History

(1937, c. 209, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

CASE NOTES

This section provides a quick and immediate remedy by which a personal representative may examine any party if he has reasonable grounds to believe a person, firm or corporation has possession of any property belonging to the estate. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971), decided under prior law.

Such remedy is in addition to other remedies. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971), decided under prior law.

Remedy is for the purpose of discovery and recovery without waiting for the slower process of a suit in the superior court. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971), decided under prior law.

Clerk may force delivery or attach for contempt for failure to deliver. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971), decided under prior law.

One who takes and refuses to account to the personal representative becomes a trustee for the benefit of the estate and subject to the penalties provided for breach of trust. State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971), decided under prior law.

Attorneys' fees were recoverable by administrators of decedent's estate, as successful parties, in suit by administrators to compel decedent's son to provide an accounting of certain estate property. In re Estate of Katsos, 84 N.C. App. 682, 353 S.E.2d 677, cert. denied, 320 N.C. 169, 358 S.E.2d 52 (1987).

Cited in Sisson v. Campbell Univ., Inc., 688 F. Supp. 1064 (E.D.N.C. 1988).

§ 28A-15-13. Opening and inventory of decedent's safe-deposit box.

  1. Definitions. - The following definitions apply to this section:
    1. Institution. - Any entity or person having supervision or possession of a safe-deposit box to which a decedent had access.
    2. Deputy. - A person appointed in writing by a lessee or cotenant of a safe-deposit box as having right of access to the safe-deposit box without further authority or permission of the lessee or cotenant, in a manner and form designated by the institution.
    3. Letter of authority. - Letters of administration, letters testamentary, an affidavit of collection of personal property, an order of summary administration, or a letter directed to the institution designating a person entitled to receive the contents of a safe-deposit box to which the decedent had access. The letter of authority must be signed by the clerk of superior court or by the clerk's representative.
    4. Qualified person. - A person possessing a letter of authority or a person named as a deputy, lessee or cotenant of the safe-deposit box to which the decedent had access.
  2. Presence of Clerk Required. - Any safe-deposit box to which a decedent had access shall be sealed by the institution having supervision or possession of the box. Except as provided in subsection (c) of this section, the presence of the clerk of superior court of the county where the safe-deposit box is located or the presence of the clerk's representative is required before the box may be opened. The clerk or the clerk's representative shall open the safe-deposit box in the presence of the person possessing a key to the box and a representative of the institution having supervision or possession of the box. The clerk shall make an inventory of the contents of the box and furnish a copy to the institution and to the person possessing a key to the box.
  3. Presence of Clerk Not Required. - The presence of the clerk of superior court or the clerk's representative is not required when the person requesting the opening of the decedent's safe-deposit box is a qualified person. In that event, the qualified person shall make an inventory of the contents of the box and furnish a copy to the institution and to the person possessing a key to the box if that person is someone other than the qualified person.
  4. Testamentary Instrument in Box. - If the safe-deposit box contains any writing that appears to be a will, codicil, or any other instrument of a testamentary nature, then the clerk of superior court or the qualified person shall file the instrument in the office of the clerk of superior court.
  5. Release of Contents. - Except as provided in subsection (d) for testamentary instruments, the institution shall not release any contents of the safe-deposit box to anyone other than a qualified person.
  6. No Tax Waiver Required. - No tax waiver is required for the release of the contents of the decedent's safe-deposit box.

History

(1998-212, s. 16.14(a); 2003-255, s. 1.)

Cross References. - As to deposits by minors, see G.S. 53C-6-4.

ARTICLE 16. Sales or Leases of Personal Property.

Sec.

§ 28A-16-1. Sales or leases without court order.

  1. A personal representative has the power to sell, at either a public or private sale, or to lease, personal property of the decedent without a court order.
  2. A personal representative who sells or leases personal property of the decedent without a court order is not required to file a special report or have the transaction confirmed by the clerk of superior court, or to follow any of the procedure set forth in Article 29A of Chapter 1 of the General Statutes, entitled "Judicial Sales," but shall include in the personal representative's next account, either annual or final, a record of the receipts and disbursements incident to the transaction.

History

(1868-9, c. 113, s. 16; Code, s. 1408; Rev., s. 62; C.S., s. 66; 1973, c. 1329, s. 3; 1975, c. 300, s. 6; 2011-344, s. 4.)

Cross References. - As to incompetency and guardianship, see G.S. 35A-1101 et seq.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's next account" for "his next account" in subsection (b).

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Purchaser Not Responsible for Application of Proceeds. - A purchaser of personalty from a personal representative does not, by virtue of the latter's absolute power to dispose of the personalty, have to see to the proper application of the purchase price. This is so although decedent has created a particular separate fund for the payment of his debts. But if the purchase be tainted with collusion, the purchaser will be held responsible for the proper application of the proceeds. Tyrrell v. Morris, 21 N.C. 559 (1837); Gray v. Armistead, 41 N.C. 74 (1849); Bradshaw v. Simpson, 41 N.C. 243 (1849); Cox v. First Nat'l Bank, 119 N.C. 302, 26 S.E. 22 (1896).

Purchaser gets good title, unless he purchased mala fide and for the purpose of devastavit. Wilson v. Doster, 42 N.C. 231 (1851); Polk v. Robinson, 42 N.C. 235 (1851).

Where he receives the property in payment of the fiduciary's personal debt, the transaction is presumptively mala fide. Latham v. Moore, 59 N.C. 167 (1860).


§ 28A-16-2. Sales or leases by court order.

  1. All sales or leases of personal property of the decedent by a collector shall be made only upon order obtained, by motion, from the clerk of superior court.
  2. A personal representative may, if the personal representative so desires, request the clerk of superior court to issue to the personal representative an order to sell or lease personal property of the decedent.
  3. Sales or leases of personal property of the decedent held pursuant to court order shall be conducted as provided in Article 29A of Chapter 1 of the General Statutes, entitled "Judicial Sales."
  4. A personal representative may, for the personal representative's own benefit, purchase or lease personal property belonging to the decedent at a public sale conducted under an order of the clerk of superior court, if the transaction is reported to the clerk of superior court and confirmed by the clerk of superior court.

History

(1868-9, c. 113, s. 17; Code, s. 1409; Rev., s. 61; C.S., s. 67; 1949, c. 719, s. 2; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's" for "his," or similar language" throughout the section; and substituted "by the clerk of superior court" for "by him" in subsection (d).

§ 28A-16-3. Sales of household furnishings.

If the decedent is survived by a spouse, no sale or lease shall be made of the household furnishings in the usual dwelling house occupied by the surviving spouse at the time of the death of the deceased spouse, if such dwelling house was owned by the deceased spouse at the time of his or her death, until the expiration of the time limits set forth in G.S. 29-30(c) for the filing by the surviving spouse of an election in regard to the property of the decedent.

History

(1973, c. 1329, s. 3.)

ARTICLE 17. Sales, Leases or Mortgages of Real Property.

Sec.

§ 28A-17-1. Sales of real property.

Pursuant to authority contained in G.S. 28A-15-1 the personal representative may, at any time, apply to the clerk of superior court of the county where the decedent's real property or some part thereof is situated, by petition, to sell such real property for the payment of debts and other claims against the decedent's estate.

History

(1868-9, c. 113, s. 42; Code, s. 1436; Rev., s. 68, C.S., s. 74; 1923, c. 55; 1935, c. 43; 1937, c. 70; 1943, c. 637; 1949, c. 719, s. 2; 1955, c. 302, s. 1; 1959, c. 879, s. 7; 1963, c. 291, s. 1; 1973, c. 1329, s. 3.)

Legal Periodicals. - For article, "A Practitioner's Guide to When Real Estate Becomes a Security," see 9 Elon L. Rev. 391 (2017).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Proceeding to sell land under this section is a special proceeding before the clerk, who has original and exclusive jurisdiction of the matter. Baker v. Carter, 127 N.C. 92, 37 S.E. 81 (1900); Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620 (1982).

Unless Matter Involves Equities Over Which Superior Court Has Jurisdiction. - If equities are involved in the case upon which the superior court acquires jurisdiction of a part, it will determine the whole matter. Baker v. Carter, 127 N.C. 92, 37 S.E. 81 (1900); Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620 (1982).

Bill by United States to Subject Land to Payment of Judgment. - The federal district court had jurisdiction of a bill in equity by the United States to subject to payment of a judgment land situated in this State which had descended to the heirs of the judgment debtor, there being no personal assets. United States v. Minor, 254 F. 57 (4th Cir. 1918).

Presumption of Regularity. - The regularity of the proceedings under this section will be presumed. Wadford v. Davis, 192 N.C. 484, 135 S.E. 353 (1926).

Vesting of Real Property in Heirs. - When a property owner dies intestate, the title to his real property vests immediately in his heirs. The decedent's personal representative has the power, upon petition to the clerk of superior court, to sell decedent's real property for payments of debts and other claims against the decedent's estate, but the proceeding is an adversary one, requiring that the heirs be made parties. If an heir is not joined, the order of sale is void as to him. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Who May Sell. - The personal representative is the proper party to sell the homestead of deceased for distribution. Tarboro v. Pender, 153 N.C. 427, 69 S.E. 425 (1910).

Purchasers of land from a decedent's estate took title free and clear of a mortgagee's lien because (1) a qualified executrix followed statutory procedures to sell the land, (2) an order of sale stating the order's purpose was to liquidate assets disposed of the mortgagee's deed of trust, and (3) the mortgagee's lien followed sale proceeds. Nationstar Mortg. LLC v. Curry, 262 N.C. App. 218, 822 S.E.2d 122 (2018).

Nature of Representative's Authority. - The authority of the representative under this section is a naked power without title or interest in the estate. He is a mere agent of the court. Floyd v. Herring, 64 N.C. 409 (1870).

Representative Could Be Compelled to Sell under Former Statute. - See Pelletier v. Saunders, 67 N.C. 261 (1872); Wilson v. Bynum, 92 N.C. 717 (1885); Clement v. Cozart, 109 N.C. 173, 13 S.E. 862 (1891); Lee v. McKoy, 118 N.C. 518, 24 S.E. 210 (1896); Yarborough v. Moore, 151 N.C. 116, 65 S.E. 763 (1909); Hobbs v. Cashwell, 152 N.C. 183, 67 S.E. 495 (1910); Flynn v. Rumley, 212 N.C. 25, 192 S.E. 868 (1937).

Amount of Realty Which May Be Sold. - This section authorizing the sale of the lands of a decedent is in derogation of the common law, and hence the courts will not deny to an administrator the discretion of selling less land than is ordered to be sold, if necessity should not arise for such sale; and, conversely, the administrator will be allowed to continue to sell lands embraced in the license so long as the necessity to raise assets exists. Sledge v. Elliott, 116 N.C. 712, 21 S.E. 797 (1895).

"At Any Time." - The phrase "at any time," which appeared in the first sentence of a former statute, presupposed an application without undue delay. Pelletier v. Saunders, 67 N.C. 261 (1872); Clement v. Cozart, 109 N.C. 173, 13 S.E. 862 (1891); Creech v. Wilder, 212 N.C. 162, 193 S.E. 281 (1937).

If personalty has been wasted by the representative, his successor must first resort to his bond before proceeding against the lands. Lilly v. Wooley, 94 N.C. 412 (1886); Clement v. Cozart, 107 N.C. 695, 12 S.E. 254 (1890).

But this does not apply where representative is insolvent, his bond lost, and sureties unknown. Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889).

Lands Not Assets Until Sold. - Lands are not assets for the payment of the debts until they are sold and the proceeds received by the administrator. Wilson v. Bynum, 92 N.C. 717 (1885).

The heirs should be given the opportunity to resist and prevent the land from being applied to the payment of a debt which they allege was wrongfully obtained. Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620 (1982).

Claimant of Sole Seizin May Have Claim Adjudicated and Pay Debts to Prevent Sale. - While under this section an administrator is entitled to sell lands of the deceased to make assets to pay debts of the estate, when a person claims sole seizin under a contract to devise as against the heirs of intestate, such person is entitled to adjudication of her claim of sole seizin before a sale of the property to make assets is ordered, since she may elect to discharge the debts of the estate and the costs of administration to prevent a sale of the lands. Chambers v. Byers, 214 N.C. 373, 199 S.E. 398 (1938).

Creditor Attacking Debt as Fraudulent. - A judgment creditor of a devisee desiring to attack a debt set forth in the petition to sell land as being fraudulent must do so in the same proceedings, and not by independent action. Wadford v. Davis, 192 N.C. 484, 135 S.E. 353 (1926).

Homestead of a minor child of a testator cannot be sold during the minority of such child. Bruton v. McRea, 125 N.C. 206, 34 S.E. 397 (1899). See Hinsdale v. Williams, 75 N.C. 430 (1876).

Child who was made a party must have claimed homestead rights, otherwise he cannot subsequently claim as against the purchaser of the land. Dickens v. Long, 112 N.C. 311, 17 S.E. 150 (1893).

Allotment of Dower in Lands in Another County Invalid. - Deceased died seized of lands lying in two counties, and an administrator, appointed in the county of his residence, instituted proceedings in the other county to sell lands to make assets. The widow appeared therein asking that the lands be sold subject to dower and averring that she would later institute proceedings for the allotment of dower. Upon order of the clerk that the widow's dower be allotted and that the remaining lands be sold to make assets, a sheriff and jury from that county went into the county of deceased's residence and allotted dower by metes and bounds. It was held that the allotment was invalid, that the clerk of the other county was without authority to enter the order for the allotment of dower notwithstanding he had jurisdiction of the proceedings to sell lands to make assets, and might have ordered the lands sold subject to dower, and that the only provisions of this section giving the clerk jurisdiction in regard to dower in lands outside his county was where the widow consents that the lands be sold clear of dower and that a certain part of the proceeds of sale be set apart to her in commutation of dower. High v. Pearce, 220 N.C. 266, 17 S.E.2d 108 (1941).

Converting into Creditor's Suit. - When proceedings for the sale of land are instituted under this section by the representative, they cannot be converted into a creditor's suit. Brittain v. Dickson, 111 N.C. 529, 16 S.E. 326 (1892).

Effect of Judgment Quando. - See Wilson v. Bynum, 92 N.C. 717 (1885).

Cited in Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697 (1980); State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000); Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).

II. PRACTICE AND PROCEDURE.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Proper Parties. - In proceedings to sell land, heirs and devisees are necessary parties. Person v. Montgomery, 120 N.C. 111, 26 S.E. 645 (1897).

Sale Though Parties Not in Esse. - The application for sale may be made notwithstanding the existence of devises to parties not in esse. Carraway v. Lassiter, 139 N.C. 145, 51 S.E. 968 (1905).

Heirs of wife's deceased husband were necessary parties to equitable distribution action in which husband's administrator had been substituted as defendant, and they were properly added as parties defendant. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Notice to Creditors Unnecessary. - No notice to creditors is required to be given under this section. Thompson v. Cox, 53 N.C. 311 (1860).

Venue. - The proper venue to make the application provided by this section is in the county where the land or some part thereof is situated. Ellis v. Adderton, 88 N.C. 472 (1883).

It is in the county where the land or some part thereof lies, and not in the county where the decedent was domiciled and administration granted, that the application for sale must be filed, though formerly it could be filed in the county last referred to. Ellis v. Adderton, 88 N.C. 472 (1883).

Removal to Proper County. - A petition filed in the wrong county may, upon application, be removed to the proper county. Falls of Neuse Mfg. Co. v. Brower, 105 N.C. 440, 11 S.E. 313 (1890).

Statute of Limitations Does Not Bar Right or Duty to Sell Realty. - As long as the estate remained unsettled, and real property of the decedent remained subject to sale, the administrator could unquestionably proceed by proper petition in the original proceeding to have the real property sold for the payment of outstanding debts and for the final settlement of the estate. No statute of limitations barred that right or the performance of that duty. Rocky Mount Sav. & Trust Co. v. McDearman, 213 N.C. 141, 195 S.E. 531 (1938).

As long as the estate remains unsettled, no statute of limitations bars the right and duty of the personal representative to sell lands to make assets to pay the debts of the estate. Gibbs v. Smith, 218 N.C. 382, 11 S.E.2d 140 (1940).

Representative cannot sell land to pay debts barred. Robinson v. McDowell, 133 N.C. 182, 45 S.E. 545 (1903).

Heirs or devisees may plead statute of limitations or any other defense to an application for license to sell for payment of debts on which no judgment is obtained. Bevers v. Park, 88 N.C. 456 (1883); Syme v. Riddle, 88 N.C. 463 (1883); Speer v. James, 94 N.C. 417 (1886); Proctor v. Proctor, 105 N.C. 222, 10 S.E. 1036 (1890); Person v. Montgomery, 120 N.C. 111, 26 S.E. 645 (1897).

Unless Judgment Has Been Obtained. - If a judgment has been previously obtained for the debt the heirs or devisees are concluded thereby (except where fraud and collusion can be shown) and they cannot now plead any defense which could have been, but was not, pleaded by the representative. Long v. Oxford, 108 N.C. 280, 13 S.E. 112 (1891). See also Smith v. Brown, 101 N.C. 347, 7 S.E. 890 (1888); Brittain v. Dickson, 104 N.C. 547, 10 S.E. 701 (1889); Proctor v. Proctor, 105 N.C. 222, 10 S.E. 1036 (1890); Lassiter v. Upchurch, 107 N.C. 411, 12 S.E. 63 (1890); Woodlief v. Bragg, 108 N.C. 571, 13 S.E. 211 (1891). But see Tilley v. Bivins, 112 N.C. 348, 16 S.E. 759 (1893); Person v. Montgomery, 120 N.C. 111, 26 S.E. 645 (1897).


§ 28A-17-2. Contents of petition for sale.

The petition to sell real property shall include:

  1. A description of the real property and interest therein sought to be sold;
  2. The names, ages and addresses, if known, of the devisees and heirs of the decedent;
  3. A statement that the personal representative has determined that it is in the best interest of the administration of the estate to sell the real property sought to be sold.

History

(1868-9, c. 113, s. 43; Code, s. 1437; Rev., s. 77; C.S., s. 79; 1973, c. 1329, s. 3.)

§ 28A-17-3. Petition for partition.

When it is alleged that the real property of the decedent sought to be sold consists in whole or in part of an undivided interest in real property, the personal representative of the decedent may include, in the petition to sell the real property for the payment of debts and other claims against the decedent's estate, a request for partition of the lands sought to be sold.

History

(1868-9, c. 113, s. 42; Code, s. 1436; Rev., s. 68; C.S., s. 74; 1923, c. 55; 1935, s. 43; 1937, c. 70; 1943, c. 637; 1949, c. 719, s. 2; 1955, c. 302, s. 1; 1959, c. 879, s. 7; 1963, c. 291, s. 1; 1973, c. 1329, s. 3.)

§ 28A-17-4. Heirs and devisees necessary parties.

No order to sell real property shall be granted until the heirs and devisees of the decedent have been made parties to the special proceeding by service of summons in the manner required by law, in accordance with G.S. 1A-1, Rule 4. Upon such service, the court shall appoint a guardian ad litem for heirs and devisees who are unknown or whose addresses are unknown, and summons shall issue to the guardian ad litem as such. The guardian ad litem shall file answer for such heirs and devisees and defend for them, and the guardian ad litem shall be paid such sum as the court may fix, to be paid as costs of the proceeding.

History

(1868-9, c. 113, s. 44; Code, s. 1438; Rev., s. 74; C.S., s. 80; Ex. Sess. 1924, c. 3, s. 1; 1973, c. 1329, s. 3; 1975, c. 300, s. 7; 2011-344, s. 4.)

Cross References. - As to parties, see G.S. 1A-1, Rule 17.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, inserted "special" and added "in accordance with G.S. 1A-1, Rule 4"; and substituted "the guardian ad litem" for "him" or similar language in two places.

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Vesting of Real Property in Heirs. - When a property owner dies intestate, the title to his real property vests immediately in his heirs. The decedent's personal representative has the power, upon petition to the clerk of superior court, to sell decedent's real property for payments of debts and other claims against the decedent's estate, but the proceeding is an adversary one, requiring that the heirs be made parties. If an heir is not joined, the order of sale is void as to him. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Heirs at law of intestate are necessary parties to an action by an administrator to subject an interest in lands of his intestate to the payment of debts of the estate. In re Daniel's Estate, 225 N.C. 18, 33 S.E.2d 126 (1945).

Section Applies to Infants. - This section applies to making heirs and devisees parties, whether infants or adults. Perry v. Adams, 98 N.C. 167, 3 S.E. 729 (1887); Harrison v. Harrison, 106 N.C. 282, 11 S.E. 356 (1890).

Heir Not Made Party May Attack Decree. - An heir who was not made a party, or served, may subsequently assail the validity of the decree and proceed against the purchaser. Dickens v. Long, 109 N.C. 165, 13 S.E. 841 (1891). See also Webb v. Atkinson, 122 N.C. 683, 29 S.E. 949 (1898).

As to Such Heir, Decree Is Void. - As to an heir not made a party or served, whether he be an adult or an infant, the decree is absolutely void, not merely voidable, and can be collaterally attacked. Nor would the fact that he had knowledge of the sale and took no steps to prevent it cure the lack of service. Harrison v. Harrison, 106 N.C. 282, 11 S.E. 356 (1890); Card v. Finch, 142 N.C. 140, 54 S.E. 1009 (1906).

Heirs of wife's deceased husband were necessary parties to equitable distribution action in which husband's administrator had been substituted as defendant, and they were properly added as parties defendant. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).


§ 28A-17-5. Property subject to sale; conveyance by deceased in fraud of creditors.

The real property subject to sale under this Article shall include real property recovered from a fraudulent alienee pursuant to G.S. 28A-15-10(b).

History

(1868-9, c. 113, s. 51; Code, s. 1446; Rev., s. 72; C.S., s. 77; 1973, c. 1329, s. 3.)

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Salable Interest. - Every interest in real estate, whether legal or equitable, is subject to sale. Waugh v. Blevins, 68 N.C. 167 (1873); Mannix v. Ihrie, 76 N.C. 299 (1877).

Only Debtor's Interest Is Subject to Sale. - Under this section only the interest of the deceased debtor in land which he may have conveyed in fraud of creditors is subject to sale. Heck v. Williams, 79 N.C. 437 (1878); Egerton v. Jones, 107 N.C. 284, 12 S.E. 434 (1890).

Conveyance Must Be by Deceased. - Where A, being in embarrassed circumstances, purchased land from B, and caused B to convey to his (A's) son, it was held that the land could not be sold for the payment of A's debts. Rhem v. Tull, 35 N.C. 57 (1851).

Conveyance Must Be in Fraud of Creditors. - Under this section lands conveyed cannot be sold unless it can be shown that they were conveyed in fraud of creditors. McCaskill v. Graham, 121 N.C. 190, 28 S.E. 264 (1897).

Innocent Purchasers Protected. - Under this section an administrator cannot be compelled to sell property fraudulently conveyed but in the hands of an innocent purchaser. Harrington v. Hatton, 129 N.C. 146, 39 S.E. 780 (1901).

Conveyance to Wife and Children. - Property conveyed by the decedent to his wife and children without consideration in fraud of his creditors while insolvent may be recovered and sold by the administrator on behalf of the creditors. Webb v. Atkinson, 122 N.C. 683, 29 S.E. 949 (1898); Webb v. Atkinson, 124 N.C. 447, 32 S.E. 737 (1899).

Fraudulent Grantee's Rights as Creditor. - Where the wife is the fraudulent grantee and the creditor of her husband, in proceedings to set aside the conveyance to her, she is entitled to her pro rata claim out of the proceeds of the land the same as the other creditors are. Nadal v. Britton, 112 N.C. 180, 16 S.E. 915 (1893).

Burden of proof that the conveyance was fair and for a full consideration was upon the grantees, where the decedent, while insolvent, had conveyed real property to his wife and children. Webb v. Atkinson, 122 N.C. 683, 29 S.E. 949 (1898).


§ 28A-17-6. Adverse claimant to be heard; procedure.

When the real property sought to be sold, or any interest therein, is claimed by another person, such claimant may be made a party to the proceeding, and in any event may become a party upon the claimant's own motion. When an issue of law or fact is joined between the parties, the procedure shall be as prescribed for other special proceedings.

History

(1868-9, c. 113, ss. 46, 47; Code, ss. 1440, 1441; Rev., ss. 76, 78; C.S., ss. 81, 82; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the claimant's own motion" for "his own motion" in the first sentence.

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

Right to Be Heard as Party. - Any person who claims to be the owner of the land has the right to be made a party and to have an inquiry made as to his title. Gibson v. Pitts, 69 N.C. 155 (1873).

Where land is claimed by another, such claimant may be admitted to be heard as a party to a proceeding to sell lands of intestate to make assets to pay debts, or may be brought in as a party thereto. In re Daniel's Estate, 225 N.C. 18, 33 S.E.2d 126 (1945).

Claims of Undivided Interest. - One who claims an undivided interest in lands sought to be sold to pay debts, may be properly made a party to the proceedings. McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445 (1913).

Failure to Determine Issue of Title. - Where the order of sale is granted without determining an issue of title raised under this section, the order is void, and the title of the purchaser with notice of such issue is voidable. Perry v. Peterson, 98 N.C. 63, 3 S.E. 834 (1887).

Issue of Law Submitted to Judge. - Where a demurrer is filed to the petition filed before the clerk, the issue of law thereby raised must, under this section, be certified to the judge at chambers. Then the judge must transmit his decision thereon to the clerk; it is error for him to direct an order of sale after overruling the demurrer. Jones v. Hemphill, 77 N.C. 42 (1887).

Procedure. - The rulings or decisions of the clerk must be transferred for trial to the next succeeding term of the superior court, if determinative issues arise on the pleadings; and if there be issues of law or material questions of fact decided by the clerk, they may be reviewed by the judge at term or in chambers on appeal properly taken. In passing upon these questions of fact, the court may act on the evidence already received, or may require the production of other evidence. Mills v. McDaniel, 161 N.C. 112, 76 S.E. 551 (1912).

Purchasers of land from a decedent's estate took title free and clear of a mortgagee's lien because (1) a qualified executrix followed statutory procedures to sell the land, (2) an order of sale stating the order's purpose was to liquidate assets disposed of the mortgagee's deed of trust, and (3) the mortgagee's lien followed sale proceeds. Nationstar Mortg. LLC v. Curry, 262 N.C. App. 218, 822 S.E.2d 122 (2018).


§ 28A-17-7. Order granted if petition not denied; public or private sale; procedure for sale.

If, by default or admission, the allegations in the petition are not controverted, the clerk of superior court may summarily order a sale. The procedure for the sale shall be as is provided in Article 29A of Chapter 1 of the General Statutes, entitled "Judicial Sales." If it is made to appear to the clerk by petition and by satisfactory proof that it will be for the best interest of the estate to sell by private sale, the clerk may authorize a private sale in accordance with the provisions of G.S. 1-339.33 through 1-339.40.

History

(1868-9, c. 113, s. 48; Code, s. 1443; Rev., s. 79; C.S., s. 83; 1949, c. 719, s. 2; 1973, c. 1329, s. 3.)

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Powers of Clerk. - The clerk of the superior court, for the purpose of decreeing a sale in case provided by this section, represents and is the court, and has authority to exercise the discretionary powers conferred. Tillett v. Aydlett, 90 N.C. 551 (1884).

Unsigned Decree of Sale. - It is not essential to the validity of the decree that it should be signed. Sledge v. Elliott, 116 N.C. 712, 21 S.E. 797 (1895).

Decree Not Conclusive of Debts. - The decree of the sale is not conclusive of the debts recited by the personal representative in his application for the sale of the land. Latta v. Russ, 53 N.C. 111 (1860).


§ 28A-17-8. Under power in will, sales public or private.

Sales of real property made pursuant to authority given by will may be either public or private, unless the will otherwise directs, and may be on such terms as in the opinion of the personal representative are most advantageous to those interested in the decedent's estate.

History

(1868-9, c. 113, s. 75; Code, s. 1503; Rev., s. 84; C.S., s. 89; 1973, c. 1329, s. 3.)

CASE NOTES

Sale Voidable. - Executrix was given the authority to sell the real property and thus, based on the will, she had the power to sell the farm and equally divide the proceeds; consequently, the sale of the farm was not void. However, because the executrix, sold the farm to her limited liability company then later transferred it to herself individually, the sale was voidable. Collier v. Bryant, 216 N.C. App. 419, 719 S.E.2d 70 (2011).


§ 28A-17-9. Death of vendor under contract; representative to convey.

When any decedent has contracted to sell any real property and has given bond or other enforceable written contract to the purchaser to convey the same, the decedent's personal representative may execute and deliver a deed to such real property and such deed shall convey the title as fully as if it had been executed and delivered by the decedent. No deed shall be made unless the purchaser complies with the terms of the bond or other written contract. If the contract for conveyance requires the giving of a warranty deed, the deed given by the personal representative shall contain such warranties as required by the contract and the warranties shall be binding on the estate and not on the personal representative personally.

History

(1868-9, c. 113, s. 65; 1874-5, c. 251; Code, s. 1492; Rev., s. 83; C.S., s. 91; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the decedent's personal representative" for "his personal representative" in the first sentence.

Legal Periodicals. - For article on installment land contracts in North Carolina, see 3 Campbell L. Rev. 29 (1981).

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Remedy of Optionee Where Option Not Exercised Before Landowner's Death. - This section contemplates only contracts of conveyance of a bilateral nature. Hence where the owner of the land dies before the option given by him is exercised the representative has, under this section, no power to convey; and the optionee's remedy is against the heirs or the devisees. Mizell v. Dennis Simmons Lumber Co., 174 N.C. 68, 93 S.E. 436 (1917).

Section Not Applicable to Restore Lost Deeds. - This section does not apply to cases where a deed is executed in performance of the condition of the bond to convey, but is lost after the death of the vendor and before its registration. Hodges v. Hodges, 22 N.C. 72 (1838).

Registration and Payment Prerequisites. - Unless the contract for the sale is proved and registered and the purchase money is paid in full (now terms of bond or other written contract complied with), a deed made by the representative is inoperative. Taylor v. Hargrove, 101 N.C. 145, 7 S.E. 647 (1888).

Showing of Consideration. - The person claiming under the contract must show that there was a valuable consideration thereof, and such other circumstances as would be equivalent to a payment of that consideration. Lindsay v. Coble, 37 N.C. 602 (1843).

Deed executed by representative before contract for sale had been proven and registered, and the purchase money paid in full, was inoperative. Taylor v. Hargrove, 101 N.C. 145, 7 S.E. 647 (1888).

Warranty of Title. - This section empowers the representative to convey only such interest as the vendor could sell. Hence where the vendor contracts to sell his interest in the land, the representative cannot be expected to warrant the title of the land. Twitty v. Lovelace, 97 N.C. 54, 2 S.E. 661 (1887).

Equitable Defense Against Bond. - Where the representative in compliance with this section executes the deed to the purchaser, any equitable defense against the bond may be set up against such deed. McCraw v. Gwin, 42 N.C. 55 (1850).

Judgment Against Administrator Ineffectual Against Heir. - Under N.C. Const., Art. I, § 19, a judgment cannot bind a person unless he comes or is brought before the court in some way sanctioned by law and afforded an opportunity to be heard in defense of his rights. As an inexorable consequence of this constitutional provision, any judgment which may be rendered in an action against a decedent's administrator will be wholly ineffectual as against an heir of the decedent, who is not a party to such action, even though such action is predicated upon this section. Scott v. Jordan, 235 N.C. 244, 69 S.E.2d 557 (1952).

Heirs as Necessary Parties to Suit by Representative. - In an action brought by the personal representative of an obligor in a bond for title to subject the land to the payment of the purchase money, the heirs of the obligor are necessary parties. But if the bond is proved and registered and the section has been complied with, in proceedings for the sale of such land, the presence of the heirs is perhaps not necessary. Grubb v. Lookabill, 100 N.C. 267, 6 S.E. 390 (1888).


§ 28A-17-10. Title in personal representative for estate; he or successor to convey.

When real property is conveyed to a personal representative for the benefit of the estate the personal representative represents, the personal representative or any successor personal representative may sell and convey it upon such terms as the personal representative may deem just and for the advantage of the estate. The procedure shall be as is provided in Article 29A of Chapter 1 of the General Statutes, entitled "Judicial Sales." If it is made to appear to the clerk of superior court by petition and by satisfactory proof that it will be for the best interest of the estate to sell by private sale, the clerk may authorize a private sale in accordance with the provisions of G.S. 1-339.33 through 1-339.40.

History

(1905, c. 342; Rev., s. 71; C.S., s. 92; 1949, c. 719, s. 2; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative" for "he" throughout the first sentence.

§ 28A-17-11. Personal representative may lease or mortgage.

In lieu of asking for an order of sale of real property, the personal representative may request the clerk of superior court to issue to the personal representative an order to lease or to mortgage real property of the decedent. The clerk of superior court is authorized to issue an order to lease or mortgage on such terms as the clerk deems to be in the best interest of the estate.

History

(1913, c. 49, s. 1; C.S., s.75; 1927, c. 222, s. 1; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "issue to the personal representative" for "issue to him" in the first sentence, and substituted "the clerk deems" for "he deems" in the last sentence.

CASE NOTES

Subrogation of Representative Who Personally Pays Debts. - Where an administrator, in good faith pending the mortgaging of property of the estate to pay debts, personally pays the debts of the estate, he is entitled to be subrogated to the rights of the creditors whose debts he had paid, and upon the execution of the mortgage, upon order of court, is entitled to repay himself from the proceeds of the loan. Caffey v. Osborne, 210 N.C. 252, 186 S.E. 364 (1936), decided under prior law.

Cited in State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).


§ 28A-17-12. Sale, lease or mortgage of real property by heirs or devisees.

  1. If the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 occurs within two years after the death of the decedent:
    1. All sales, leases or mortgages of real property by heirs or devisees of any resident or nonresident decedent made after the death of the decedent and before the first publication or posting of the general notice to creditors are void as to creditors and personal representatives; and
    2. All sales, leases or mortgages of real property by heirs or devisees of any resident or nonresident decedent made after such first publication or posting and before approval of the final account shall be void as to creditors and personal representatives unless the personal representative joins in the sale, lease or mortgage.
  2. If the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 does not occur within two years after the death of the decedent, all sales, leases or mortgages of real property by heirs or devisees of any resident or nonresident decedent shall be valid as to creditors and personal representatives of the decedent.

History

(1973, c. 1329, s. 3; 1979, 2nd Sess., c. 1246, s. 1.)

CASE NOTES

Cited in State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010).


§ 28A-17-13. Prior validating acts.

Chapter 70 of the Public Laws of 1923, Chapter 48 of the Public Laws of 1925, Chapter 146 of the Public Laws of 1931, and Chapters 31 and 381 of the Public Laws of 1935, all validating certain prior sales of real property by executors or administrators and heretofore codified as G.S. 28-100 through 28-104, shall remain in full force and effect, though no longer carried forward as part of the General Statutes.

History

(1973, c. 1329, s. 3.)

ARTICLE 18. Actions and Proceedings.

Sec.

§ 28A-18-1. Survival of actions to and against personal representative.

  1. Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as provided in subsection (b) hereof, shall survive to and against the personal representative or collector of the person's estate.
  2. The following rights of action in favor of a decedent do not survive:
    1. Causes of action for libel and for slander, except slander of title;
    2. Causes of action for false imprisonment;
    3. Causes of action where the relief sought could not be enjoyed, or granting it would be nugatory after death.

History

(1868-9, c. 113, ss. 63, 64; Code, ss. 1490, 1491; Rev., ss. 156, 157; 1915, c. 38; C.S., ss. 159, 162; 1965, c. 631; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Cross References. - As to abatement of actions, see G.S. 1A-1, Rule 25.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the person's" for "his" in subsection (a).

Legal Periodicals. - For note on libel by will, see 33 N.C.L. Rev. 146 (1954).

For note on survival of actions for alienation of affections and criminal conversation, see 35 N.C.L. Rev. 428 (1957).

For article on recent developments in North Carolina tort law, see 48 N.C.L. Rev. 791 (1970).

For note, "Vendor Liability for the Sale of Alcohol to an Underage Person: The Untoward Consequences of Estate of Mullis v. Monroe Oil Co.," see 21 Campbell L. Rev. 277 (1999).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

Section Changes Common Law. - The rule of the common law that a personal right of action dies with the person has been changed by this section and former G.S. 1-74 (see now G.S. 1A-1, Rule 25), and, except in the instances specified in subsection (b), an action originally maintainable by or against a deceased person is now maintainable by or against his personal representative. Suskin v. Maryland Trust Co., 214 N.C. 347, 199 S.E. 276 (1938). See Mast v. Sapp, 140 N.C. 533, 53 S.E. 350 (1906).

The rule of the common law that a personal right of action dies with the person has been changed by former G.S. 1-74 (see now G.S. 1A-1, Rule 25) and this section. Paschal v. Autry, 256 N.C. 166, 123 S.E.2d 569 (1962).

This section clearly manifests a two-fold legislative purpose: (1) To declare what causes of action survive the death of the person in whose favor or against whom they have accrued; and (2) to designate the persons who may sue or be sued upon such surviving causes of action. McIntyre v. Josey, 239 N.C. 109, 79 S.E.2d 202 (1953); Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Availability of Survivorship Action. - Trial court properly granted summary judgment to defendant as to an insurance company's action under the survivorship statute, G.S. 28A-18-1, because the claim was based on a single negligent act of defendant, and thus the sole remedy available was under the wrongful death statute, G.S. 28A-18-2, and any wrongful death action was barred by the statute of limitations under G.S. 1-53(4). State Auto Ins. Co. v. Blind, 185 N.C. App. 707, 650 S.E.2d 25 (2007).

Beneficiary Lacked Standing to Sue Executor Absent Evidence of Demand Prior to Decedent's Death. - Absent evidence of an assertion of a prior demand against the executor before the decedent's death, or evidence that the beneficiary sought to remove the executor through petition before the clerk of superior court, the beneficiary lacked standing to sue the executor after the decedent died. Horry v. Woodbury, 189 N.C. App. 669, 659 S.E.2d 88 (2008), rev'd, 363 N.C. 7, 673 S.E.2d 127 (2009).

Limitation for Wrongful Death Action Based on Medical Malpractice Not Extended by G.S. 1-15(c). - G.S. 1-15(c) would not apply to extend statute of limitations for plaintiff bringing action for wrongful death based on alleged acts of medical malpractice; plaintiff was required to bring her wrongful death claim within two years of deceased's death, pursuant to G.S. 1-53(4). King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 385 S.E.2d 812, cert. denied, 326 N.C. 265, 389 S.E.2d 114 (1990).

A viable fetus is a "person" under the Wrongful Death Act and the estate of such a person may bring an action for damages. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, aff'd, 331 N.C. 368, 416 S.E.2d 174 (1992).

Decedent's personal representative is the proper party plaintiff in a wrongful death action. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

Substitution Order Ineffective As To Personal Representative Not Yet Appointed. - Where order directing the substitution of a yet-to-be-appointed personal representative for deceased defendant did not comply with G.S. 28A-18-1 or G.S. 1A-1, Rule 25, the order could not operate retroactively to substitute him as defendant once the personal representative was appointed, and the trial court erred in granting plaintiffs' summary judgment motion because the personal representative did not receive timely notice of the motion under G.S. 1A-1, Rule 56. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715 (2005), cert. denied, - U.S. - , 126 S. Ct. 2972, 165 L. Ed. 2d 954 (2006).

Action by the personal representative of deceased stillborn child was not barred by the release executed by child's parents, as the release by its terms bound only themselves and their heirs and assigns as to their personal claims and did not purport to settle or affect a claim for the child's wrongful death, and since under North Carolina law the parents, though the child's next of kin, had no authority to either assert or settle a claim for the child's wrongful death; only the child's personal representative had that authority. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, aff'd, 331 N.C. 368, 416 S.E.2d 174 (1992).

Debt Due Decedent Can Be Collected Only by Administrator. - If a debt is due a decedent, it can be collected only by his administrator. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Since pending the administration of an estate title to personal property of an intestate vests in his administrator and not his heirs, it necessarily follows that the administrator, and not creditors or heirs, is the proper party to bring an action to collect a debt due the estate or to recover specific personal property. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Exceptions to Rule That Administrator Bring Suit. - To the general rule that the administrator must bring suit there are certain exceptions. If the administrator has refused to bring the action to collect the assets; if there is collusion between a debtor and a personal representative - particularly if the latter is insolvent; or, if some other peculiar circumstance warrants it, the creditors or heirs may bring the action which the personal representative should have brought. However, in such a case the administrator must be a party defendant. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Collector of the estate of a deceased tort-feasor can be sued in his representative capacity upon a cause of action under this section. McIntyre v. Josey, 239 N.C. 109, 79 S.E.2d 202 (1953).

Right to Retain Attorney. - Until a personal representative is appointed for an estate, no one has the right to retain an attorney to represent the estate. In re Alston, 10 N.C. App. 46, 177 S.E.2d 745 (1970), appeal dismissed, 277 N.C. 725, 178 S.E.2d 830 (1971).

Removal of Personal Representative for Failure to Prosecute or Defend Action. - In a proper case, a personal representative may be removed for failure to prosecute or defend actions in behalf of the estate he represents, but clearly a request to sue and a refusal would be conditions precedent. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Suit by Heir to Collect His Share of Decedent's Funds in Hands of Third Party. - A suit by one of the heirs to collect his share of decedent's funds in the hands of a third person is no different from a suit by a creditor of the estate to collect a debt due it. In the absence of allegations bringing the suit within one of the exceptions, this has never been permitted. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Without alleging that the administrator has refused to bring suit or that there was collusion, one of six heirs of an intestate, by making his administrator a party defendant, may not maintain an action against another of the heirs for his distributive share of decedent's money which that other is wrongfully withholding. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253 (1963).

Breach of a condition subsequent contained in a deed entitles the grantor during his life, or his heirs after his death, to bring suit for the land or to declare the estate forfeited, but does not entitle the administrator to bring such suit, this section not being applicable. Barkley v. Thomas, 220 N.C. 341, 17 S.E.2d 482 (1941).

Bank Deposit Vests in Personal Representative. - Where a bank was obligated in an unstated amount to its depositor, when he died, the relationship theretofore subsisting was that of debtor and creditor, and the title to said account vested in the depositor's personal representative for collection and administration. Monroe v. Dietenhoffer, 264 N.C. 538, 142 S.E.2d 135 (1965).

Action Properly Dismissed Against Defendants Who Were Merely Collectors by Affidavit. - Where plaintiff was required by this statute to bring his action against the collector or personal representative, his action was properly dismissed when he filed his action against defendants who were merely collectors by affidavit under G.S. 28A-25-1, since plaintiff failed to bring his action against the proper party or parties. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Summary Judgment for Deceased Defendant Ineffective Where Motion to Substitute Personal Representative Had Never Been Ruled Upon. - After defendant doctor died, the medical malpractice action survived only against the personal representative or collector of the estate pursuant to G.S. 28A-18-1(a), and thus where the trial court never ruled upon the motion under G.S. 1A-1, Rule 25(a) to substitute the executrix of the estate the trial court's summary judgment order with respect to the doctor had no effect. Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., 175 N.C. App. 474, 624 S.E.2d 380 (2006).

Guardian Not Authorized To Continue Action. - Trial court erred in denying the collector of an estate partial summary judgment and in granting beneficiaries, a trustee, and a limited liability company (LLC) partial summary judgment in the collector's action challenging the formation of the LLC and a trust because at the time the trial court entered its order denying the guardian of the estate summary judgment, the guardian was no longer authorized by statute to continue the action; pursuant to G.S. 1A-1, N.C. R. Civ. P. 25(a), the trial court substituted the collector as plaintiff, and that order was entered after the trial court granted the beneficiaries, trustee, and LLC summary judgment. White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust, 222 N.C. App. 277, 730 S.E.2d 213 (2012).

Exclusivity of Workers' Compensation Remedies. - Even if a forklift driver was not trained to sound a horn when entering or exiting defendant employer's plant, there was no evidence injury or death was substantially certain to occur as the forklift had been operated in a similar manner for a number of years with no similar accident; a wrongful death action filed by a deceased worker's representative under the North Carolina Wrongful Death Act, G.S. 28A-18-1 through G.S. 28A-18-8, was precluded by G.S. 97-9, G.S. 97-10.1, of the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., and summary judgment was therefore granted to the employer. Southern v. Metromont Materials, L.L.C., 331 F. Supp. 2d 386 (W.D.N.C. 2004).

Jury Issue Raised. - Personal representative's wrongful death and survivorship claims could be brought in the same suit and separate issues should have been presented to the jury on whether a nursing home's negligence caused the decedent's pre-death injuries and wrongful death; the nursing home's claim that a personal representative was required to delineate which of the decedent's pressure sores caused his death and which sores caused him pain and suffering prior to his death was rejected as if the jury determined that the decedent died of Alzheimer's disease, rather than an infection from the pressure sores, it could still reasonably determine that the nursing home's negligence caused the pressure sores and that any or all of those sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Alternative Claims for Wrongful Death and Survivorship. - Wrongful death and survivorship claims may be brought as alternative claims for the same negligent acts. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Applied in Mazzocone v. Drummond, 42 N.C. App. 493, 256 S.E.2d 843 (1979); Keener v. Korn, 46 N.C. App. 214, 264 S.E.2d 829 (1980); Tinkham v. Hall, 47 N.C. App. 651, 267 S.E.2d 588 (1980); Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843 (1982); Elmore v. Elmore, 67 N.C. App. 661, 313 S.E.2d 904 (1984); McGowen v. Rental Tool Co., 109 N.C. App. 688, 428 S.E.2d 275 (1993); Sweet v. Boggs, 134 N.C. App. 173, 516 S.E.2d 888 (1999); Estate of Fennell v. Stephenson, 137 N.C. App. 430, 528 S.E.2d 911 (2000).

Cited in Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408 (1981); Strong v. Johnson, 53 N.C. App. 54, 280 S.E.2d 37 (1981); Day v. Coffey, 68 N.C. App. 509, 315 S.E.2d 96 (1984); Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C. 1984); Clark v. Inn W., 324 N.C. 415, 379 S.E.2d 23 (1989); Turner v. Duke Univ., 325 N.C. 152, 381 S.E.2d 706 (1989); Caldwell v. Caldwell, 103 N.C. App. 380, 405 S.E.2d 588 (1991); Greer v. Parsons, 331 N.C. 368, 416 S.E.2d 174 (1992); McInnis v. Provident Life & Accident Ins. Co., 21 F.3d 586 (4th Cir. 1994); Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994); Jones v. Rochelle, 125 N.C. App. 82, 479 S.E.2d 231 (1996); Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 505 S.E.2d 131 (1998); Farm Bureau Ins. Co. of N.C. Inc. v. Blong, 159 N.C. App. 365, 583 S.E.2d 307 (2003), cert. denied, 357 N.C. 578, 589 S.E.2d 125 (2003); Champion v. PPG Indus., - F. Supp. 2d - (W.D.N.C. Apr. 2, 2004); Murphy v. Hinton, 242 N.C. App. 95, 773 S.E.2d 355 (2015); Parmley v. Barrow, 253 N.C. App. 741, 801 S.E.2d 386 (2017).

II. REVIVAL AND SURVIVAL OF ACTIONS.

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

All Causes of Action Survive Except Those Specified in Subsection (b). - It appears that under this section all causes of action survive the death of the person in whose favor or against whom they have accrued, except the causes of action specified in subsection (b). McIntyre v. Josey, 239 N.C. 109, 79 S.E.2d 202 (1953).

Causes of Action Specified in Subsection (b). - Sister's petition to declare her brother incompetent was nugatory after the death of the brother and did not survive the death of the brother; thus, the appeal abated and became moot upon the brother's death and was dismissed. In re Higgins, 160 N.C. App. 704, 587 S.E.2d 77 (2003).

Constitutional Claims. - Where plaintiff homeowner challenged defendant town's sign ordinance under the First Amendment, but he died during the pendency of the town's appeal of the district court's judgment in his favor, under 42 U.S.C.S. § 1988(a), whether the claim survived was dependent on state law, and the controversy over the retrospective constitutional injury - even if only compensable by nominal damages - survived under G.S. 28A-18-1(b)(3), given that the default rule of the North Carolina statute was one of survival. Brown v. Town of Cary, 706 F.3d 294 (4th Cir. 2013).

Civil Action Based Upon Personal Injuries. - This section provides that a civil action based upon personal injuries survives the death of the plaintiff. Schronce v. Coniglio, 124 N.C. App. 216, 476 S.E.2d 366 (1996).

Cause of action which survives against successor personal representatives of an estate likewise survives in favor of successor personal representatives of the estate. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700 (1946).

Revival and Survival of Action against Representative. - The general rule is that wherever an action can be revived against the representative, it will also survive against him. Butner v. Keelhn, 51 N.C. 60 (1858).

Action Not Time Barred. - Action filed on October 20, 2000, two days after qualification of deceased driver's personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52, where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff's cause of action survived his death, and thus, pursuant to G.S. 1-22, plaintiff was permitted to commence a cause of action against deceased's personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3, or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3. The personal representative's failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest "deadline" date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292 (2002).

This section does not revive the action against a distributee, but against the personal representative. Healey v. R.J. Reynolds Tobacco Co., 48 F. Supp. 207 (M.D.N.C. 1942).

Action for Divorce Did Not Survive Husband's Death. - Trial court did not err in dismissing husband's action for divorce and wife's counterclaim for equitable distribution where husband died before decree of absolute divorce was granted. Caldwell v. Caldwell, 93 N.C. App. 740, 379 S.E.2d 271, cert. denied, 325 N.C. 270, 384 S.E.2d 513 (1989).

A divorce judgment which has not been shown to be void may not be set aside following the death of one of the parties so as to reinstate the marital relationship; while a divorce decree which affects property rights of the parties may on timely motion be amended, altered, or modified, the trial court does not have the jurisdiction to change the adjudged marital status of the parties. Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242 (2001).

Annulment Action Survived Decedent's Death. - Where an executrix had filed a case on a decedent's behalf as his guardian ad litem, seeking an annulment of the decedent's marriage while the decedent was alive, and where substantial property rights hinged on the validity of the marriage, the action did not abate on the decedent's death and the executrix was entitled to pursue it. Clark v. Foust-Graham, 171 N.C. App. 707, 615 S.E.2d 398 (2005), cert. denied, 362 N.C. 680, 670 S.E.2d 563 (2008).

Cause of Action for Tortious Injury to Personal Property. - Since it is not one of the causes of action enumerated in subsection (b), a cause of action for a tortious injury to personal property survives the death of either party. McIntyre v. Josey, 239 N.C. 109, 79 S.E.2d 202 (1953).

Action for Negligent Injury. - The fact that the injury in suit did not cause the death of the injured party, but that death resulted from another cause, does not prevent the survival of an action for negligent injury. Fuquay v. A. & W. Ry., 199 N.C. 499, 155 S.E. 167 (1930).

Personal representative was entitled to proceed on both a survivorship claim and a wrongful death claim where he alleged that a nursing home's negligence resulted not only in the decedent's death, but also in injury, pain and suffering, and medical expenses prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Trial court should have submitted survivorship issues to the jury as a personal representative presented sufficient evidence of the decedent's pre-death injuries, including evidence related to the questions of preventability of the decedent's pressure sores, the treatment of those wounds, and whether and to what degree the wounds caused the decedent pain; the personal representative presented substantial evidence, notwithstanding the nursing home's contrary evidence, to allow the jury to conclude that the nursing home negligently failed to prevent the decedent's pressure sores and that those pressure sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Action Under Tort Claims Act. - Recovery against the county board of education pursuant to the North Carolina Tort Claims Act did not bar plaintiff's claims against the individual bus driver who caused the wreck, or plaintiff's uninsured motorist/underinsured motorist (UM/UIM) carrier for damages in excess of the maximum recovery allowable under the Tort Claims Act. Oakley v. Thomas, 112 N.C. App. 130, 434 S.E.2d 663 (1993).

There is a surviving cause of action for predeath expenses and pain and suffering. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

An injured person's common-law right of action to recover damages for hospital and medical expenses and for pain and suffering caused by the negligence of another survives to the injured party's personal representative. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Right of a ward to sue his guardian for lack of diligence in the care of the estate survives to the ward's administrator. Kuykendall v. Proctor, 270 N.C. 510, 155 S.E.2d 293 (1967).

An action brought by the administrator of a ward's estate against the guardian to recover money lost because of lack of diligence by the guardian is not one for relief which could not be enjoyed, or the granting of which would be nugatory after death, so as to fall within the class specified in subdivision (3) of subsection (b). Kuykendall v. Proctor, 270 N.C. 510, 155 S.E.2d 293 (1967).

Action for Wrongful Cutting and Removal of Timber. - If a cause of action for damages for the wrongful cutting and removal of timber from realty belonging to the deceased, in whole or in part, accrued during his lifetime, the action for damages survives to his executors, and must be brought by his executors rather than by his heirs or devisees. However, if such an injury to the realty was committed after his death, the right of action belongs to his heirs or devisees. Paschal v. Autry, 256 N.C. 166, 123 S.E.2d 569 (1962).

Vindictive Damages. - Though the cause of action for trespass may survive against the representative of the trespasser, no vindictive damages may be recovered in such action. Rippey v. Miller, 33 N.C. 247 (1850).

Claims Against State After Posthumous Pardon. - When estates were attempting to recover for decedents who received posthumous pardons, the claims did not survive their deaths since the pardons were not received during their lifetimes. The claims only accrued upon the issuance of the pardons of innocence. Estate of Jerry Jacobs v. State, 242 N.C. App. 396, 775 S.E.2d 873 (2015).

Survivorship Claim Sufficiently Pled. - Personal representative sufficiently pled a survivorship claim for a decedent's pre-death injuries where he made allegations primarily directed to the injuries sustained by, and damages caused to, the decedent in counts separate from a count in which he requested the damages listed in G.S. 28A-18-2 and several of the damages pled were not damages recoverable under G.S. 28A-18-2; because the damages were not lumped together, they did not appear to relate to a single claim, but related to separate claims for damages sustained by the decedent due to the nursing home's negligent actions during his lifetime and the negligence allegedly causing his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Authority to Compromise Claims. - Charity could not intervene as of right under G.S. 1A-1, N.C. R. Civ. P. 24(a)(2) in an interpleader action that was filed because the decedent's ex-wife was the beneficiary on the decedent's Individual Retirement Account (IRA), but the charity and the decedent's brother were awarded the IRA in the decedent's will as: (1) the will gave the personal representative the G.S. ch. 28A and 32 powers, including those in G.S. 28A-18-1(a), G.S. 28A-13-3(a)(15), and G.S. 28A-13-2, to compromise and release claims; (2) the personal representative and the ex-wife entered into a settlement resolving the action; and (3) the charity did not show that its interest was not adequately represented in the interpleader action. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863 (2013).

Child Custody Action. - Trial court properly dismissed a grandfather's complaint for custody of his maternal grandchild because it lacked subject matter jurisdiction to proceed due to a pre-existing child custody action between the child's paternal grandparents and the child's now-deceased mother, which did not abate for reasons of constitutional and statutory law and, and, while any relative could seek custody of a child, the grandfather did not file suit against an allegedly unfit parent, and as his complaint was more akin to a request to modify the custody order than it was an initial claim for custody, the proper procedure for the grandfather was to file a motion to intervene and a motion for custody in the grandparents' custody action. Rivera v. Matthews, 263 N.C. App. 652, 824 S.E.2d 164 (2019).


§ 28A-18-2. Death by wrongful act of another; recovery not assets.

  1. When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The personal representative or collector of the decedent who pursues an action under this section may pay from the assets of the estate the reasonable and necessary expenses, not including attorneys' fees, incurred in pursuing the action. At the termination of the action, any amount recovered shall be applied first to the reimbursement of the estate for the expenses incurred in pursuing the action, then to the payment of attorneys' fees, and shall then be distributed as provided in this section. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or devises, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding four thousand five hundred dollars ($4,500) incident to the injury resulting in death, except that the amount applied for hospital and medical expenses shall not exceed fifty percent (50%) of the amount of damages recovered after deducting attorneys' fees, but shall be disposed of as provided in the Intestate Succession Act. The limitations on recovery for hospital and medical expenses under this subsection do not apply to subrogation rights exercised pursuant to G.S. 135-48.37. All claims filed for burial expenses of the decedent and reasonable hospital and medical expenses shall be subject to the approval of the clerk of the superior court and any party adversely affected by any decision of said clerk as to said claim may appeal to the superior court in term time.
  2. Damages recoverable for death by wrongful act include:
    1. Expenses for care, treatment and hospitalization incident to the injury resulting in death;
    2. Compensation for pain and suffering of the decedent;
    3. The reasonable funeral expenses of the decedent;
    4. The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;
      1. Net income of the decedent,
      2. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,
      3. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
    5. Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5;
    6. Nominal damages when the jury so finds.
  3. All evidence which reasonably tends to establish any of the elements of damages included in subsection (b), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act.
  4. In all actions brought under this section the dying declarations of the deceased shall be admissible as provided for in G.S. 8-51.1.

History

(R.C., c. 1, s. 10; c. 46, ss. 8, 9; 1868-9, c. 113, ss. 70-72, 115; Code, ss. 1498-1500; Rev., ss. 59, 60; 1919, c. 29; C.S., ss. 160, 161; 1933, c. 113; 1951, c. 246, s. 1; 1959, c. 879, s. 9; c. 1136; 1969, c. 215; 1973, c. 464, s. 2; c. 1329, s. 3; 1981, c. 468; 1985, c. 625; 1993, c. 299, s. 1; 1995, c. 514, s. 2; 1997-456, s. 7; 2006-264, s. 66(b); 2011-284, s. 16; 2011-344, s. 4; 2013-91, s. 1(a).)

Cross References. - As to admissibility of dying declarations in civil and criminal proceedings, see G.S. 8-51.1 and G.S. 8C-1, Rule 804.

As to power of personal representative to maintain action for wrongful death and to compromise or settle any such claims, subject to approval of judge of superior court, see G.S. 28A-13-3(23).

Editor's Note. - This section was amended by Session Laws 2011-284, s. 16, and Session Laws 2011-344, s. 4, in the coded bill drafting format provided by G.S. 120-20.1. The words "or her" in the first sentence of subsection (a), as added by Session Laws 2011-284, were not struck through by Session Laws 2011-344. This omission was corrected by Session Laws 2013-91, s. 1(a), which deleted the reference to "or her" in subsection (a).

Effect of Amendments. - Session Laws 2006-264, s. 66(b), effective August 27, 2006, and applicable to payments made by the Plan after July 20, 2004, for which reimbursement is sought on or after August 27, 2006, and also applicable to wrongful deaths occurring on or after August 27, 2006, inserted the next-to-last sentence of subsection (a).

Session Laws 2011-284, s. 16, effective June 24, 2011, in subsection (a), in the first sentence, inserted "or her" and subtituted "the injured person" for "him," and in the fourth sentence, substituted "devises" for "legacies."

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence of subsection (a), substituted "the injured person" for "him," and "the personal representatives or collectors of the person or corporation that would have been so liable" for "his or their personal representatives or collectors."

Session Laws 2013-91, s. 1(a), effective June 12, 2013, in subsection (a), deleted "or her" following "would have been so liable, and" in the first sentence, and substituted "G.S. 135-48-37" for "G.S. 135-45.1" in the fifth sentence, and "burial expenses of the decedent and reasonable hospital and medical expenses shall be subject to the approval of" for "such services shall be approved by" in the last sentence.

Legal Periodicals. - For discussion of the right of husband or wife to recover damages for the loss of consortium by reason of injury or death, see 3 N.C.L. Rev. 98 (1925).

For critical appraisal of former wrongful death statute, see 11 N.C.L. Rev. 263 (1933); 16 N.C.L. Rev. 211 (1938).

As to admissibility of evidence relating to damages recoverable for wrongful death, see 28 N.C.L. Rev. 106 (1950).

For note on possibility of recovery for wrongful death of unborn child, see 28 N.C.L. Rev. 245 (1950).

As to necessity prior to the 1951 amendment of former wrongful death statute for alleging that action for wrongful death was instituted within one year, see 28 N.C.L. Rev. 334 (1950).

For note on action for death based upon breach of warranty of fitness in sale of drug, see 30 N.C.L. Rev. 478 (1952).

For comment on wrongful death damages in North Carolina, see 44 N.C.L. Rev. 402 (1966).

For case law survey as to damages, see 44 N.C.L. Rev. 993 (1966).

For note on parent-child tort immunity, see 44 N.C.L. Rev. 1169 (1966).

For comment on Stetson v. Easterling, 274 N.C. 152, see 47 N.C.L. Rev. 280 (1968).

For comment on Greene v. Nichols, 274 N.C. 18, see 47 N.C.L. Rev. 281 (1968).

For note on wife's right to husband's consortium, see 47 N.C.L. Rev. 1006 (1969).

For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For comment on new North Carolina wrongful death statute, see 48 N.C.L. Rev. 594 (1970).

For article on recent developments in North Carolina tort law, see 48 N.C.L. Rev. 791 (1970).

For article on the 1969 amendments to the former wrongful death statute, see 6 Wake Forest Intra. L. Rev. 211 (1970).

For survey of 1976 case law on torts, see 55 N.C.L. Rev. 1088 (1977).

For note on the interaction between North Carolina's wrongful death statute and its statute of limitations for not readily apparent personal injuries or product defects, see 13 Wake Forest L. Rev. 543 (1977).

For survey of 1977 law on torts, see 56 N.C.L. Rev. 1136 (1978).

For survey of 1979 tort law, see 58 N.C.L. Rev. 1561 (1980).

For article, "North Carolina's New Products Liability Act: A Critical Analysis," see 16 Wake Forest L. Rev. 171 (1980).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1053 (1981).

For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).

For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983).

For article, "Legal Implications of Human in Vitro Fertilization for the Practicing Physician in North Carolina," see 6 Campbell L. Rev. 5 (1984).

For article, "Economic Valuation for Wrongful Death," see 6 Campbell L. Rev. 47 (1984).

For note on use of the family purpose doctrine when no outsiders are involved, in light of Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984), see 21 Wake Forest L. Rev. 243 (1985).

For comment, "Wrong Without a Remedy - North Carolina and the Wrongful Death of a Stillborn," see 9 Campbell L. Rev. 93 (1986).

For note discussing the appointment of an administrator for a decedent's estate to create diversity of citizenship, see 21 Wake Forest L. Rev. 489 (1986).

For note discussing wrongful death recovery for a viable unborn fetus, in light of DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986), see 16 N.C. Cent. L.J. 207 (1987).

For note on the wrongful death of a viable fetus in North Carolina, see 66 N.C.L. Rev. 1291 (1988).

For note on the expansion of the viable fetus wrongful death action, see 11 Campbell L. Rev. 91 (1988).

For note on the wrongful death of a viable fetus, see 23 Wake Forest L. Rev. 849 (1988).

For note, "Examining DiDonato Damage Limitation and Mandatory Joinder Requirements - Greer v. Parsons," see 15 Campbell L. Rev. 97 (1992).

For article, "Person or Thing - In Search of the Legal Status of a Fetus: A Survey of North Carolina Law," see 17 Campbell L. Rev. 169 (1995).

For comment, "In re Estate of Lunsford and Statutory Ambiguity: Trying to Reconcile Child Abandonment and the Intestate Succession Act," see 81 N.C.L. Rev. 1149 (2003).

For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016).

For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs," see 96 N.C.L. Rev. 512 (2018).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto. In addition, most of the cases below were decided prior to the 1993 amendment, which raised to $4,500 the limit on the amount recovered in a wrongful death action that is liable for the payment of hospital and medical expenses of the decedent.

Constitutionality. - Subdivision (b)(4) is not unconstitutionally vague and therefore violative of N.C. Const., Art. I, § 19. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

History of Subsection (b). - See Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Purpose of Section. - The purpose of this section was to withdraw claims of this kind from the effect and operation of the maxim actio personalis moritur cum persona, and to continue, as the basis of the claim of his estate, the wrongful injury to the person resulting in death. Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882 (1921).

Section Creates New Cause of Action. - The cause of action for personal injuries ceases with the death of the injured party and the action under this section is not a survival of the former but an entirely new action. Harper v. Commissioners of Nash County, 123 N.C. 118, 31 S.E. 384 (1898); Bolick v. Southern R.R., 138 N.C. 370, 50 S.E. 689 (1905). See Taylor v. Cranberry Iron & Coal Co., 94 N.C. 525 (1886).

This section creates a new cause of action only in the sense that at common law the right did not survive to the personal representative. Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882 (1921).

The wrongful death statute confers a new right of action with damages limited to fair and just compensation for the pecuniary injury resulting from death, recoverable by the personal representative for the benefit of the heirs. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946). See McCoy v. Atlantic C.L.R.R., 229 N.C. 57, 47 S.E.2d 532 (1948).

The wrongful death statute confers a new right of action which did not exist before the statute and which at the death of an injured person accrued to the personal representative of the decedent for the benefit of a specific class of beneficiaries. Crawford v. Hudson, 3 N.C. App. 555, 165 S.E.2d 557 (1969), overruled on other grounds, Gibson v. Campbell, 28 N.C. App. 653, 222 S.E.2d 449 (1976).

No Such Right Existed at Common Law. - The right of recovery for death by wrongful act did not exist at common law, and rests entirely upon this section. Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216 (1912); Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307 (1925), overruled on other grounds, 300 N.C. 300, 266 S.E.2d 821 (1980); Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335 (1944); Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700 (1948); Lewis v. North Carolina State Hwy. & Pub. Works Comm'n, 228 N.C. 618, 46 S.E.2d 705 (1948); Bryant v. Atlantic C.L.R.R., 248 N.C. 43, 102 S.E.2d 393 (1958); Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966); Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977).

No right of recovery for death by wrongful act existed at common law. Colyar v. Atlantic States Motor Lines, 231 N.C. 318, 56 S.E.2d 647 (1949).

The right to maintain an action for wrongful death is purely statutory. - No such right existed at common law, and the provisions of this section authorizing the institution and maintenance of such an action are no more binding upon the courts than the provisions of this section which direct how the recovery in such action shall be distributed. Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947).

Such Right Is Purely Statutory. - The right of action for wrongful death is purely statutory. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, cert. denied, 278 N.C. 703, 181 S.E.2d 603 (1971); Burcl v. North Carolina Baptist Hosp., 47 N.C. App. 127, 266 S.E.2d 726 (1980), rev'd on other grounds, 306 N.C. 214, 293 S.E.2d 85 (1982); Nelson v. United States, 541 F. Supp. 816 (M.D.N.C. 1982).

In North Carolina the action for wrongful death exists only by virtue of this section. In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958); Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966).

In North Carolina a right of action to recover damages for wrongful death is given by this section and in this jurisdiction the action for wrongful death exists only by virtue of these statutes. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

Actions for wrongful death are creatures of statute. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968).

The right of action for wrongful death exists only by virtue of this section, which defines the right of action, and the basis on which damages may be recovered. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

A wrongful death action is a creature of statute and may be brought only as the authorizing statutes permit. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Because the right to an action for wrongful death rests entirely upon this section, the Wrongful Death Act, it must be asserted in conformity therewith. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

Construction. - This section is not penal but remedial in its nature, and it should be given such construction as will effectuate the intention of the legislature in enacting it. Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905); Hall v. Southern R.R., 149 N.C. 108, 62 S.E. 899 (1908); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3 (1977).

Preemption. - Where decedent was killed in automobile accident, Employee Retirement Income Security Act (ERISA) preempted the operation of North Carolina's wrongful death statute to the extent that the state law precluded operation of the terms of the "Acts of Third Parties" clause in the plan requiring reimbursement to plan. McInnis v. Provident Life & Accident Ins. Co., 21 F.3d 586 (4th Cir. 1994).

Application of Section to Actions Pursuant to 42 U.S.C. § 1983. - There is no federal statutory law governing the measure of damages in wrongful death actions brought pursuant to 42 U.S.C. § 1983, and, therefore, 42 U.S.C. § 1988 compels the use of the law of North Carolina: namely, this section. Bowling v. Oldham, 753 F. Supp. 588 (M.D.N.C. 1990).

The North Carolina wrongful death statute satisfies the two underlying policies of 42 U.S.C. § 1983, as it provides adequate relief for the estate of the deceased, and satisfies the policy of preventing abuses of power by state officials by the availability of punitive damages. Bowling v. Oldham, 753 F. Supp. 588 (M.D.N.C. 1990).

"Person" in former G.S. 28-173 construed to mean one who has become recognized as a person by being born alive. See Cardwell v. Welch, 25 N.C. App. 390, 213 S.E.2d 382, cert. denied, 287 N.C. 464, 215 S.E.2d 623 (1975); Yow v. Nance, 29 N.C. App. 419, 224 S.E.2d 292, cert. denied, 290 N.C. 312, 225 S.E.2d 833 (1976). But see DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987), allowing recovery for the wrongful death of a viable but unborn child.

For case calling for legislative action under former G.S. 28-173 if it was intended that wrongful death statute include unborn fetuses, see Cardwell v. Welch, 25 N.C. App. 390, 213 S.E.2d 382, cert. denied, 287 N.C. 464, 215 S.E.2d 623 (1975); Yow v. Nance, 29 N.C. App. 419, 224 S.E.2d 292, cert. denied, 290 N.C. 312, 225 S.E.2d 833 (1976). But see DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987), allowing recovery for the wrongful death of a viable but unborn child.

Municipalities Not Exempt from Section. - The plain, positive provisions of this section contain no basis for supposing that the Legislature intended to exempt municipalities therefrom. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985), aff'd, 316 N.C. 259, 341 S.E.2d 523 (1986).

This section does not regard the family relation, and is not for the purpose of compensating the families of persons killed by accident. Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191 (1900).

Right of Action a Property Right. - This section gives clear indication of the purpose of the legislature to impress upon the right of action the character of property as a part of the intestate's estate. Neill v. Wilson, 146 N.C. 242, 59 S.E. 674 (1907); In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

This section contemplates only one cause of action, and when the action is brought by the personal representative, the judgment is conclusive on other persons, and the right given by the statute is exhausted. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33 (1968).

Section Encompasses Loss of Consortium Claims. - The trial court properly dismissed plaintiff's claim brought in her individual capacity for loss of consortium based on the ground that the wrongful death statute encompasses loss of consortium claims, and any common law claim encompassed by the wrongful death statute should have been asserted under this section by the personal representative for the deceased. Keys v. Duke Univ., 112 N.C. App. 518, 435 S.E.2d 820 (1993).

The tort claim for "loss of consortium", no matter what damages may be recovered thereunder, is covered under the wrongful death statute, and plaintiff could not, therefore, bring an independent claim for loss of consortium in her action asserting a claim for wrongful death. Keys v. Duke Univ., 112 N.C. App. 518, 435 S.E.2d 820 (1993).

There is no separate cause of action in the parent to recover for loss of services of a minor child whose death occurs simultaneously with its injury. Gibson v. Campbell, 28 N.C. App. 653, 222 S.E.2d 449 (1976).

Suit by Parent in Individual Capacity for Expenses of Deceased Child Properly Dismissed. - Any common-law claim which is now encompassed by this section must be asserted under it, and accordingly it is proper to dismiss an action by the surviving mother of unemancipated minor children who died as a result of an automobile collision, in which action the mother sought recovery in her individual capacity of, inter alia, medical and funeral expenses incurred on behalf of the children. Boulton v. Onslow County Bd. of Educ., 58 N.C. App. 807, 295 S.E.2d 246 (1982).

Such Expenses Recoverable in Wrongful Death Suit. - Under common law a personal injury to minor child, proximately caused by negligence of another, gave rise to two distinct causes of action: one by the child for damages for the personal injury, and a second by the parent for, inter alia, expenses incurred for necessary medical treatment of the child. However, when the General Assembly legislates in respect to the subject matter of any common-law rule, the statute supplants the common law and becomes the public policy of this State. The General Assembly has provided that damages recoverable for death by wrongful act include, inter alia, expenses for care, treatment and hospitalization incident to the injury resulting in death and the reasonable funeral expenses of the decedent. Boulton v. Onslow County Bd. of Educ., 58 N.C. App. 807, 295 S.E.2d 246 (1982).

Where Deceased Is an Infant. - Under this section the administrator may sue for the death of an infant a few months old. Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191 (1900); Davis v. Seaboard Air Line R.R., 136 N.C. 115, 48 S.E. 591 (1904).

What Constitutes a Cause of Action. - It is entirely immaterial for the purpose of establishing a cause of action under the provisions of this section whether the act was wanton or cruel. Facts showing a legal duty and neglect thereof on the part of defendant with a resulting injury to the plaintiff are sufficient to constitute a cause of action. Western Union Tel. Co. v. Catlett, 177 F. 71 (4th Cir. 1910).

No Action Available. - Where a police officer's actions in shooting and killing the decedent as he approached the officer while brandishing a knife were reasonable as a matter of law, they could not be negligent or wrongful as required to support an action under this section. Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir. 1998).

Plaintiff must show failure of defendant to exercise proper care in performance of some legal duty which the defendant owed plaintiff's testator under the circumstances in which they were placed, and that such negligent breach of duty was the proximate cause of injury which produced death - a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the existing facts. Tysinger v. Coble Dairy Prods., 225 N.C. 717, 36 S.E.2d 246 (1945); Rogers v. Green, 252 N.C. 214, 113 S.E.2d 364 (1960); Harris v. Wright, 268 N.C. 654, 151 S.E.2d 563 (1966).

Negligence Per Se. - Trial court did not err in admitting testimony that decedent did not have motorcycle endorsement at time of accident. Violation of G.S. 20-7 is negligence per se. Ward v. McDonald, 100 N.C. App. 359, 396 S.E.2d 337 (1990).

Negligence Alone Does Not Create Cause of Action. - Negligence alone, without pecuniary injury resulting from such death, does not create a cause of action. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Harris v. Wright, 268 N.C. 654, 151 S.E.2d 563 (1966); Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Gross negligence is "something less than willful and wanton conduct," and includes "the absence of even slight care," "indifference to the rights and welfare of others," "negligence of an aggravated character." Cowan v. Brian Ctr. Mgt. Corp., 109 N.C. App. 443, 428 S.E.2d 263 (1993).

Effect of Contributory Negligence Upon Recovery. - G.S. 28A-18-2 provides for survivorship of only those claims that could have been brought by the decedent herself had she lived; when a wrongful death claim is being brought by the administrator of the decedent's estate, the claim is subject to the affirmative defense of contributory negligence. Davis v. Hulsing Enters., LLC, 2018 N.C. LEXIS 64, 810 S.E.2d 203 (2018).

Child Not a "Trespasser." - Child who was electrocuted when he entered power company's cabinet containing high voltage wires located on property on which the company had an easement, who had permission of the landowners to play on the property, was not a trespasser as that term has been defined by our case law, and thus the power company was not entitled to have its legal duty reduced. Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, cert. denied, 318 N.C. 281, 347 S.E.2d 462 (1986).

Joinder of Action for Wrongful Death of Viable Fetus. - The action for wrongful death of a viable fetus must be joined with any action based on the same facts brought by the decedent's parents. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987), reversing DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986).

Lack of Administrator for Fetus's Estate Not Grounds for Dismissal Where Clerk Unwilling to Issue Letters of Administration. - Cause of action for the wrongful death of the fetus was not subject to dismissal on grounds that it was not brought by the personal representative of the deceased as required by subsection (a), where the failure to bring this action in the name of the administrator of the estate was apparently due to the unwillingness of the clerk of court to issue letters of administration for a fetus's "estate." The existence of a cause of action for wrongful death is sufficient for the appointment of an administrator, and since a wrongful death action exists for a viable fetus, the clerk should have appointed an administrator to bring the action. Ledford v. Martin, 87 N.C. App. 279, 359 S.E.2d 505 (1987), cert. denied, 321 N.C. 473, 365 S.E.2d 1 (1988), overruled on other grounds, Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).

The right of action for wrongful death is limited to such as would, if the injured party had lived, have entitled him to an action for damages therefor. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

This section makes it a condition precedent to a right of action in a personal representative that the death of the intestate was caused by a wrongful act, neglect or default of the manufacturer "such as would, if the injured person had lived, have entitled him to an action for damages therefor." Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

The condition precedent, "such as would, if the injured person had lived, have entitled him to an action for damages therefor," to the maintenance of an action under this section does not, by its express terms, include a time limitation but, upon its face, relates to the nature of the "wrongful act, neglect or default" which caused the death and to the legal capacity of the decedent to sue therefor had he lived. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

The wrongful death action exists if and only if the decedent could have maintained an action for negligence or some other misconduct if the decedent had survived. Nelson v. United States, 541 F. Supp. 816 (M.D.N.C. 1982).

In determining whether any wrongful death action is maintainable, the Supreme Court has consistently analyzed the question in terms of whether the deceased, had he lived, would have had a claim against defendant for the injuries inflicted. If so, then the estate of the deceased may maintain an action for wrongful death; if not, then the action for wrongful death will not lie. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Theory of Liability Is Same as for Tortious Infliction of Personal Injury. - Although a wrongful death action may be a distinct cause of action from one for negligent infliction of personal injury, the theory or theories of liability and the operative facts from which liability arises are not different. Nelson v. United States, 541 F. Supp. 816 (M.D.N.C. 1982).

Apart from the measure of damages, recovery for wrongful death in North Carolina depends upon the same proof of actionable negligence or misconduct under the general rules of tort liability which would apply to an action strictly for personal injury. Nelson v. United States, 541 F. Supp. 816 (M.D.N.C. 1982).

Barred by Res Judicata. - Where a decedent's personal injury suit for asbestos exposure was dismissed after her death, res judicata barred a wrongful death and survivorship suit because it was part of the same transaction or occurrence since the North Carolina Wrongful Death Act, G.S. 28A-18-1 et seq., claim was dependent upon the decedent's personal injury claim. Taylor v. Norfolk S. Ry. Co., - F. Supp. 2d - (M.D.N.C. Feb. 6, 2015).

No Action Where Decedent Fully Compensated before Death. - Where the injured party has received in his lifetime full compensation for the injury which resulted in his death, a right of action arising from the same injury will not lie after his death for further damages for the benefit of his estate. Edwards v. Interstate Chem. Co., 170 N.C. 551, 87 S.E. 635 (1916).

Killing in Georgia of North Carolina Resident. - The wrongful death statute of Georgia is not so dissimilar from this section in scope, meaning, and practical application as to deprive the trial courts of this State of jurisdiction to hear and determine a cause for the negligent killing in the state of Georgia of a resident of this State. Rodwell v. Camel City Coach Co., 205 N.C. 292, 171 S.E. 100 (1933).

Right Must Be Asserted in Conformity with Section. - The right to maintain an action for damages for wrongful death must be asserted in conformity with this section. Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700 (1948); Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788 (1955).

Pleading Requirements. - While a request for damages based on a decedent's pain and suffering and hospital care could have been construed as invoking an action for survival, the plaintiff only intended to go forward with a wrongful death claim if the complaint stated a claim for wrongful death of the decedent and pled all the damages listed in G.S. 28A-18-2(b), with the exception of nominal damages, and there was no indication in the complaint that the damages were to be distributed to his estate as opposed to his heirs. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668 (2002), cert. denied, 356 N.C. 673, 579 S.E.2d 272 (2003).

Where decedent's daughter repeatedly requested that wrongful death action be brought, and offered to pay all expenses for it, but was confronted with alleged collusion and willful obstruction on the part of administratrix and attorney, and within the two-year statute of limitations period, filed action against administratrix, attorney and insurer alleging breach of fiduciary duties and collusion, her contributory negligence, if any, in failing to seek removal of administratrix, was not such as to warrant dismissal under G.S. 1A-1, Rule 12(b)(6). Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984).

Failure to List Possible Wrongful Death Action as Estate Asset Held Malpractice. - Attorney who was retained by decedent's administratrix (sister of decedent's husband) owed a duty to decedent's natural daughter to use reasonable care in representing the estate, and daughter's allegation that he violated that duty by failing to list possible wrongful death action against decedent's husband as an asset of decedent's estate, by continuing to represent the estate after administratrix also became the representative of decedent's husband when he committed suicide, and by colluding with other defendants, stated a cause of action in tort for attorney malpractice. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984).

This section controls over the provisions of the Workers' Compensation Act, G.S. 97-1 et seq. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968), aff'd on other grounds, 275 N.C. 229, 166 S.E.2d 649 (1969).

Workers' Compensation Act does not create two causes of action, one for the employee's estate and the other for the employer and insurance carrier. The right to bring action for damages for wrongful death is conferred by this section. The compensation act merely governs the respective rights of the employee's estate, the employer and the insurance carrier to maintain an action for damages against third parties. Groce v. Rapidair, Inc., 305 F. Supp. 1238 (W.D.N.C. 1969).

No Conflict with G.S. 97-10.2(f)(1)c. - There is no conflict in the language in this section which prohibits use of the wrongful death recovery to pay a debt of the decedent and the language in G.S. 97-10.2(f)(1)c which directs that a portion of the recovery be applied to the reimbursement of the employer for benefits paid under award of the Industrial Commission. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968), aff'd on other grounds, 275 N.C. 229, 166 S.E.2d 649 (1969).

If an employee's action would be barred by the Workers' Compensation Act, then a wrongful death action brought by the employee's representative is also barred. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186 (1988).

Complaint Barred by Workers' Compensation Act. - Wrongful death complaint alleging that defendant, decedent's employer, negligently required decedent to perform tasks which exposed decedent to known carcinogens, thereby causing decedent's cancer of the bladder and resulting death, came within the language of G.S. 97-53(13) and was barred by the Workers' Compensation Act. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186 (1988).

Liability to the general public of a host for the torts of his intoxicated guest. See Chastain v. Litton Sys., 694 F.2d 957 (4th Cir. 1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334 (1983).

Employer's Liability for Death Caused by Employee Who Became Intoxicated at Company Party. - See Chastain v. Litton Sys., 694 F.2d 957 (4th Cir. 1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334 (1983).

Claim Against Provider of Alcohol Barred by Decedent's Negligence. - Plaintiff's wrongful death claim against a provider of alcohol alleging wilful and wanton negligence for serving the visibly intoxicated decedent alcohol after being requested to refrain from serving him was barred by the decedent's own actions in driving his vehicle while highly intoxicated. Sorrells v. M.Y.B. Hospitality Ventures, 332 N.C. 645, 423 S.E.2d 72 (1992).

Trial court properly granted the hotel owners' motion to dismiss the husband's wrongful death claim where the decedent's consumption of alcohol and the owners' actions in serving the decedent rose to the same level of negligence, the decedent's resulting contributory negligence thereby barred the husband's common law dram shop claim. Davis v. Hulsing Enters., LLC, 370 N.C. 455, 810 S.E.2d 203 (2018).

Personal Representative Has Authority and Responsibility. - The personal representative who institutes a wrongful death action is not a mere figurehead or naked trustee but has authority as well as responsibility. First Union Nat'l Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965); Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972).

Authority to Compromise. - Ordinarily, an executor or administrator has the right to compromise any disputed or doubtful claim of his decedent provided he acts honestly and exercises the care of an ordinarily prudent person, and this rule is applicable to a purely statutory cause of action for wrongful death. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438 (1957).

An administrator has the right to compromise a disputed claim if he acts in good faith and exercises the care which an ordinarily sensible and prudent man would exercise in dealing with his own property under like circumstances. Forsyth County v. Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, cert. denied, 283 N.C. 752, 198 S.E.2d 722 (1973).

A covenant not to sue, procured by one tort-feasor, does not release the other from liability. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33 (1968).

Release of one joint tort-feasor ordinarily releases them all. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33 (1968).

Action Not Maintained Since Children Could Not Have Recovered For Injuries If They Had Lived. - The cause of action for the children's wrongful death, where the children were killed by their mother and her boyfriend as they were fleeing from police shortly before the truck they were in was blown up during the course of a gun battle and high speed chase with police, could not be maintained because the children could not have recovered for their injuries if they had lived, and the first requisite of a wrongful death action in this State is that the decedent could have recovered for his injuries if he had lived. Lynch v. North Carolina Dep't of Justice, 93 N.C. App. 57, 376 S.E.2d 247 (1989).

Action Against Pharmacist. - While a pharmacist has no duty to advise absent knowledge of the circumstances, once a pharmacist is alerted to specific facts and he or she undertakes to advise a customer, the pharmacist then has a duty to advise correctly; therefore, where plaintiff alleged, among other things, that her decedent "sought out and was relying upon the skill, judgment and expertise of defendant with respect to the safety of taking the drug Indocin given the fact that plaintiff's intestate suffered the aforementioned medical condition," she stated a claim upon which relief could be granted. Ferguson v. Williams, 92 N.C. App. 336, 374 S.E.2d 438 (1988).

Action Against Physician Barred by Settlement with Original Tort-Feasors. - Where a plaintiff institutes an action to recover damages for the wrongful death of his intestate against persons alleged to be solely responsible for intestate's injuries and death, and thereafter the action is compromised by the entry of a consent judgment for a substantial sum, the judgment is a bar to the plaintiff's right to maintain a subsequent action for the wrongful death of his intestate against a physician or surgeon for negligent treatment of the original injuries, such treatment being known to plaintiff when the first suit was filed. Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642 (1958).

Writ of Attachment May Issue. - A writ of attachment will issue under G.S. 1-440.1 to enforce the right created by this section. Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882 (1921).

Nonsuit. - In a civil action under this and the succeeding section to recover damages for alleged wrongful death, where issues of fact are raised which the jury alone may decide, it is error for the court to allow a motion for judgment as of nonsuit. Henson v. Wilson, 225 N.C. 417, 35 S.E.2d 245 (1945).

Nonsuit held proper in action for wrongful death resulting when intestate drove into the side of a train which had been standing at nighttime, blocking the crossing, for some 30 seconds prior to the injury, with its ground lights, its platform light, and cab lights burning. Morris v. Winston-Salem Southbound Ry., 265 N.C. 537, 144 S.E.2d 598 (1965).

The burden of proving actionable negligence in an action for damages for wrongful death grounded in negligence is, of course, on the party seeking recovery. But if the evidence, that offered by both plaintiff and defendant, construed in the light most favorable to the party with the burden of proof, is sufficient to make out a prima facie case of actionable negligence, a motion for nonsuit should be denied and the case submitted to the jury. Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677 (1968).

Directed Verdict. - In an action for wrongful death, a directed verdict for the defendant on the ground of contributory negligence should be granted when, and only when, the evidence, taken in the light most favorable to plaintiff, establishes the contributory negligence of plaintiff's intestate so clearly that no other reasonable inference or conclusion may be drawn therefrom. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Citizenship of Beneficiaries Is Controlling for Diversity Purposes. - When a resident ancillary administrator is required to represent the interests of noncitizen beneficiaries by virtue of the laws of the state in which the claim arose, and his duties are as limited as those imposed upon him by this section, the citizenship of the beneficiaries is controlling for diversity purposes. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

The citizenship of the administrator does not defeat diversity jurisdiction in an action under this section brought by a North Carolina ancillary administrator against North Carolina defendants to recover for the death of a nonresident for the benefit of nonresident distributees. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

Noncitizen Entitled to Federal Forum. - Diversity jurisdiction exists for the protection of the noncitizen who is obliged to sue or to be sued in the state of his adversary. It is for that reason that state statutes or decisions that require a noncitizen to appoint an in-state representative should not have the effect of depriving the noncitizen of the federal forum that Congress has provided him. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

Payment of Expenses of Suit from Assets of Estates. - With the 1985 amendment of subsection (a) of this section, the Legislature has chosen to allow reasonable and necessary expenses, excluding attorneys' fees, incurred in pursuing a wrongful death action to be paid from the assets of the deceased's estate. If there is any recovery from the wrongful death action, the recovery must first be applied to reimburse the estate for the expenses paid from its assets in pursuing the action. In re Estate of Proctor, 79 N.C. App. 646, 340 S.E.2d 138 (1986).

Prior to the 1985 amendment to subsection (a) of this section, there was no statutory authority for paying out of a decedent's estate the reasonable and necessary expenses incurred in pursuing a wrongful death action. Thus, on February 1, 1985, clerk properly denied petition seeking authorization of payment of litigation expenses out of decedent's estate, and superior court was correct in affirming the clerk's order. However, following the July 5, 1985 amendment there was nothing to prevent decedent's personal representatives from filing a new petition seeking to have those same expenses paid from the deceased's estate. In re Estate of Proctor, 79 N.C. App. 646, 340 S.E.2d 138 (1986).

Contributory negligence of decedent, who was operating his vehicle in an impaired condition in violation of G.S. 20-138.1, was a defense to a wrongful death claim under this section based on defendants' alleged negligence in selling alcohol to an intoxicated person. Clark v. Inn W., 89 N.C. App. 275, 365 S.E.2d 682, rev'd on other grounds, 324 N.C. App. 415, 379 S.E.2d 23 (1989).

Trial court properly granted summary judgment to a marina owner, a general contractor, and a subcontractor in administrators' G.S. 28A-18-2 wrongful death action, because the decedent's contributory negligence, in using an electric drill near water without ground fault circuit interrupter protection, barred the administrators' claims as a matter of law. Thorpe v. TJM Ocean Isle Partners LLC, 222 N.C. App. 262, 730 S.E.2d 268 (2012).

Effect of Medicare. - The Wrongful Death Act's $1,500 limitation on a health care provider's right to recover a decedent's medical expenses is preempted by Medicare's secondary payer provisions. Cox v. Shalala, 112 F.3d 151 (4th Cir. 1997).

Jury Issues Raised. - Personal representative's wrongful death and survivorship claims could be brought in the same suit and separate issues should have been presented to the jury on whether a nursing home's negligence caused the decedent's pre-death injuries and wrongful death; the nursing home's claim that a personal representative was required to delineate which of the decedent's pressure sores caused his death and which sores caused him pain and suffering prior to his death was rejected as if the jury determined that the decedent died of Alzheimer's disease, rather than from an infection from the pressure sores, it could still reasonably determine that the nursing home's negligence caused the pressure sores and that any or all of those sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Alternative Survivorship and Wrongful Death Claims. - Wrongful death and survivorship claims may be brought as alternative claims for the same negligent acts. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Survivorship and Wrongful Death Actions Properly Alleged. - Personal representative was entitled to proceed on both a survivorship claim and a wrongful death claim where he alleged that a nursing home's negligence resulted not only in the decedent's death, but also in injury, pain and suffering, and medical expenses prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), review denied, 361 N.C. 218, 642 S.E.2d 242 (2007).

Action Erroneously Brought Under Survivorship Statute. - Trial court properly granted summary judgment to defendant as to an insurance company's action under the survivorship statute, G.S. 28A-18-1, because the claim was based on a single negligent act of defendant, and thus the sole remedy available was under the wrongful death statute, G.S. 28A-18-2, and any wrongful death action was barred by the statute of limitations under G.S. 1-53(4). State Auto Ins. Co. v. Blind, 185 N.C. App. 707, 650 S.E.2d 25 (2007).

Admiralty. - Administrators' wrongful death action was governed by G.S. 28A-18-2 rather than admiralty law because the administrators' allegations against a marina owner, a general contractor, and a subcontractor were for violations of nonmaritime duties imposed by state law. Thorpe v. TJM Ocean Isle Partners LLC, 222 N.C. App. 262, 730 S.E.2d 268 (2012).

Applied in Williams v. GMC, 393 F. Supp. 387 (M.D.N.C. 1975); Pinkston v. Baldwin, Lima, Hamilton Co., 292 N.C. 260, 232 S.E.2d 431 (1977); Hinton v. City of Raleigh, 46 N.C. App. 305, 264 S.E.2d 777 (1980); Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 311 S.E.2d 559 (1984); Williams v. Odell, 90 N.C. App. 699, 370 S.E.2d 62 (1988); Ward v. McDonald, 100 N.C. App. 359, 396 S.E.2d 337 (1990); Locklear v. Nixon, 129 N.C. App. 105, 497 S.E.2d 310 (1998); Bailey v. Gitt, 135 N.C. App. 119, 518 S.E.2d 794 (1999).

Cited in Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); Sadler v. New Hanover Mem. Hosp., 432 F. Supp. 604 (E.D.N.C. 1977); Holt v. City of Statesville, 35 N.C. App. 381, 241 S.E.2d 362 (1978); Messer v. American Gems, Inc., 612 F.2d 1367 (4th Cir. 1980); Davis v. Piper Aircraft Corp., 615 F.2d 606 (4th Cir. 1980); Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295, 266 S.E.2d 818 (1980); Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C. 1984); McDowell v. Estate of Anderson, 69 N.C. App. 725, 318 S.E.2d 258 (1984); In re Ragan, 64 Bankr. 384 (Bankr. E.D.N.C. 1986); Woodson v. Rowland, 92 N.C. App. 38, 373 S.E.2d 674 (1988); State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989); Clark v. Inn W., 324 N.C. 415, 379 S.E.2d 23 (1989); Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991); Greer v. Parsons, 331 N.C. 368, 416 S.E.2d 174 (1992); Westinghouse v. Hair, 107 N.C. App. 106, 418 S.E.2d 532 (1992); Doe v. American Nat'l Red Cross, 837 F. Supp. 121 (E.D.N.C. 1992); Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276 (4th Cir. 1993); Jones v. Rochelle, 125 N.C. App. 82, 479 S.E.2d 231 (1996); Cissell v. Glover Landscape Supply, Inc., 126 N.C. App. 667, 486 S.E.2d 472 (1997); Estate of Darby v. Monroe Oil Co., 127 N.C. App. 301, 488 S.E.2d 828 (1997), cert. denied, 347 N.C. 397, 494 S.E.2d 602 (1997); Locklear v. Nixon, 129 N.C. App. 105, 497 S.E.2d 310 (1998); Friedland v. Gales, 131 N.C. App. 802, 509 S.E.2d 793 (1998); Olvera v. Edmundson, - F. Supp. 2d - (W.D.N.C. Sept. 21, 2001); Beyer v. N.C. Div. of Mental Health, - F. Supp. 2d - (W.D.N.C. Oct. 16, 2001); In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779; McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003); Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004); In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005); Beck v. Beck, 175 N.C. App. 519, 624 S.E.2d 411 (2006); Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360 (2010); Shera v. N.C. State Univ. Veterinary Teaching Hosp., 219 N.C. App. 117, 723 S.E.2d 352 (2012); Murphy v. Hinton, 242 N.C. App. 95, 773 S.E.2d 355 (2015).

Parmley v. Barrow, 253 N.C. App. 741, 801 S.E.2d 386 (2017).

II. LIMITATION OF THE ACTION.

Two-year Limitation. - The period prescribed for the commencement of an action for wrongful death under this section is two years. High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282 (1967), overruled on other grounds, Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991).

Former Time Limit Was Condition Precedent Rather than Statute of Limitation. - Up to the time of the amendments of 1951 to the former wrongful death statute and G.S. 1-53, it had consistently been held that the time limitation in this section was not a statute of limitations, but rather a condition precedent to maintenance of an action. The effect of the amendments was to remove from the Wrongful Death Act the time limitation and make the act subject to the statute of limitations of two years in G.S. 1-53. McCrater v. Stone & Webster Eng'r Corp., 248 N.C. 707, 104 S.E.2d 858 (1958).

Since the enactment of the 1951 amendment to the former wrongful death statute, the time within which a wrongful death action may be commenced is not an integral part of the right of action or a condition precedent thereto but is an ordinary (two-year) statute of limitations under G.S. 1-53(4). Stamey v. Rutherfordton Elec. Membership Corp., 249 N.C. 90, 105 S.E.2d 282 (1958).

Prior to the enactment of G.S. 1-53(4), and the 1951 amendment to the former wrongful death statute, the institution of an action for wrongful death within one year after such death was a condition precedent to maintaining the action. All other requirements of the section were also strictly construed. The amendment removed the time limitation as a condition annexed to the cause of action and made it a two-year statute of limitations. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963).

Section 1-53 and the former wrongful death statute were amended in 1951 so as to remove from the latter section the provision previously contained therein fixing the period of time in which an action for damages for wrongful death must be instituted and so as to make such action subject to the two-year statute of limitations set forth in G.S. 1-53. The effect of the amendment was to make the time limitation a statute of limitations and no longer a condition precedent to the right to bring and maintain the action. Kinlaw v. Norfolk S. Ry., 269 N.C. 110, 152 S.E.2d 329 (1967).

Delay Less Than Period Is Not Laches of Itself. - Mere delay of petitioner in commencing his action for damages for wrongful death, which does not amount to a bar of the statute of limitations, does not of itself constitute laches, where the delay has not worked an injury or prejudice or disadvantage to the administratrix c.t.a. of the estate, and the clerk has found no facts that petitioner's delay would work prejudice or injury to the estate of the deceased. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

Action by Ancillary Administrator. - The fact that an action for wrongful death is brought by an ancillary administrator appointed in this State does not constitute the action accruing to a resident of this State within the meaning of the proviso to G.S. 1-21. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

Where a complaint to recover damages under a state wrongful death act was timely filed by an ancillary administrator appointed by a state court without jurisdiction to do so, the complaint could be amended under G.S. 1A-1, Rule 17(a) at a time when a new suit would be barred so as to allege the subsequent effective appointment of the same person as ancillary administrator by a state court having jurisdiction. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971).

Amendment Not Introducing New Cause of Action. - Where, in an action for wrongful death, the complaint discloses that the action was instituted within the statutory period, but plaintiff is thereafter permitted to amend the defective statement of his good cause of action by particularizing the acts of negligence complained of, the amendment does not introduce a new cause of action, and the cause is not barred by this section. Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43 (1949).

Amendment or Substitution of Proper Party Relates Back. - Amendment or substitution of the proper party under G.S. 1A-1, Rule 15(a) and (c) and G.S. 1A-1, Rule 17(a), may be made at any time before hearing to cure a lack of letters of administration, and later appointments of this nature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971).

Action Commenced upon False Allegation of Appointment Cannot Be Validated Following Expiration of Statute of Limitations. - A party who has not been appointed as administratrix and has not offered herself for qualification may not, upon a false allegation that she has qualified as administratrix, commence an action for wrongful death and, following the expiration of the statute of limitations, validate that action by a subsequent appointment as administratrix. Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969).

Action Commenced under Mistaken Belief of Appointment May Be Validated by Subsequent Appointment. - Where a widow institutes an action as administratrix, for damages for the wrongful death of her husband, under the mistaken belief that she had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to show that she was appointed administratrix after the expiration of the statute of limitations applicable to such action, the amended petition will relate back to the date of the filing of the petition, and the action will be deemed commenced within the time limited by statute. Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969).

Widow's belated qualification as administratrix did not relate back to the date of the filing of the suit when no attempt was previously made to qualify as administrator in North Carolina. Johnson v. Wachovia Bank & Trust Co., 22 N.C. App. 8, 205 S.E.2d 353 (1974).

Medical Malpractice. - Four year statute of repose for medical malpractice actions, G.S. 1-15(c) (2003), applied to wrongful death cases; a wrongful death medical malpractice suit filed within two years of decedent's death, but more than four years after doctor's last act, was properly dismissed as untimely. Udzinski v. Lovin, 358 N.C. 534, 597 S.E.2d 703 (2004).

Wrongful death suit was stayed pending binding arbitration because plaintiff, as administrator of a decedent's estate, failed to establish any contract defenses that would have otherwise invalidated the arbitration agreement entered into by the decedent regarding her medical treatment for benign liver tumors; because decedent's ability to recover was limited in form to arbitration by her execution of the agreement with defendants, her estate was equally bound by the arbitration agreement. Wilkerson v. Nelson, 395 F. Supp. 2d 281 (M.D.N.C. 2005).

III. PARTIES TO THE ACTION.

.

Decedent's personal representative is the proper party plaintiff in a wrongful death action. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

Suit Must Be Brought by Personal Representative. - The personal representative of the deceased, his executor or administrator, etc., can alone maintain an action for damages for his wrongful death under the provisions of this section. Hanes v. Southern Pub. Utils. Co., 191 N.C. 13, 131 S.E. 402 (1926). See Hood v. AT & T Co., 162 N.C. 70, 77 S.E. 1096 (1913); White v. Holding, 217 N.C. 329, 7 S.E.2d 825 (1940).

While any sum recovered is not a part of decedent's estate, such sum can only be recovered in the name of the personal representative, and must be distributed under laws of intestacy in this State. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700 (1946), citing Neill v. Wilson, 146 N.C. 242, 59 S.E. 674 (1907); Hines v. Foundation Co., 196 N.C. 322, 145 S.E. 612 (1928).

Under this section, the only person who can sue is the personal representative of the deceased. Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183 (1951).

The right of action conferred by this section vests in the personal representative of the deceased. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966); Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968); Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972).

Action for wrongful death may be brought only by the executor, administrator, or collector of the decedent. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); First Union Nat'l Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965); Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972); Merchants Distrib., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436 (1972); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973); Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

The right of action under this section is for the personal representative of the deceased only. The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased. Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972).

Nobody other than the executor, administrator, or collector of an estate can maintain an action for wrongful death. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, cert. denied, 278 N.C. 703, 181 S.E.2d 603 (1971).

Under the Wrongful Death Act, the administrator of an intestate, or the executor of one who dies testate, may institute an action for wrongful death; and he does so as the representative of the estate. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

In His Official Capacity. - The statute requires the suit to be brought by the administrator in his official and not in his private or individual capacity. He must sue as administrator. Hall v. Southern R.R., 146 N.C. 345, 59 S.E. 879 (1907).

The personal representative alone can maintain the action, and only in his official capacity. He sues in his own right and not en autre droit. McCoy v. Atlantic Coast Line R.R., 229 N.C. 57, 47 S.E.2d 532 (1948). See Christian v. Atlantic & N.C.R.R., 136 N.C. 321, 48 S.E. 743 (1904).

Widow, as such, has no right of action for death of her husband. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963).

Widow Cannot Maintain Action. - Under this section an action cannot be maintained by a widow as such, but must be brought by the personal representative of the deceased. Bennett v. North Carolina R.R., 159 N.C. 345, 74 S.E. 883 (1912); Craig v. Suncrest Lumber Co., 189 N.C. 137, 126 S.E. 312 (1925).

Spouse Cannot Maintain Action for Death of Spouse. - A husband as such cannot sue for the wrongful death of his wife. Hood v. AT & T Co., 162 N.C. 70, 77 S.E. 1096 (1913).

Parent Cannot Maintain Action. - A father cannot maintain an action in his individual capacity for the wrongful death of his daughter resulting from seduction. Scarlett v. Norwood, 115 N.C. 284, 20 S.E. 459 (1894).

A father cannot maintain an action in his individual capacity for the death of his son. Killian v. Southern R.R., 128 N.C. 261, 38 S.E. 873 (1901).

Action by the personal representative of deceased stillborn child was not barred by the release executed by child's parents, as the release by its terms bound only themselves and their heirs and assigns as to their personal claims and did not purport to settle or affect a claim for the child's wrongful death, and since under North Carolina law the parents, though the child's next of kin, had no authority to either assert or settle a claim for the child's wrongful death; only the child's personal representative had that authority. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, aff'd, 331 N.C. 368, 416 S.E.2d 174 (1992).

Action by One Not Personal Representative Should Be Dismissed. - If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed, and a separate and independent action instituted by such representative. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); Merchants Distrib., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436 (1972).

If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, cert. denied, 278 N.C. 703, 181 S.E.2d 603 (1971).

Court Has No Authority to Convert It to New Action by Admission of Party. - The court has no authority, over objection, to convert a pending action for wrongful death which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963).

Action Commences from Time Personal Representative Joined. - Should the personal representative be permitted to become a party to an unauthorized action for wrongful death, the action is deemed to have been commenced only from the time he became a party. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963).

The real party in interest in an action under this section is not the administrator, but the beneficiary under the statute for whom the recovery is sought. Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947); In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958).

Although an action for wrongful death must be brought by the personal representative of the deceased, the personal representative is not the real party in interest and the action does not accrue in his favor. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967).

The personal representative of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971).

In a wrongful death action, the real parties in interest were the beneficiaries as defined in the Wrongful Death Act, who were the same persons who would have received property had the decedent died intestate; where a widow, who was the decedent's sole intestate beneficiary, had abandoned the decedent before his death, she was not entitled to a wrongful death recovery, and since the remaining beneficiaries did not succeed to a full 100 percent, but only received their original percentage, there were no beneficiaries to the wrongful death claim. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668 (2002), cert. denied, 356 N.C. 673, 579 S.E.2d 272 (2003).

Trial court erred in granting a city's motion to dismiss an administratrix's wrongful death action on the ground that it was barred by the statute of limitations, G.S. 1-53(4), because an application for an extension of the time to file the complaint pursuant to N.C. R. Civ. P. 3 gave the city notice that the lawsuit involved the death of the decedent when fire department employees allegedly failed to provide appropriate emergency care, and the administratrix's participation in the lawsuit once she became administratrix was sufficient to ratify the filing of the summons and application for extension of time; under N.C. R. Civ. P. 17(a), that ratification related back to the filing of the summons, rendering the wrongful death action timely. Estate of Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428 (2009).

Necessity for Proof Where Plaintiff's Capacity Denied. - Nonsuit is properly entered in an action for wrongful death when plaintiff's allegation that she was duly qualified and acting administratrix of the deceased is denied in the answer and plaintiff offers no evidence in support of her allegation. Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544 (1959).

False Allegation of Appointment Cannot Be Validated by Subsequent Appointment. - One who has never applied for letters of administration or who, having applied, has no reasonable grounds for believing that he had been duly appointed, cannot institute an action for wrongful death, or any other cause, upon a false allegation of appointment and thereafter validate that allegation by a subsequent appointment. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969).

Amendment to Substitute Proper Party Allowed. - Under G.S. 1A-1, Rule 15(a) and (c), and G.S. 1A-1, Rule 17(a), a lack of letters of administration may be cured, and an objection to want of capacity to sue may be avoided by amendment or by substitution of the proper party at any time before hearing. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971).

A cause of action under this section is sufficient for the appointment of an administrator. Vance v. Southern R.R., 138 N.C. 460, 50 S.E. 860 (1905).

As to appointment of ancillary administrator, see Merchants Distrib., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436 (1972).

Foreign administrator lacks capacity to sue in a wrongful death action in this State. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Where a deceased has left a will naming an executor, and disposing of all his property, the right of action for his wrongful death must be by the executor named. Hood v. AT & T Co., 162 N.C. 70, 77 S.E. 1096 (1913).

Complaint of Unqualified Administratrix Held Demurrable. - Where an action for wrongful death was instituted in this State by an unqualified administratrix, the defect could be taken advantage of by demurrer, since such plaintiff did not have legal capacity to sue and thus the complaint did not state facts sufficient to constitute a cause of action. Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673 (1940), cert. denied, 312 U.S. 684, 61 S. Ct. 612, 85 L. Ed. 1122 (1941).

Executor May Not Be Joined as Defendant. - In a wrongful death action, a motion by the plaintiff, who was the adopted daughter of the decedent, that the executor of the estate of the decedent be joined as a defendant was denied because the executor is not a proper party to be joined as a defendant in an action which he alone by statute is authorized to commence. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, cert. denied, 278 N.C. 703, 181 S.E.2d 603 (1971).

Action by Representative of Employee Covered by Workers' Compensation. - Although an administratrix of a deceased employee who has received compensation for the employee's death under the provisions of the Workers' Compensation Act is thereby barred from prosecuting any other remedy for the injury, she may, under this section, pending the hearing before the Industrial Commission, institute an action against a third person whose negligent acts caused the death of the intestate, and where the insurance carrier has paid the compensation later awarded, it is subrogated to the rights of the employer and may maintain the action against such third person in the name of the administratrix. Phifer v. Berry, 202 N.C. 388, 163 S.E. 119 (1932).

Since the North Carolina Workers' Compensation Act expressly provides that the subrogated right of action against the third person tort-feasor in favor of the insurance carrier paying compensation for which the employer is liable must be maintained in the name of the injured employee or his personal representative, the act does not change or modify the requirement of this section that an action for wrongful death must be maintained by the administrator of the deceased, and the insurance carrier cannot maintain the action for wrongful death in its own name against the third person tort-feasor. Whitehead v. Branch, 220 N.C. 507, 17 S.E.2d 637 (1941). See also Brown v. Southern R.R., 202 N.C. 256, 162 S.E. 613 (1932).

The administrator of an employee within the Workers' Compensation Act cannot sue the employer for the wrongful death of the employee since the employee could not have sued the employer for his injury had he lived. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

Action by Child Born Alive. - Since the child must carry the burden of infirmity that results from another's tortious act, it is only natural justice that it, if born alive, be allowed to maintain an action on the ground of actionable negligence. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

Prenatal Death of Viable Child. - This section allows recovery for the death of a viable but unborn child. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987), reversing DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986).

The Supreme Court's holding in DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987), permitting an action to recover for the destruction of a viable fetus en ventre sa mere, could be applied retroactively to an action commenced before DiDonato was decided. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909 (1988), aff'd, 327 N.C. 283, 395 S.E.2d 85 (1990).

The definition of "viability" intended by the Supreme Court in DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987), is simply the common law definition of fetal capability to live independently of the mother. Although there is apparently no clear medical consensus as to the specific gestational age at which this capability is currently achieved, a gestational range of 20 to 26 weeks has been suggested. However, the determination of a fetus's viability is a question of fact. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909 (1988), aff'd, 327 N.C. 283, 395 S.E.2d 85 (1990).

Action by Administrator of Unemancipated Child Against Parents. - An unemancipated child living with his parents may not maintain an action in tort against them, nor can the administrator of the child recover damages against them for the child's wrongful death, as this section gives a right of action for wrongful death only where the injured party, if he had lived, could have maintained such action. Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835 (1931); Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788 (1955).

The administrator of an unemancipated minor child killed by the negligence of his parent has no cause of action against the parent for the wrongful death of his intestate. Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19 (1964); First Union Nat'l Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965).

The right of action for wrongful death is limited to such as would, if the injured party had lived, have entitled him to an action for damages therefor. Hence, the administrator of an unemancipated child whose death is caused by the negligence of his parent has no cause of action against the parent for the wrongful death of the child because such child, if he had lived, would have had no cause of action against the parent on account of his injuries. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966).

The administrator of an unemancipated minor child may not bring an action against the administrator of its father for damages for the wrongful death of such child caused by the ordinary negligence of the deceased father. Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972).

Motor Vehicle Cases. - Except as G.S. 1-539.21 now provides, the administrator of an unemancipated minor child cannot bring an action for wrongful death against the child's negligent parent. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180, 230 S.E.2d 405 (1976).

The administrator of a deceased minor's estate may maintain an action on the dead child's behalf for wrongful death against the negligent parent-driver of the vehicle through this section and G.S. 1-539.21 which abolished parent-child immunity in motor vehicle cases. Carver v. Carver, 55 N.C. App. 716, 286 S.E.2d 799, cert. denied, 305 N.C. 584, 292 S.E.2d 569 (1982), rev'd on other grounds, 310 N.C. 669, 314 S.E.2d 739 (1984).

It is not G.S. 1-539.21 standing alone which abrogates parental immunity in wrongful death actions arising out of the operation of motor vehicles; it is G.S. 1-539.21 and this section, read in pari materia, which bring about this result. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

As G.S. 1-539.21 has abolished the doctrine of parental immunity in personal injury and property damage cases arising out of a parent's operation of a motor vehicle, the doctrine is no longer a bar to wrongful death actions by the deceased child's estate which likewise arise out of a parent's operation of a motor vehicle. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

When parental immunity would not have barred a personal injury action brought by the deceased child had he lived, it likewise does not bar a wrongful death action brought by his estate. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Action by Representative of Parent Against Unemancipated Child. - Neither a parent nor his personal representative has an action for wrongful death against an unemancipated child or his representative. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966).

Action by Administrator of Wife Against Husband. - If a husband's negligence results in the death of his wife, her personal representative may maintain an action against him for her wrongful death. Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965).

If a wife's death is caused by the actionable negligence of her husband, this section creates and authorizes an action by her personal representative to recover for her wrongful death. First Union Nat'l Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965).

Since G.S. 52-5 provides that an injured wife has a cause of action against her husband for damages for personal injury, under the provisions of this section the administrator of her estate may maintain an action for wrongful death when she does not survive. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

Action Against Estate of One Causing Wrongful Death. - Where a person is alleged to have caused the death of another by his wrongful act, neglect, or default, and suit has been brought against him and is pending at his death within one year after the wrongful death caused by him, an action will lie against the executor and administrator of the deceased defendant under the provisions of this section. Tonkins v. Cooper, 187 N.C. 570, 122 S.E. 294 (1924).

When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor and the person that would have been so liable dies, or is killed at the same time, then the action for damages for wrongful death survives the death of the tort-feasor against his executor or administrator. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

Right to Have Discharge of Tort-Feasor's Administratrix Set Aside. - An administrator who institutes action for the wrongful death of his intestate within the statutory time against the estate of the deceased tort-feasor is entitled to have the order of the clerk discharging the administratrix of the deceased tort-feasor set aside by motion in the cause upon showing a policy of liability insurance in the hands of the administratrix of the deceased tort-feasor available for the payment of the claim. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

Joinder of Employer with Employee. - Where the death is caused by the negligence of an employee while acting within the scope of his authority the employer may be joined as a defendant under the doctrine of respondeat superior. Brown v. Southern R.R., 202 N.C. 256, 162 S.E. 613 (1932).

Joinder of Joint Tort-Feasor as Party Defendant. - One of several defendants, in an action for wrongful death arising out of a joint tort, may have still another joint tort-feasor brought in and made a party defendant for the purpose of enforcing contribution, although plaintiff's right of action against such other tort-feasor, originally subsisting, has been lost by the lapse of time. Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736 (1943).

Where plaintiff sues defendant under this section, alleging that her intestate was killed by his negligence, defendant may not join as a joint tort-feasor under former G.S. 1-240 a railway company by which the plaintiff's intestate was employed in interstate commerce. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335 (1944).

In a suit under the Federal Employers' Liability Act against defendant railroad, plaintiff was not permitted to join an additional defendant tort-feasor since there was no common legal right in the actions against the two. Bryant v. Atlantic C.L.R.R., 248 N.C. 43, 102 S.E.2d 393 (1958).

Municipalities Not Exempt from Section. - The plain, positive provisions of this section contain no basis for supposing that the Legislature intended to exempt municipalities therefrom. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985), aff'd, 316 N.C. 259, 341 S.E.2d 523 (1986).

A wrongful death action may be maintained against a municipal corporation. Jackson v. Housing Auth., 316 N.C. 259, 341 S.E.2d 523 (1986).

Actions Against County Employees. - Plaintiff's complaint, claiming that social services employees defendants' negligent failure to investigate claims of child abuse and neglect, coupled with their failure to remove her son from the custody of his abusive father caused her son's death, contained allegations pertaining only to the defendants' actions or inactions in their official capacities with county department of social services and that defendants were entitled to judgment based on governmental immunity. Whitaker v. Clark, 109 N.C. App. 379, 427 S.E.2d 142, cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993).

IV. DISTRIBUTION OF RECOVERY.

.

The North Carolina law is materially different from that of most states in that distribution is made, not to designated classes, but in accordance with the statute of distribution. McCoy v. Atlantic C.L.R.R., 229 N.C. 57, 47 S.E.2d 532 (1948).

Section Governs Nature and Distribution of Recovery. - The nature and distribution of whatever recovery is obtained is governed by the provisions of this section. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Distribution as if Decedent Died Intestate. - In the enactment of this section, the legislature intended that the proceeds of a recovery, or settlement, in an action for wrongful death shall be distributed to the same persons, and in the same proportionate shares, as the personal property of the decedent, remaining after the payment of all debts and other claims and expenses of administration, would be distributed if the decedent died intestate. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Where decedent's ex-spouse abandoned her interest in the decedent's estate at the time of death, decedent's siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent's sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

Intestate Succession Act as Modified by Chapter 31A Intended. - When the legislature, in this section, provided that the proceeds of an action for wrongful death "shall be disposed of as provided in the Intestate Succession Act," and when it provided in G.S. 97-40 that the order of priority among claimants to death benefits payable under the Workers' Compensation Act "shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate," it had in mind the same law; i.e., the Intestate Succession Act as modified by Chapter 31A, entitled, "Acts Barring Property Rights." Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Section 31A-2 must be deemed a part of the Intestate Succession Act and a modification of G.S. 29-15(3), as fully as if it had been written thereinto or specifically designated as an amendment thereto. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

North Carolina's wrongful death statute mandates that wrongful death proceeds be distributed as provided in the Intestate Succession Act, G.S. 29-1 et seq., and they are therefore subject to G.S. 31A-2, under which an abandoning parent is precluded from sharing in such proceeds arising from the death of his or her child. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

Construction with Workers' Compensation Act. - Right for decedent's estate to bring an action against the third-party tortfeasors, was conferred by G.S. 28A-18-2; however, the relative rights between decedent's estate and respondent employer and its insurer were governed by G.S. 97-10.2. Parker v. C.C. Mangum Co. (In re Estate of Bullock), 188 N.C. App. 518, 655 S.E.2d 869 (2008).

When Distribution in Accordance with Subsection (a) Not Appropriate. - Distribution of the recovery in accordance with subsection (a), although appropriate when the recovery is computed on the basis of the loss to the estate, is not appropriate when the recovery is based largely on losses suffered by particular beneficiaries. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Action Not Abated upon Death of Primary Beneficiary. - Although the Wrongful Death Act was amended drastically in some respects in 1969, there was absolutely no change in the basic portions allowing the action and providing for the disposition of the recovery. There is nothing in the amended statute which would, in any way, indicate any intent on the part of the legislature that a wrongful death action should abate upon the death of the primary beneficiary pending determination of the action. Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471 (1979).

Recovery Held in Trust. - The administrator holds the amount recovered in trust for those that may be entitled thereto as distributees. Baker v. Raleigh & Gaston R.R., 91 N.C. 308 (1884); Avery v. Brantley, 191 N.C. 396, 131 S.E. 721 (1926); In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958).

In receiving funds paid in settlement of a wrongful death claim a personal representative of a decedent's estate is not acting for the estate but as the trustee for the beneficiaries under the law. In re Estate of Below, 12 N.C. App. 657, 184 S.E.2d 378 (1971).

A personal representative does not derive any right, title, or authority from his intestate, but he sustains more the relation of a trustee in respect to the fund he may recover for the benefit of those entitled eventually to receive it, and he will hold it when recovered actually in that capacity, though in his name as executor or administrator. In re Estate of Below, 12 N.C. App. 657, 184 S.E.2d 378 (1971).

Trier of fact must be apprised of those who are going to share in the recovery in ascertaining the amount of damages recoverable under subdivision (b)(4) of this section, for it is only the losses suffered by these persons as a result of decedent's death which may be taken into account in assessing these damages. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Existence of Beneficiaries Not Condition Precedent. - The existence of persons who would have been entitled to the recovery under former G.S. 28-149 (now see G.S. 29-1 et seq.) was not a condition precedent to the right to bring the action. The purpose of the section is to give the action irrespective of who may become beneficiaries of the recovery. Warner v. Western N.C.R.R., 94 N.C. 250 (1886). See Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947); McCoy v. Atlantic C.L.R.R., 229 N.C. 57, 47 S.E.2d 532 (1949), holding that evidence as to the number of children left is inadmissible.

Recovery, if negligence is proved, is by the decedent's personal representative and is not conditioned upon the decedent's leaving dependents or beneficiaries of his estate. Abernethy v. Utica Mut. Ins. Co., 373 F.2d 565 (4th Cir. 1967).

The right to sue granted by this statute is not conditioned upon who may be the ultimate beneficiary or beneficiaries of a recovery. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

Complaint Need Not Allege That Intestate Left Heirs. - The damages when recovered are not to be simply distributed, but disposed of as provided in case of intestacy, and the complaint need not allege that the intestate left heirs. Warner v. Western N.C.R.R., 94 N.C. 250 (1886).

Children as Beneficiaries. - The fortuitous circumstance that those entitled to the recovery under the Intestate Succession Act happened to be the children rather than collateral kin of the decedent is not germane to the administrator's right of action. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

Evidence of the decedent's dependents or beneficiaries is irrelevant and inadmissible. Abernethy v. Utica Mut. Ins. Co., 373 F.2d 565 (4th Cir. 1967).

Certain liability is imposed for death, and that liability is exclusive. No other responsibility is left which springs from the occurrence upon which liability rests - death - and the effect of the compensation as a satisfaction of all other claims is in no way limited or impaired by the circumstances of the identity of the persons to whom it is paid or because in a given case no one survives to take advantage of the statute. Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966).

When Rights of Distributees Fixed. - Under this section the rights of the distributees are fixed as of the time when the intestate died. Neill v. Wilson, 146 N.C. 242, 59 S.E. 674 (1907). See Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947).

Two Rights of Action Recognized. - The right of an injured person to sue for personal injuries of any kind is entirely separate and distinct from the right of the personal representative to sue under authority of the wrongful death statute. Any damage sustained by such person during his lifetime is personal to that person and, if proximately caused by the wrongful act of another, could be recovered by him. If this right of action survived his death, the recovery would be an asset of his estate to be administered as any other personal property owned and possessed by decedent at the time of his death. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946).

While both the right of action for the recovery of consequential damages sustained between date of injury and date of death, and the right of action to recover damages resulting from such death, have as basis the same wrongful act, there is no overlapping of amounts recoverable. But such consequential damages as flow from the wrongful act would be recoverable by the personal representative; those sustained by the injured party during his lifetime, for benefit of his estate, and those resulting from his death, for benefit of his next of kin, determinable upon separate issues. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946).

Distribution of Federal Action Proceeds. - The proceeds from a federal court action instituted by the decedent's personal representative were for damages related to his wrongful death, not damages for pain and suffering unrelated to his death, and therefore should have been distributed according to the laws of intestate succession; although the funds were not characterized as wrongful death benefits in the settlement agreement, the federal court record supported such a characterization. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Creditor Has No Claim against Wrongful Death Funds. - Where the funds obtained by compromise settlement are for damages recoverable for death by wrongful act, the plaintiff creditor has no enforceable claim against these funds or any portion of them. Forsyth County v. Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, cert. denied, 283 N.C. 752, 198 S.E.2d 722 (1973).

Recovery Not Assets of Deceased's Estate. - The provision that the recovery is not to be applied as assets in the payment of debts or legacies extends to creditors of the intestate and not to creditors of the distributees. Neill v. Wilson, 146 N.C. 242, 59 S.E. 674 (1907).

Damages for a wrongful death are not assets of the estate available to creditors, but are to be disposed of according to the statute of distribution. Hines v. Foundation Co., 196 N.C. 322, 145 S.E. 612 (1928).

The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased, and the recovery is not assets in the usual acceptation of the term. Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952); In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958).

Proceeds recovered under the wrongful death statute are not a part of a decedent's estate, and in dealing with these funds neither the clerk nor the estate's personal representative is administering the estate of a decedent. In re Estate of Below, 12 N.C. App. 657, 184 S.E.2d 378 (1971).

The amount recovered is not a general asset of the estate, but the personal representative shall dispose of it as provided in this section and the Intestate Succession Act. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971).

The recovery in an action for wrongful death created by and based on this section is not a general asset of the decedent's estate. It is not subject to the payment of his debt, nor could the decedent by will or otherwise have diverted any portion of such recovery from the persons who would be entitled thereto under the Intestate Succession Act. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Proceeds recovered in a wrongful death action do not constitute part of the estate of the deceased generally except for certain limited purposes. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

But Treated as Assets for Medical and Burial Expenses. - A cause of action for wrongful death, being conferred by statute at death, could never have belonged to the deceased. A recovery resulting from such cause of action is therefore not an asset of the deceased's estate, although by virtue of the specific provisions of this section it is treated as an asset with respect to burial expenses and certain hospital and medical costs. In re Estate of Below, 12 N.C. App. 657, 184 S.E.2d 378 (1971).

Amounts received in a wrongful death action are assets at least to the extent of funeral and limited medical expenses. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354 (1984).

Formerly, Payment of Hospital and Medical Expenses Was Unauthorized. - See In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964).

Now Such Payment Is Limited by This Section. - See In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964).

Not Subject to Widow's Year's Support. - See Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216 (1912).

Contributory Negligence of One Beneficiary. - In an action to recover for wrongful death of a 2 1 / 2 -year-old child, contributory negligence on the part of its mother is a bar to so much of the recovery as would accrue to her as a beneficiary of the child's estate, but negligence of the child's mother will not be imputed to the child's father, and is no bar to the recovery of the amount which would inure to his benefit as beneficiary of the child's estate. Pearson v. National Manufacture & Stores Corp., 219 N.C. 717, 14 S.E.2d 811 (1941).

Statutory Beneficiary Not Entitled to Share in Recovery for Death Caused by His Negligence. - In cases instituted to recover damages for wrongful death, no beneficiary under the statute for whom recovery is sought will be permitted to enrich himself by his own wrong. The right of a person otherwise entitled to receive the money paid for wrongful death, or to share in the distribution of such a sum paid, will be denied where the death of the decedent was caused by such person's negligence. In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958).

The court will look beyond the parties to the suit and prevent a beneficiary from obtaining any sum by way of recovery in a death by wrongful act where his own wrong had brought about the death. Miller v. Perry, 307 F. Supp. 633 (E.D.N.C. 1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972).

Where it is a husband's wrongful act which caused the death of his wife intestate, he may not share in a recovery. Should the jury return a verdict in favor of the administrator of her estate, the court will enter judgment for only two thirds of the amount of the verdict. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).

In an action by an administrator under the Wrongful Death Act, where a husband caused the death of his wife, the award must be reduced by the statutory share of the wrongdoer. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

Intestate was killed in a collision while riding as a passenger in an automobile owned and driven by her son. Intestate's administrator and the son's insurer effected a settlement whereby the insurer paid the administrator a sum of money in consideration of the release by the administrator of all claims and demands against the son and the insurer arising out of the accident. There was no finding of fact that the son was negligent, or that he knew of the settlement, and the release stated that all parties released denied liability; however, the son, although he alleged in his answer that he was not negligent and that the accident was caused solely by the negligence of the driver of the other automobile did not allege that he had brought suit or made any claim or demand against such driver for damage to his automobile, and offered no evidence at the hearing. It was held that public policy would not permit the son to share in the amount paid in settlement by his insurer. In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958).

This result is not precluded by the "slayer statute," G.S. 31A-4, which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased, since the slayer's exclusion by G.S. 31A-4 appears to apply only to inheritance from the decedent's "estate," while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased, but rather to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

Recovery Reduced by Liable Beneficiary's Share. - In wrongful death actions where recovery depends on establishing the liability of a party who is also a beneficiary of the decedent's estate, any recovery obtained shall be reduced by that party-beneficiary's pro rata share, and that party-beneficiary is precluded from participating in the recovery; but the action may be maintained on behalf of the other beneficiaries, if any. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Effect of Liability of Sole Beneficiary. - If recovery in a wrongful death action depends upon establishing the liability of a party who is the sole beneficiary of the decedent's estate, the action may not be maintained at all. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Nonnegligent Parent Allowed to Recover for Child's Death. - A wrongful death action could be maintained on behalf of deceased child's estate against defendant mother, but only father would be entitled to share in any recovery, since any recovery obtained would be grounded on the negligence of the mother. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Family Purpose Doctrine Did Not Bar Husband's Recovery Where Wife Negligent. - Husband was not barred by the family purpose doctrine from sharing in any recovery by his son's estate because of the negligence of his wife, the defendant in driving the husband's automobile. Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

Plaintiff father, having abandoned the deceased when the latter was a minor child, could not share in the proceeds of the settlement of the claim for wrongful death now in the hands of the administratrix. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Distribution When Deceased Was Nonresident. - Where a person was domiciled in another state and was killed in this State, and an administrator sues in this State, the funds recovered must be distributed under the laws of this State, though a prior administration had been taken out in the state of his domicile. Hartness v. Pharr, 133 N.C. 566, 45 S.E. 901 (1903). See Hall v. Southern R.R., 146 N.C. 345, 59 S.E. 879 (1907).

Allocation of Funds Received in Single Settlement for Wrongful Death and for Suffering Prior to Death. - See In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964).

Recovery under Federal Employers' Liability Act. - In an action to recover damages under the Federal Employers' Liability Act, this State statute does not apply as to the distribution of the recovery. Horton v. Seaboard Air Line Ry., 175 N.C. 472, 95 S.E. 883 (1918), appeal dismissed, 251 U.S. 566, 40 S. Ct. 180, 64 L. Ed. 417 (1920).

Attorneys' Fees. - The 1985 amendment to this section provides that an attorney who litigates a wrongful death claim may be paid for his services from the wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712 (1985).

Attorney who neither initiated nor handled wrongful death claim and was appointed successor administrator only after wrongful death award had been made, but who expended considerable time in determining the correct distribution of wrongful death proceeds, could be compensated for his services from the wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712 (1985).

"Costs" of an estate would not be payable from wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712 (1985).

V. DAMAGES RECOVERABLE.

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A. IN GENERAL.

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Purpose of damages in a wrongful death case is to restore the beneficiaries to the position they would have occupied had there been no death. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982).

Legislature Intended to Be as Full Compensation as Possible. - The General Assembly intended the wrongful death statute to as fully as possible compensate persons for the loss of their decedent. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Basis for Damages Generally. - In this State the recovery in a wrongful death case is based largely on losses suffered by particular beneficiaries. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982).

This section allows the personal representative, on behalf of the statutory beneficiaries of the estate, to recover, inter alia, the present monetary value of the decedent to the beneficiaries. The measure is the worth of the decedent; how well off the beneficiaries are absent the decedent is immaterial. Harris v. United States, 121 F.R.D. 652 (W.D.N.C. 1988).

This section controls the measure of damages. Nelson v. United States, 541 F. Supp. 816 (M.D.N.C. 1982).

The action for wrongful death exists only by virtue of this section, and the statutory provision must govern not only the right of action but also the rule for determining the basis and extent of recovery of damages therefor. Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952).

In North Carolina a right of action to recover damages for wrongful death is given by this section and in this jurisdiction the action for wrongful death exists only by virtue of these statutes. In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964).

Wrongful death damages are unlimited. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

Determination of Damages Recoverable under Subsection (b). - Damages recoverable under subsection (b) are not determined by ascertaining the net pecuniary loss suffered by the estate, but are determined by ascertaining the present monetary loss suffered by those persons entitled to receive the damages. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419 (1972), aff'd, 283 N.C. 395, 196 S.E.2d 789 (1973).

Where the measure of damages in death cases is "loss to beneficiaries," rather than the "loss to estate," a beneficiary's right to recover the value of expected benefits is limited to his life expectancy. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419 (1972), aff'd, 283 N.C. 395, 196 S.E.2d 789 (1973).

Question as to Economic Loss to Estate Not Error. - Where plaintiff 's lawyer asked doctor "Do you have an opinion as to the present value of the economic loss to the estate?", defendant was correct in pointing out that recovery of damages under the statute is to the beneficiaries of the decedent and not to the decedent's estate; however, it was plain from the record that both doctor and the jury understood the correct measurement of damages under the wrongful death statute. Stutts v. Adair, 94 N.C. App. 227, 380 S.E.2d 411 (1989).

As to measure of damages under former statute, see Kesler v. Smith, 66 N.C. 154 (1872); Burton v. Wilmington & W.R.R., 82 N.C. 504 (1880), modified on rehearing, 84 N.C. 192 (1881); Bradley v. Ohio River & C.R.R., 122 N.C. 972, 30 S.E. 8 (1898); Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191 (1900); Carter v. North Carolina R.R., 139 N.C. 499, 52 S.E. 642 (1905); Poe v. Raleigh & A. Air Line R.R., 141 N.C. 525, 54 S.E. 406 (1906); Purnell v. Rockingham R.R., 190 N.C. 573, 130 S.E. 313 (1925); Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400 (1926); Hicks v. Love, 201 N.C. 773, 161 S.E. 394 (1931); Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341 (1940); Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194 (1946); McCoy v. Atlantic C.L.R.R., 229 N.C. 57, 47 S.E.2d 532 (1948); Hanks v. Norfolk & W.R.R., 230 N.C. 179, 52 S.E.2d 717 (1949); Martin v. Currie, 230 N.C. 511, 53 S.E.2d 447 (1949); United States v. Brooks, 176 F.2d 482 (4th Cir. 1949); Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183 (1951); Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952); Caudle v. Southern Ry., 242 N.C. 466, 88 S.E.2d 138 (1955); Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241 (1960); Scriven v. McDonald, 264 N.C. 727, 142 S.E.2d 585 (1965); Smith v. Mercer, 276 N.C. 329, 172 S.E.2d 489 (1970); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973); Mosley v. United States, 538 F.2d 555 (4th Cir. 1976).

Recovery to Be One Compensation in Lump Sum. - This section contemplates that if plaintiff be entitled to recover at all, he is entitled to recover as damages one compensation in a lump sum. He is not entitled to recover the whole sum from each of the joint tort-feasors. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33 (1968).

Damages may not be assessed on the basis of sheer speculation, devoid of factual substantiation. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

Some Speculation Is Necessary to Determine Damages. - In allowing recovery under this section, this State's courts have recognized that, by necessity, some speculation is necessary in determining damages. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Jury May Base Speculation on Facts. - Damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in speculation in assessing damages where it is necessary and there are sufficient facts to support speculation. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Some Speculation Not Grounds for Refusing All Damages. - The fact that the full extent of the damages must be a matter of some speculation is not ground for refusing all damages. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Absence of Yardstick for Ascertaining Monetary Recovery. - Monetary recovery cannot be denied simply because no yardstick for ascertaining the amount thereof has been provided. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Negative Factors Held Relevant to Present Monetary Value. - Evidence regarding 19 year old decedent's low level of educational attainment, absence of regular employment, status of dependency on her parents, and history of alcohol and drug abuse was clearly relevant to a determination of her "present monetary value . . . to the persons entitled to receive the damages recovered," and the jury could conclude that these negative factors offset, to the extent found, what decedent's present monetary value would have been in their absence. Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889 (1985), upholding award of damages in the amount of $5,000.

Under subsection (b)(4), only reasonably expected net income of decedent can be recovered. Victim's parents, his only survivors, could only recover the amount of his income that they reasonably might have received had he lived. State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989).

Trial Court Erred in Application of This Section. - Although the trial court properly used the wrongful death statute to compute the amount of restitution which defendant found guilty of misdemeanor death by vehicle should pay, it erred in its application of this section. State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989).

Certain increased medical expenses as well as funeral bills incident to the death of a 40 week-old fetus could only be recovered by the administrator of the fetal estate pursuant to an action under this section. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909 (1988), aff'd, 327 N.C. 283, 395 S.E.2d 85 (1990), rehearing denied, 327 N.C. 644, 399 S.E.2d 133 (1990).

Injured Person's Right of Action to Recover Damages Survives. - An injured person's common-law right of action in respect of damages he sustained during the interval between injury and death now survives to his personal representative. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Damages Sustained by Deceased in His Lifetime Recoverable under Former Statute. - See Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946).

Liability of Damages for Payment of Decedent's Debts. - It seems improbable that the General Assembly intended that recovery for items of damage within subsection (b)(1), (2) and (5) should be exempt from liability for the payment of the debts and legacies of the decedent. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

The value of the life before 21 as well as after 21 years of age was recoverable. Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943 (1916).

Wrongful Death of Child. - The meaning of damages, in the case of the wrongful death of a child is the same as in the case of an adult. The difficulty is in the application. Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191 (1900). See Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943 (1916); Scriven v. McDonald, 264 N.C. 727, 142 S.E.2d 585 (1965).

The measure of damages for the death of a child is the same as for an adult, notwithstanding the difficulty of applying the rule is greatly increased in the case of an infant. Burton v. Croghan, 265 N.C. 392, 144 S.E.2d 147 (1965).

Hedonic damages are not recoverable under subdivision (b) of this section. Livingston v. United States, 817 F. Supp. 601 (E.D.N.C. 1993).

Burden of Proof under Former Statute. - See Scriven v. McDonald, 264 N.C. 727, 142 S.E.2d 585 (1965); Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968); Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677 (1968); Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Instructions as to Life Expectancy of Persons Entitled to Recovery. - Where there is evidence tending to show that persons entitled to receive the damages recovered have a shorter life expectancy than that of deceased, it is error for the court to fail to instruct the jury to consider the life expectancy of such persons in determining the amount of damages recoverable. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419 (1972), aff'd, 283 N.C. 395, 196 S.E.2d 789 (1973).

Argument that defendant would be obligated to pay every single dollar of the damage award might be interpreted by the jury as meaning that defendant was not protected by automobile liability insurance, and such argument was unfair to the plaintiff and improper. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982).

Instruction That Damages Are Tax Exempt Is Erroneous. - It is reversible error for the trial court to instruct the jury that damages awarded in a wrongful death action are exempt from federal and state income taxes. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982).

Income Tax Exemption Instruction Inequitable. - It would be inequitable to give an income tax exemption instruction to the jury without allowing evidence relative to the effect that the exemption would have on the future tax liability of each of the particular beneficiaries, which would unduly complicate a wrongful death action, which is already complicated by statute. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982).

Question of Damages Is for Jury. - See Carter v. North Carolina R.R., 139 N.C. 499, 52 S.E. 642 (1905); Horton v. Seaboard Air Line R.R., 175 N.C. 472, 95 S.E. 883 (1918), appeal dismissed, 251 U.S. 566, 40 S. Ct. 180, 64 L. Ed. 417 (1920); Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400 (1926).

The assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

The assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury - subject, of course, to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

The jurors being "the sole judges of the facts" are necessarily the sole judges of whether they are "satisfied from the evidence and by its greater weight" that plaintiff sustained damages and, if so, whether there is evidence from which they can reasonably determine the approximate amount of the plaintiff's pecuniary loss. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Trial Court Should Submit to Jury Separate Issues for Compensatory and Punitive Damages. - In wrongful death action, trial court should submit to jury separate issues for compensatory and punitive damages when evidence supports submission of these issues. Jones v. McCaskill, 99 N.C. App. 764, 394 S.E.2d 254 (1990).

Double Recovery Not Permitted. - Because recovery for any diminishment in the quality of life of the survivors in a wrongful death case is already addressed in effect under subdivisions (b)(4)b and (b)(4)c, allowance of separate hedonic damages would result in double recovery. Livingston v. United States, 817 F. Supp. 601 (E.D.N.C. 1993).

Relevant Evidence. - Evidence pertaining to disease of plaintiff's decedent and the effect it had on his relationship with his parents had a tendency to prove the extent of damages, which were in controversy in wrongful death action. The evidence was therefore relevant and should have been admitted on that ground. Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388 (1993).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent's child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent's mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150 (2015).

B. PAIN AND SUFFERING.

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There is a surviving cause of action for predeath expenses and pain and suffering. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

Decedent Must Have Been Conscious. - In an action under the federal Tort Claims Act arising out of a vehicular accident, the extent of the accident inflicted massive head injuries making it improbable that the decedent was conscious following the collision, and therefore ruling out recovery for post-accident pain and suffering. Livingston v. United States, 817 F. Supp. 601 (E.D.N.C. 1993).

Recovery for Pain and Suffering and for Medical Expenses. - Recovery for pain and suffering and for hospital and medical expenses relate to a single cause of action and should be submitted upon a single issue of damages. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946); In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964).

Damages for the pain and suffering of a decedent fetus are recoverable if they can be reasonably established. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987).

Suffering Was Not Speculative. - In a wrongful death action arising out of asbestos-exposure, a district court did not abuse its discretion in refusing to reduce the amount of the damages awarded where, given the uncontested evidence regarding the course of the decedent's illness and attendant complications, it could not be said that his physical and psychological suffering from his disease was speculative. Finch v. Covil Corp., - F.3d - (4th Cir. Aug. 24, 2020).

C. BURIAL EXPENSES.

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Recovery of Burial Expenses. - A cause of action does not exist for the recovery of burial expenses in an action for wrongful death separate and apart from the right to recover for the wrongful death. The statute provides for the payment of burial expenses out of "the amount recovered in such action." Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947); Crawford v. Hudson, 3 N.C. App. 555, 165 S.E.2d 557 (1969), overruled on other grounds, Gibson v. Campbell, 28 N.C. App. 653, 222 S.E.2d 449 (1976).

Prenatal Death of Viable Child. - Medical and funeral expenses, as well as punitive and nominal damages, should be allowed in the case of a decedent fetus where appropriate. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987).

D. LOSS OF DECEDENT'S INCOME, SERVICES, SOCIETY, ETC.

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The paragraphs of subdivision (b)(4) enumerate some of the factors to be considered in determining the present monetary value of the decedent to the persons entitled to the damages recovered. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Damages determinable in accordance with subdivision (b)(4) are quite different from damages determinable on the basis of the pecuniary injury suffered by the decedent's estate as the result of his death. Smith v. Mercer, 276 N.C. 329, 172 S.E.2d 489 (1970); Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419 (1972), aff'd, 283 N.C. 395, 196 S.E.2d 789 (1973).

No rule is prescribed for the measurement or ascertainment of the damages recoverable under subdivision (b)(4). It would be difficult, if not impossible, to formulate a rule of general application for the measurement of such damages. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

The present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Damages for any items under subdivision (b)(4), unless the decedent was a person of established earning capacity beyond his or her personal needs, involve in large measure speculative and intangible considerations. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Since the persons entitled to the damages recovered may have suffered substantial losses on account of the items of damage under subdivision (b)(4), it cannot be said that there can be no recovery for these items of damages because no yardstick for ascertaining the amount thereof has been provided. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Direct evidence of earnings is not essential, it being sufficient to present evidence of "health, age, industry, means and business." Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677 (1968).

It is not essential that direct evidence of the earnings of a deceased adult be offered in order for there to be recovery of damages. Evidence of his health, age, industry, means and business are competent to show loss. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968).

Although it is not essential that direct, specific evidence be offered with reference to decedent's earning capacity, it is required that plaintiff offer some evidence tending to show that intestate was potentially capable of earning money in excess of that which would be required for her support. Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968).

Direct Evidence of Intent to Give Is Essential. - The trial judge erred in submitting to the jury as an element of damages the amount of income plaintiffs could reasonably have expected from the deceased where the plaintiffs presented no direct evidence that their deceased daughters "had ever expressed an intent to provide any of [their] income to [their] parents"; although the evidence indicated that deceased daughters were brought up in a family and culture within which intra-family financial assistance was favored, absolutely no evidence tended to show that the two teenage girls, specifically, would grow up to follow this example. Bahl v. Talford, 138 N.C. App. 119, 530 S.E.2d 347 (2000).

Exclusion of Plaintiff's Remarriage Proper. - In a medical malpractice action, the exclusion of evidence of plaintiff's remarriage was proper under G.S. 28A-18-2(c), as defendants should not have been permitted to reduce their liability for the damages caused by the patient's death simply because plaintiff had remarried. Katy v. Capriola, 226 N.C. App. 470, 742 S.E.2d 247 (2013).

Prenatal Death of Viable Child. - Lost income damages normally available under subdivision (b)(4)a cannot be recovered in an action for the wrongful death of a stillborn child. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987).

Damages normally recovered under subdivision (b)(4)b and c, for loss of services, companionship, advice and the like, will not be available in an action for the wrongful death of a viable fetus. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, rehearing denied, 320 N.C. 799, 361 S.E.2d 73 (1987).

Loss of bloodline and denial of grandchildren are not grounds for recovery under this section. Livingston v. United States, 817 F. Supp. 601 (E.D.N.C. 1993).

Evidence of Earnings in Excess of Amount Needed to Support Decedent Required. - It is required that plaintiff offer some evidence tending to show that intestate was potentially capable of earning money in excess of that which would be required for her support. Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677 (1968).

Showing of Actual Support of Parents Not Required. - Trial judge did not err by instructing the jury that it could award damages to decedent's parents for the loss of her net income; there is no reason to demand actual support of the parents as the sole ground for any recovery of lost income since such a requirement would run counter to the remedial purpose of the statute and to the evidentiary provisions of subsection (c). Stutts v. Adair, 94 N.C. App. 227, 380 S.E.2d 411 (1989).

Estimating Life Expectancy of Child. - In an action for the wrongful death of a child nine years of age the rule for measuring damages is that expectancy of life may be determined by the jury based upon the constitution, health and habits of the infant, and where the jury was so instructed, it was not error for the court in illustrating the rule to use the figures 50 and 20 in referring to life expectancy. Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194 (1946).

Expert Testimony as to Monetary Value of Decedent. - An expert economist's testimony in a wrongful death action as to the present monetary value of the decedent to the persons entitled to receive damages under subsection (b) was properly admitted in evidence without the witness first having placed into evidence the statistics, formulae, calculations and economic assumptions used in arriving at his opinion. While the failure to elaborate on the witness' computations might have weakened the probative value of the testimony, it did not affect its admissibility. Rutherford v. Bass Air Conditioning Co., 38 N.C. App. 630, 248 S.E.2d 887 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 34 (1979).

The testimony of an expert who predicted economic loss based on available knowledge pertaining to decedent, including testimony of his work supervisors and testimony regarding the decedent's skills and wage data, as well as expert's own expertise and ability to project a person's likely economic status through the use of data available in his field provided a reasonable basis for the computation of damages, even though the result was, at best, only approximate. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Expert testimony is practically the only evidence available to prove future earnings in a wrongful death action. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982).

When Judge Must Set Verdict Aside. - In awarding damages for wrongful death the jury is not ordinarily required as a matter of law to award damages for all or any of the items specified in paragraphs a, b, and c of subdivision (b)(4). It is only when the jury has arbitrarily disregarded the law and the evidence that the judge must exercise his judicial discretion and set the verdict aside. Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Reasonable Level of Certainty Requirement - In a failure to warn product liability action against a taser manufacturer by the administrator of a decedent's estate, the manufacturer was entitled to a new trial on damages because the evidence did not meet the required reasonable level of certainty to establish that services, care, and companionship had a monetary value approaching $6.15 million. Fontenot v. Taser Int'l, Inc., 736 F.3d 318 (4th Cir. 2013).

Damages for Lost Future Wages Not Allowed for Fisherman. - Self-employed commercial fisherman was a "person otherwise engaged in maritime trade" and thus was prevented from recovering nonpecuniary damages or damages for lost future earnings. In re Goose Creek Trawlers, Inc., 972 F. Supp. 946 (E.D.N.C. 1997).

Remittitur Ordered. - In a products liability action wherein a North Carolina minor died after being hit in the chest with an electrical control device (ECD) by the police, the federal district court granted the ECD manufacturer's motion for a new trial under Fed. R. Civ. P. 59(a) or for remittitur, in part, and remitted the jury's verdict from $10 million to $5,491,503.65 because while the court found that there was sufficient evidence presented at trial for the jury to find that the minor's value to his parents was significant, the jury's $10 million damages award was excessive even according the parents' own assessment since the jury's verdict suggested that it did not reduce its figure to present value. Fontenot v. Taser Int'l, Inc., - F. Supp. 2d - (W.D.N.C. Apr. 20, 2012).

No evidence was offered showing that the decedent, who died of accidental strangulation in a nursing home, was potentially capable of earning money in excess of that which would be required for her support, and the jury's award as to these damages, therefore, would necessarily be based on speculation and not supported by evidence; consequently, the trial court erred in instructing the jury that it could award damages for loss of the decedent's net income, pursuant to G.S. 28A-18-2(b)(4), which required a new trial as to the issue of damages for the decedent's wrongful death. Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C. App. 139, 565 S.E.2d 254, cert. denied, 356 N.C. 299, 570 S.E.2d 503 (2002).

Dismissal of Wrongful Death Claim. - Where an estate administrator asserted a claim for loss of consortium, since the suit that decedent may have instituted was encompassed by the wrongful death statute and the district court had to dismiss the wrongful death action, any loss of consortium claim also had to be dismissed. Latka v. Miles, - F. Supp. 2d - (E.D.N.C. Mar. 26, 2015).

E. PUNITIVE DAMAGES.

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Three Categories of Conduct Affording Recovery. - By providing for recovery of punitive damages upon a showing of "maliciousness, wilful or wanton injury, or gross negligence" it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery. Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, cert. denied, 318 N.C. 281, 347 S.E.2d 462 (1986).

Recovery for Gross Negligence Even Absent Wilful or Wanton Conduct. - This section allows recovery of punitive damages in wrongful death actions involving gross negligence even when no wilful or wanton conduct was involved. To establish gross negligence, the plaintiff must show negligence of an aggravated character. Henderson v. LeBauer, 101 N.C. App. 255, 399 S.E.2d 142 (1991).

Gross Negligence Authorizes Punitive Damages. - Although the term "gross negligence" is not defined in this section, based on prior case law the inclusion of gross negligence would authorize punitive damages in cases where the defendant's conduct was something less than willful or wanton. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

This section specifically allows the award of punitive damages upon a showing of gross negligence. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982); Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, cert. denied, Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E.2d 924.

"Gross negligence" does not constitute a lower standard of negligence than "willful or wanton conduct" in the context of a wrongful death suit. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524S.E.2d 53 (1999).

Punitive Damages Not Recoverable from Wrongdoer's Personal Representative. - The general rule is that there can be no recovery for punitive damages against the personal representative of the deceased wrongdoer, however aggravated the circumstances may be. The sole purpose of the allowance of punitive damages is to punish the wrongdoer. The death of the wrongdoer precludes his being punished by the assessment of punitive damages. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982).

Punitive damages are recoverable from municipalities in wrongful death cases on the same basis as from other tort-feasors. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985), aff'd, 316 N.C. 259, 341 S.E.2d 523 (1986).

Reading portions of G.S. 12-3(6) into this section, the North Carolina Wrongful Death Act contains a statutory provision providing for the recovery of punitive damages from bodies politic, which includes municipal corporations. Jackson v. Housing Auth., 316 N.C. 259, 341 S.E.2d 523 (1986).

Recovery from Municipal Corporations. - This section, the North Carolina Wrongful Death Act, contains a statutory provision providing for the recovery of punitive damages from bodies politic, which includes municipal corporations. Jackson v. Housing Auth., 316 N.C. 259, 341 S.E.2d 523 (1986).

Evidence Meriting Submission of Punitive Damages. - In wrongful death case, plaintiff's evidence which tended to show numerous violations of the National Electric Safety Code and of defendant power company's own standards was sufficient to merit the submission of the issue of punitive damages to the jury. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982).

Punitive Damages Unwarranted in the Absence of Wilful and Wanton Conduct. - Wife of a decedent who was electrocuted on a stairwell at an amphitheater, which was operated by a subsidiary, could not recover punitive damages under G.S. 1D-5(7), G.S. 1D-15(c), and G.S. 28A-18-2 because evidence showing: (1) that the subsidiary had been informed prior to the accident that other patrons had been electrocuted on a stairwell; and (2) that the subsidiary took ineffective efforts to address electrical hazards did not demonstrate a wilful and wanton disregard for the safety of others. Faris v. Clear Channel Communs., Inc., - F. Supp. 2d - (W.D.N.C. Sept. 1, 2006).

When Directed Verdict Proper as to Claim for Punitive Damages. - In a wrongful death action arising out of negligence, a directed verdict may properly be granted against a plaintiff seeking punitive damages only where the evidence is insufficient as a matter of law to support a jury finding that the defendant wrongfully caused the death of the decedent in a malicious, wilful, wanton or grossly negligent manner. Boyd v. L.G. DeWitt Trucking Co., 103 N.C. App. 396, 405 S.E.2d 914, cert. denied, 330 N.C. 193, 412 S.E.2d 53 (1991).

Evidence Sufficient to Support Award of Punitive Damages. - Evidence of truck driver's driving record was sufficient for jury to find that trucker was an unsafe driver, that company for which he worked either knew or should have known of his danger to the rest of the driving public, and given the number and severity of his offense, was equally sufficient to support the jury's finding that company's negligent entrustment was wilful or wanton, so as to justify denial of defendants' motions for a directed verdict and for judgment notwithstanding the verdict on plaintiff's claim for punitive damages arising out of company's negligent entrustment. Boyd v. L.G. DeWitt Trucking Co., 103 N.C. App. 396, 405 S.E.2d 914, cert. denied, 330 N.C. 193, 412 S.E.2d 53 (1991).

Personal Representative's Claim Not Barred for Failure to Join with Parents. - Administratrix's claim for punitive damages for death of stillborn child was not barred merely because it was not joined with the settled claim of the parents; if defendants wished to allege that part of the moneys the parents received in settlement of their claims was for punitive damages, defendants would have a right to support that contention with evidence and have the jury consider it in evaluating the administratrix's claim for punitive damages. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, aff'd, 331 N.C. 368, 416 S.E.2d 174 (1992).

F. NOMINAL DAMAGES.

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Applicable Where No Pecuniary Loss Suffered. - Subdivision (b)(6) supplies a statutory basis which was lacking when previous cases were decided. Nominal damages and costs may now be recovered if the jury finds that the decedent's death was caused by the defendant's wrongful act but fails to find that such death caused pecuniary loss. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973); Lentz v. Gardin, 30 N.C. App. 379, 226 S.E.2d 839, remanded on other grounds, 294 N.C. 425, 241 S.E.2d 508 (1978).

Jury Not Required to Award Damages. - A jury will not be required to award damages when the evidence adduced does not establish to its satisfaction facts which will reasonably support an assessment. In such a situation, by subdivision (b)(6) the legislature authorized "nominal damages when the jury so finds." Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

Nominal Damages Appropriate. - Where the jury found that plaintiff had been "damaged by the negligence of the defendant", that the plaintiff's intestate did not contribute to her own injuries, and that plaintiff established her cause of action for wrongful death, the trial court erred in refusing to enter an award of nominal damages. Porter v. Leneave, 119 N.C. App. 343, 458 S.E.2d 513 (1995).

VI. ADMISSION OF DYING DECLARATIONS.

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This is a general statute changing the rule of evidence, in which no one has a vested interest and which the law-making power can extend, alter or repeal at will. Williams v. Randolph & C.R.R., 182 N.C. 267, 108 S.E. 915 (1921).

Change in rule of evidence is valid and constitutional. Tatham v. Andrews Mfg. Co., 180 N.C. 627, 105 S.E. 423 (1920).

What Declarations Permitted. - This section permits in evidence declarations of the act of killing and circumstances immediately attendant on the act, which constitute a part of the res gestae, uttered when the declarant was in actual danger of death, and made in full apprehension thereof, and when the death accordingly ensued. Tatham v. Andrews Mfg. Co., 180 N.C. 627, 105 S.E. 423 (1920).

As in criminal actions for homicide, the dying declarations of one whose wrongful death has been caused, to be admissible upon the trial of an action to recover damages for his wrongful death, must have been voluntarily made while the declarant was in extremis or under a sense of impending death, and must be confined to the act of killing and the attendant circumstances forming a part of the res gestae. Dellinger v. Elliott Bldg. Co., 187 N.C. 845, 123 S.E. 78 (1924).

Preliminary Facts Must Be Shown. - The dying declarations of a deceased person for whose death an action has been brought under this section are competent as evidence, provided the preliminary facts are made to appear. Southwell v. Atlantic C.L.R.R., 189 N.C. 417, 127 S.E. 361 (1925).

Otherwise they are not admissible. Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93 (1927).

Declarations Made Before Occurrence of Accident. - Where the declarant was fatally injured in an automobile accident, declarations made by him the night before and two days before undertaking the journey are not admissible as dying declarations. Gassaway v. Gassaway, 220 N.C. 694, 18 S.E.2d 120 (1942).

Testimony of Statement Held Inadmissible. - In a workers' compensation case, testimony of a statement by an officer shortly before his death from coronary occlusion that he "had had a time all the morning" arresting three men who resisted him, was incompetent as a dying declaration, not having been brought within the terms of this section. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398 (1948).


§ 28A-18-3. To sue or defend in representative capacity.

All actions and proceedings brought by or against personal representatives or collectors upon any cause of action or right to which the estate of the decedent is the real party in interest, must be brought by or against them in their representative capacity.

History

(1868-9, c. 113, s. 79; Code, s. 1507; Rev., s. 160; C.S., s. 164; 1973, c. 1329, s. 3.)

Cross References. - As to parties, see G.S. 1A-1, Rule 17.

As to when heirs and devisees are necessary parties, see G.S. 28A-17-4.

Legal Periodicals. - For note on the Erie doctrine and Rule 15(c), see 16 Wake Forest L. Rev. 621 (1980).

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Right of Action for Wrongful Death Is Purely Statutory. - Because the right to an action for wrongful death rests entirely upon the Wrongful Death Act, it must be asserted in conformity therewith. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

Suit Must Be Brought by Personal Representative. - Under the Wrongful Death Act, G.S. 28A-18-2, the administrator of an intestate, or the executor of one who dies testate, may institute an action for wrongful death; and he does so as the representative of the estate. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, cert. denied, 307 N.C. 696, 301 S.E.2d 389 (1983).

Application to Administrator De Bonis Non. - The provisions of this section apply to suits brought by administrator de bonis non, as well as to original administrator, and are mandatory. There is no middle ground. Rogers v. Gooch, 87 N.C. 442 (1882).

This section is silent as to any distinction between a resident and a foreign personal representative. Franklin v. Standard Cellulose Prods., Inc., 261 N.C. 626, 135 S.E.2d 655 (1964).

There is no statutory authority for a foreign executor or administrator to come into State courts and prosecute or defend an action in his representative capacity. Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34 (1947); Brauff v. Commissioner of Revenue, 251 N.C. 452, 111 S.E.2d 620 (1959).

Action Against Nonresident Motorist's Personal Representatives Is Authorized as Exception. - An action authorized by former G.S. 1-105, as amended in 1953 to allow service of process upon the executor or administrator of a nonresident motorist, is an exception to the general rule stated in Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34 (1947); Franklin v. Standard Cellulose Prods., Inc., 261 N.C. 626, 135 S.E.2d 655 (1964).

Action to collect note payable to decedent and maturing before his death must be instituted by the representative of his estate in his representative capacity. Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34 (1947).

Heirs have no right to be made parties to an action on an account against a personal representative, although they allege collusion between the plaintiff and the representative. Byrd v. Byrd, 117 N.C. 523, 23 S.E. 324 (1895).

Applied in Tinkham v. Hall, 47 N.C. App. 651, 267 S.E.2d 588 (1980).

Cited in Davis v. Piper Aircraft Corp., 615 F.2d 606 (4th Cir. 1980); In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712 (1985); Boyd v. Sandling, 210 N.C. App. 455, 708 S.E.2d 311 (2011).


§ 28A-18-4. Service on or appearance of one binds all.

In actions against personal representatives or collectors, they are all to be considered as one person, representing the decedent; and if the summons is served on one or more, but not all, the plaintiff may proceed against those served, and if the plaintiff recovers, judgment may be entered against all.

History

(1868-9, c. 113, s. 81; Code, s. 1508; Rev., s. 161; C.S., s. 165; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the plaintiff recovers" for "he recovers."

§ 28A-18-5. When creditors may sue on claim; execution in such action.

An action may be brought by a creditor against the personal representative or collector on a demand at any time after it is due, but no execution shall issue against the personal representative or collector on a judgment therein against the personal representative or collector without leave of the court, upon notice of 20 days and upon proof that the defendant has refused to pay such judgment or its ratable part, and such judgment shall be a lien on the property of the estate of the decedent only from the time of such leave granted.

History

(1868-9, c. 113, s. 82; Code, s. 1509; Rev., s. 162; C.S., s. 166; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Cross References. - For provision that suit does not create lien against representative, see G.S. 28A-19-17.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "against the personal representative or collector" for "against him" near the middle of the section.

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Any Court May Entertain Suit to Establish Claim. - In construing this section, it was decided at a very early day after its enactment that any court having jurisdiction of the amount sued for could entertain the suit of the creditor so far as to establish his claim and give him judgment therefor. Heilig v. Foard, 64 N.C. 710 (1870); Vaughn v. Stephenson, 69 N.C. 212 (1873); Shields v. Payne, 80 N.C. 291 (1879); Hoover v. Berryhill, 84 N.C. 132 (1881).

Jurisdiction for Breach of Contract. - The superior court in term has, under this section, jurisdiction of an action by a creditor against an administrator for breach of a contract made by his interstate. Shields v. Payne, 80 N.C. 291 (1879).

What Court May Grant Leave to Issue Execution. - The court which, under this section, may grant leave to issue execution is the court which has jurisdiction of probate matters, and no other court. Vaughn v. Stephenson, 69 N.C. 212 (1873).


§ 28A-18-6. Service by publication on executor without bond.

Whenever process may issue against an executor who has not given bond, and the same cannot be served upon the executor by reason of the executor's absence or concealment, service of such process may be made by publication in the manner prescribed in other civil actions.

History

(1868-9, c. 113, s. 94; Code, s. 1523; Rev., s. 163; C.S., s 167; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "the executor's" for "his," or similar language.

§ 28A-18-7. Execution by successor in office.

Any personal representative or collector may have execution issued on any judgment recovered by any person who preceded the personal representative or collector in the administration of the estate, or by the decedent, in the same cases and the same manner as the original plaintiff might have done.

History

(1868-9, c. 113, s. 84; Code, s. 1513; Rev., s. 164; C.S., s. 168; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative or collector" for "him."

§ 28A-18-8. Action to continue, though letters revoked.

In case the letters of a personal representative or collector are revoked, pending an action to which the personal representative or collector is a party, the adverse party may, notwithstanding, continue the action against the personal representative or collector in order to charge the personal representative or collector personally. If such party does not elect so to do, within six months after notice of such revocation, the action may be continued against the successor of the personal representative or collector in the administration of the estate, in the same manner as in case of death.

History

(1868-9, c. 113, s. 85; Code, s. 1514; Rev., s. 165; C.S., s. 169; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted "the personal representative or collector" for "him," or similar language.

CASE NOTES

Cited in Champion v. PPG Indus., - F. Supp. 2d - (W.D.N.C. Apr. 2, 2004).

ARTICLE 19. Claims Against the Estate.

Sec.

§ 28A-19-1. Manner of presentation of claims.

  1. A claim against a decedent's estate must be in writing and state the amount or item claimed, or other relief sought, the basis for the claim, and the name and address of the claimant; and must be presented by one of the following methods:
    1. By delivery in person or by mail to the personal representative, collector or the clerk of superior court. Such claim will be deemed to have been presented from the time of such delivery.
    2. By mailing, registered or certified mail, return receipt requested, to the personal representative or collector at the address set out in the general notice to creditors. Such claim will be deemed to have been presented from the time when the return receipt is signed by the personal representative, collector, or agent of the personal representative or collector, or is refused by the personal representative, collector, or agent of the personal representative or collector.
    3. By delivery to the clerk of court of the county in which the estate is pending, which notice shall be filed in the appropriate estate file and copy mailed first class by the clerk of superior court at the expense of the claimant to the personal representative, collector, or  agent of the personal representative or collector. The claim will be deemed to have been presented from the time of delivery to the clerk of court.
  2. In an action commenced after the death of the decedent against the decedent's personal representative or collector as such, the commencement of the action in the court in which such personal representative or collector qualified will constitute the presentation of a claim and no further presentation is necessary. In an action filed in any other court such claim will be deemed to have been presented at the time of the completion of service of process on such personal representative or collector.
  3. In an action pending against the decedent at the time of the decedent's death, which action survives at law, the court may order the substitution of the personal representative or collector for the decedent on motion therefor and that motion will constitute the presentation of any claim pending in the action, provided that the substitution or a motion for substitution is made within the time specified for the presentation of claims under G.S. 28A-19-3, and no further presentation is necessary. Such claim will be deemed to have been presented from the time of the substitution, or motion therefor. Neither the timely substitution of the personal representative nor timely motion therefor as provided in this subsection extends the time for filing additional claims.

History

(1973, c. 1329, s. 3; 1977, c. 446, s. 1; 1985, c. 645, s. 1; 2011-344, s. 4; 2014-107, s. 4.1.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subsection (a), substituted "agent of the personal representative or collector" for "his agent" in subsection (b) substituted "the decedent's" for "his"; in subsection (c), inserted "court may order," substituted "on motion therefor and that motion will" for "or motion thereof will," and inserted "provided that substitution occurs within the time specified for the presentation of claims under G.S. 28A-19-3"; and made minor stylistic changes.

Session Laws 2014-107, s. 4.1, effective August 6, 2014, in subsection (c), substituted "any claim pending in the action, provided that the substitution or a motion for substitution is made" for "a claim, provided that substitution occurs" in the first sentence and added the last sentence.

CASE NOTES

No Preemption by ERISA. - The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., does not preempt this section and G.S. 28A-19-3 in action by plaintiffs who challenged the acts of several defendants involving the seizure of surplus assets from a retirement plan and the use of an annuity backed by junk bonds to increase to monetary amount of the surplus seized. Riley v. Murdock, 828 F. Supp. 1215 (E.D.N.C. 1993), aff'd, 83 F.3d 415 (4th Cir. 1996), cert. denied, 519 U.S. 964, 117 S. Ct. 387, 136 L. Ed. 2d 304 (1996).

Failure to Properly Present Claim. - Claimants' notice of claim against the decedent's estate was barred under G.S. 28A-19-3(a), where, among other things, the claimants failed to state the amount or item claimed, the particular basis for their claim, and the dates upon which services were rendered as was required under G.S. 28A-19-1(a). Holloman v. Harrelson, 149 N.C. App. 861, 561 S.E.2d 351, cert. dismissed and denied, 355 N.C. 748, 565 S.E.2d 664 (2002).

Applied in In re Watson, 70 N.C. App. 120, 318 S.E.2d 544 (1984).

Cited in Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994); Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002); State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010); In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).


§ 28A-19-2. Further information or affidavit of claim may be required.

  1. If the personal representative or collector so elects,  the personal representative or collector may demand any or all of the following prior to taking action on the claim:
    1. If the claim is not yet due, that the date when it will become due be stated;
    2. If the claim is contingent or unliquidated, that the nature of the uncertainty be stated;
    3. If the claim is secured, that the security be described.
  2. Upon any claim being presented against the estate in the manner prescribed in G.S. 28A-19-1, the personal representative or collector may require the affidavit of the claimant or other satisfactory evidence that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same, to the knowledge of the claimant; or if any payments have been made, or any offsets exist that their nature and amount be shown by the evidence or stated in the affidavit.

History

(1868-9, c. 113, s. 33; Code, s. 1425; Rev., s. 91; C.S., s. 98; 1973, c. 1329, s. 3; 1977, c. 446, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative or collector may demand" for "he may demand" in the introductory paragraph of subsection (a).

§ 28A-19-3. Limitations on presentation of claims.

  1. All claims against a decedent's estate which arose before the death of the decedent, except contingent claims based on any warranty made in connection with the conveyance of real estate and claims of the United States and tax claims of the State of North Carolina and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, secured or unsecured, founded on contract, tort, or other legal basis, which are not presented to the personal representative or collector pursuant to G.S. 28A-19-1 by the date specified in the general notice to creditors as provided for in G.S. 28A-14-1(a) or in those cases requiring the delivery or mailing of notice as provided for in G.S. 28A-14-1(b), within 90 days after the date of the delivery or mailing of the notice if the expiration of said 90-day period is later than the date specified in the general notice to creditors, are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent. Provided further, if the expiration of said 90-day period is later than the date specified in the general notice to creditors, the notice delivered or mailed to each creditor, if any, shall be accompanied by a statement which specifies the deadline for filing the claim of the affected creditor.
  2. All claims against a decedent's estate which arise at or after the death of the decedent, except claims of the United States and tax claims of the State of North Carolina and subdivisions thereof whether due or to become due, absolute or contingent, liquidated or unliquidated, secured or unsecured, founded on contract, tort, or other legal basis are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent unless presented to the personal representative or collector as follows:
    1. With respect to any claim based on a contract with the personal representative or collector, within six months after the date on which performance by the personal representative or collector is due;
    2. With respect to any claim other than a claim based on a contract with the personal representative or collector, within six months after the date on which the claim arises.
  3. Except as otherwise provided by subsection (f) of this section, no claim shall be barred by the statute of limitations which was not barred thereby at the time of the decedent's death, if the claim is presented within the period provided by subsection (a) hereof.
  4. All claims of creditors upon whom there has been personal service of notice as provided in G.S. 28A-14-3 are forever barred unless presented to the personal representative or collector within the time and manner set out in this Article.
  5. Except as otherwise provided by subsection (f) of this section, unless a claim has been presented pursuant to G.S. 28A-19-1 giving notice of an action or special proceeding pending against a decedent at the time of the decedent's death and surviving under G.S. 28A-18-1 within the time provided by subsection (a) of this section, no recovery may be had upon any judgment obtained in any such action or proceeding against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent.
  6. All claims barrable under the provisions of subsections (a) and (b) hereof shall, in any event, be barred if the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 does not occur within three years after the death of the decedent.
  7. Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, deed of trust, pledge, lien (including judgment lien), or other security interest upon any property of the decedent's estate, but no deficiency judgment will be allowed if the provisions of this section are not complied with.
  8. The word "claim" as used in this section does not apply to claims of heirs or devisees to their respective shares or interests in the decedent's estate in their capacity as such heirs or devisees.
  9. Nothing in this section shall bar:
    1. Any claim alleging the liability of the decedent or personal representative; or
    2. Any proceeding or action to establish the liability of the decedent or personal representative; or
    3. The recovery on any judgment against the decedent or personal representative
  10. Except as otherwise specifically provided in this section, the limitations on presentation of claims set forth in this section apply to claims by the State of North Carolina, its subdivisions, and its agencies.

to the extent that the decedent or personal representative is protected by insurance coverage with respect to such claim, proceeding or judgment or where there is underinsured or uninsured motorist coverage that might extend to such claim, proceeding, or judgment.

History

(1973, c. 1329, s. 3; 1977, c. 446, s. 1; 1979, c. 509, s. 1; 1989, c. 378, s. 3; c. 485, s. 65; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the decedent's death" for "his death" in subsection (e); and added subsection (j).

Legal Periodicals. - For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

For note on statute of limitations accrual in attorney malpractice actions, in light of Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692, aff 'd per curiam, 312 N.C. 488, 322 S.E.2d 777 (1984), see 20 Wake Forest L. Rev. 1017 (1984).

CASE NOTES

Purpose. - This section is the type of statute that is commonly referred to as a "non-claim statute" and although similar to a statute of limitations, it serves a different purpose and operates independently of the statute of limitations that may also be applicable to a given claim. Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).

Limitations on the filing of an action are applicable to statutes of limitations which restrict the assertion of legal rights to a specific time period in order to avoid stale claims, and a cause of action may be barred by this section, G.S. 1-52(5), or both of these statutes. Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).

No Preemption by ERISA. - The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., does not preempt G.S. 28A-19-1 and this section in action by plaintiffs who challenged the acts of several defendants involving the seizure of surplus assets from a retirement plan and the use of an annuity backed by junk bonds to increase to monetary amount of the surplus seized. Riley v. Murdock, 828 F. Supp. 1215 (E.D.N.C. 1993), aff'd, 83 F.3d 415 (4th Cir. 1996), cert. denied, 519 U.S. 964, 117 S. Ct. 387, 136 L. Ed. 2d 304 (1996).

Proof of Advertisement Required. - When an administrator or executor pleads subsection (a) of this section as a defense against claims presented against the estate, he must establish the fact that he did advertise as required by G.S. 28A-14-1. Failure of such proof causes failure of the defense. Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980).

Filing of Claim in Court Not Required. - Section 28A-19-1 sets out the manner of presentation of claims including some circumstances under which the filing of an action in a court of law may constitute the presentation of a claim; however, this section does not require the filing of an action in a court of law. Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).

Language of subsection (i) provides an exception to limitations only for claims where there is insurance under which a decedent was insured. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 232 N.C. 171, 373 S.E.2d 104 (1988).

Action Not Time Barred. - Action filed on October 20, 2000, two days after qualification of deceased driver's personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52, where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff's cause of action survived his death, and thus, pursuant to G.S. 1-22, plaintiff was permitted to commence a cause of action against deceased's personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3, or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3. The personal representative's failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest "deadline" date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292 (2002).

State's claim to recover expenses for medical services provided to a decedent from the decedent's estate was not barred by G.S. 28A-19-3, as the doctrine of nullum tempus occurritt regi exempted the State from the statute of limitations because the State was not expressly included in the language of the limitations provision. State HHS v. Thompkins, 205 N.C. App. 285, 695 S.E.2d 133 (2010).

While G.S. 28A-19-3(a) required filing most claims against a decedent's estate within 90 days after notice to creditors, there had been no notice, and three years were thus available pursuant to G.S. 28A-19-3(a) and the statute of limitations for a personal injury action against the estate's executrix. Boyd v. Sandling, 210 N.C. App. 455, 708 S.E.2d 311 (2011).

Superior court properly entered a judgment for the sister of a decedent and ordered his co-executrixes to pay her the amount of a debt with interest because the decedent's holographic will made an indirect devise to his sister by directing that his funds were to be used to pay the debt owed by the sister to a third party, the co-executrixes did not mail or deliver a notice of creditors, the rejection of the creditor's claim filed by the sister and the statute of limitations applicable to such claim did not bar her claim as an heir or devisee to her respective share or interest in the decedent's estate, and inasmuch as the sister was not a creditor, any statute of limitations applicable to creditors did not apply to her. Jacobs v. Brewington, 258 N.C. App. 462, 811 S.E.2d 238 (2018).

Superior court erred in dismissing an ex-wife's complaint - arising from an equitable distribution award ordered (ED Order) by the district court against her ex-husband, prior to his death - as untimely because, while the claim was not time-barred, the wife's claim for a declaratory judgment was directly related to enforcement of the ED Order, was not a claim against the estate, and had to be enforced in the district court, which had exclusive jurisdiction over the enforcement of its equitable distribution order. Smith v. Rodgers, 263 N.C. App. 662, 824 S.E.2d 155 (2019).

Recovery Limited After Six Months. - Automobile accident victim who filed suit more than six months after the accident was limited in his amount of recovery by the amount of the deceased defendant's automobile insurance. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 232 N.C. 171, 373 S.E.2d 104 (1988).

Claim Not Barred Where Personal Representative Was Not Appointed. - Plaintiffs' cause of action is not barred for failure to present the claim to the personal representative within the time prescribed by subsection (b) where no personal representative or collector had been appointed for the estate. Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).

In light of North Carolina Supreme Court precedent, where no estate administrator had been appointed within the statute of limitations and there was insurance coverage that covered a victim's claim, the statute of limitations did not bar a victim's claim. Simpson v. McConnell, 156 N.C. App. 424, 576 S.E.2d 419 (2003).

Claim Not Barred If Personal Representative Appointed Before Limitations Period Expires. - If a personal representative is appointed to administer an estate before the expiration of the statute of limitations, G.S. 1-22 allows the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3. Shaw v. Mintz, 151 N.C. App. 82, 564 S.E.2d 593 (2002).

Extension of Statute of Limitations After Appointment of Personal Representative. - If a personal representative is appointed to administer an estate before the statute of limitations lapses, G.S. 1-22 will allow the time limit within which to file an action against the estate to be extended according to G.S. 28A-19-3. Wright v. Smith, 151 N.C. App. 121, 564 S.E.2d 613 (2002), cert. denied, 356 N.C. 696, 579 S.E.2d 106 (2003).

Under Subsection (i) Plaintiff Barred from Claim Greater Than Underinsurance Coverage. - Where, pursuant to subsection (i) of this section, all that plaintiff could recover from the underinsured decedent was the $25,000.00 coverage the decedent had under his policy with insurer, plaintiff, who was only legally entitled, by statute, to recover this amount, and nothing more, from decedent could not bring a claim for a greater amount against insurer under his underinsured motorist endorsement. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 232 N.C. 171, 373 S.E.2d 104 (1988).

Failure to Properly Present Claim. - Claimants' notice of claim against the decedent's estate was barred under G.S. 28A-19-3(a), where, among other things, the claimants failed to state the amount or item claimed, the particular basis for their claim, and the dates upon which the services were rendered as was required under G.S. 28A-19-1(a). Holloman v. Harrelson, 149 N.C. App. 861, 561 S.E.2d 351, cert. dismissed and denied, 355 N.C. 748, 565 S.E.2d 664 (2002).

Order affirming a clerk's decision to set aside a prior reopening of a decedent's estate was proper because although shareholders filed a claim against the estate after it was reopened, they did not file a claim before the estate was closed; thus, the shareholders' claim was forever barred against the estate. In re Estate of Mullins, 182 N.C. App. 667, 643 S.E.2d 599 (2007).

Claim Against Estate Barred. - Husband of a decedent was not entitled to personal notice of the time limitation for filing claims against his wife's estate under G.S. 28A-14-1(b), because there was no evidence that the executors were on notice of any claims he had against the estate arising out of transfers the wife made to her accounts using a power of attorney, and he failed to file his claim within the time provided by G.S. 28A-19-3(a) following the general newspaper notice to creditors. Mileski v. McConville, 199 N.C. App. 267, 681 S.E.2d 515 (2009).

Trial court did not err in concluding that a beneficiary's claim seeking reimbursement for funeral expenses was time-barred because the claim was submitted approximately eight months after the deadline for bringing claims against the estate had elapsed; the determination was within the trial court's scope of review because it was expressly authorized to determine whether the order of the clerk of court granting reimbursement for the funeral expenses was legally correct. In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

Non-Claim Statute Inapplicable in Action to Enforce a Deed of Trust. - Non-claim statute did not apply and thus, could support the trial court's entry of summary judgment in favor of a mortgagor and the estate of a deceased mortgagor because the mortgagee expressly sought enforcement of the deed of trust, and its claim for reformation of the deed of trust was a necessary part of the overall enforcement action; the non-claim statute does not preclude actions that seek to effectuate and enforce a deed of trust. Wells Fargo Bank, N.A. v. Coleman, 239 N.C. App. 239, 768 S.E.2d 604 (2015).

Notice to Creditors Held Fatally Defective. - An executor's general notice to creditors published in a newspaper was fatally defective where it failed to name a day after which claims would be barred and failed to give notice that claims must be filed within six months from the day of the first publication of the notice; therefore, the notice to creditors was ineffective to start the running of the six months' statute of limitations of subsection (a) of this section in bar of a claim against decedent's estate to recover for personal injuries received in an automobile accident. Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980).

Wrongful Death Recovery Held Not Barred by Section. - The failure of a plaintiff to file a claim against a decedent's estate within the six months stipulated by this section does not bar recovery for wrongful death where plaintiff is seeking to collect damages out of an automobile liability insurance policy. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982).

Garage and wrecker service owner, who had a valid lien incident to storage of defendant's vehicles pursuant to court order, could proceed against the property or the proceeds of its sale up to its value without filing the usual notice of claim under subsection (a) of this section, by virtue of subsection (g). Case v. Miller, 68 N.C. App. 729, 315 S.E.2d 737 (1984).

Claim for Compensation for Occupation of Property Not Barred Where Presented Within Period Under Section. - A landowner's claim for "reasonable compensation" for occupation of her property (G.S. 42-4), brought against one of the former co-tenants as administratrix of her husband's estate, was presented to the administratrix within the statutory period under this section and was therefor not barred by the three-year statute of limitations (G.S. 1-52(2)) as of the decedent's death. The landowner was allowed to sue the administratrix for rents not paid in the period of three years prior to the decedent's death, although the action itself was not brought until some six months after this date. Simon v. Mock, 75 N.C. App. 564, 331 S.E.2d 300 (1985).

Reopening of Estate After Six-Month Period. - The provision in G.S. 28A-23-5 prohibiting any claim which is already barred from being asserted in the reopened estate primarily refers to the limitations in this section on the presentation of claims. Thus, an estate may not ordinarily be reopened for the litigation of claims not brought within the six-month period, even in the absence of a bar by some other statute of limitations. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986), cert. denied, 319 N.C. 403, 354 S.E.2d 711 (1987).

Refusal of Clerk to Reopen Upheld. - In light of the public policy in favor of the expedited administration of estates, as evidenced by the six-month statute of limitations and other provisions of this Chapter, petitioner who alleged that the deceased had promised to devise a life estate to her had a heavy burden of justifying her failure to bring her suit within the six-month period provided for that purpose, or at the very least, within the greater than two-year period that the estate actually remained open. There was no error in the clerk's determination that this burden was not met. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986), cert. denied, 319 N.C. 403, 354 S.E.2d 711 (1987).

Recovery Limited to Extent of Decedent's Liability Insurance. - Trial court erred in denying the injured party's motion to amend the complaint because the injured party's error was a misnomer, the intended defendant (the executor) was served, and the amendment would not prejudice the executor; however, because the injured party did not present the claim to the estate in accordance with the non-claim statute, G.S. 28A-19-3, the injured party's recovery was limited to the extent of the decedent's liability insurance. Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002).

Applied in Anderson v. Gooding, 43 N.C. App. 611, 259 S.E.2d 398 (1979); Baer v. Davis, 47 N.C. App. 581, 267 S.E.2d 581 (1980); Force v. Sanderson, 56 N.C. App. 423, 289 S.E.2d 56 (1982); Lee v. Keck, 68 N.C. App. 320, 315 S.E.2d 323 (1984); Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692 (1984); Leggett v. Rose, 776 F. Supp. 229 (E.D.N.C. 1991); State Farm Mut. Auto. Ins. Co. v. Blackwelder, 332 N.C. 135, 418 S.E.2d 229 (1992).

Cited in Joyner v. Wilson Mem. Hosp., 38 N.C. App. 720, 248 S.E.2d 881 (1978); Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979); Gelder & Assocs. v. Huggins, 52 N.C. App. 336, 278 S.E.2d 295 (1981); Carethers v. Blair, 53 N.C. App. 233, 280 S.E.2d 467 (1981); Lassiter v. Faison, 111 N.C. App. 206, 432 S.E.2d 373 (1993).


§ 28A-19-4. Payment of claims and charges.

As soon as the personal representative or collector is possessed of sufficient means over and above the other costs of administration, the personal representative or collector shall pay the year's allowances in the amounts and in the manner prescribed in G.S. 30-15 to 30-33. Prior to the date specified in the general notice to creditors as provided for in G.S. 28A-14-1, the personal representative or collector may pay such other claims and charges as the personal representative or collector deems in the best interest of the estate if the total assets are sufficient to pay all claims and charges against the estate.

History

(1973, c. 1329, s. 3; 1977, c. 446, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "the personal representative or collector" for "he."

§ 28A-19-5. Contingent or unliquidated claims.

  1. If a contingent or unliquidated claim becomes absolute before the distribution of the estate of the decedent, it shall be paid in the same manner as absolute claims of the same class. In other cases the clerk of superior court may provide for the payment of contingent or unliquidated claims in any one of the following ways:
    1. The creditor and the personal representative or collector may determine, by agreement, arbitration, or compromise, the value of the contingent or unliquidated claim, according to its probable present worth, and with the approval of the clerk of superior court, it may be allowed and paid in the same manner as an absolute claim.
    2. The clerk of superior court may order the personal representative or collector to retain sufficient funds to pay the claim if and when the same becomes absolute, and order distribution of the balance of the estate.
    3. The clerk of superior court may order distribution of the estate as though the contingent or unliquidated claim did not exist, but the heirs and devisees of the estate of the decedent are liable to the creditor to the extent of the estate received by them, if the contingent or unliquidated claim thereafter becomes absolute; and the court may require such heirs and devisees to give bond for the performance of their liability to the contingent or unliquidated creditor.
    4. Such other method as the clerk of superior court may order.
  2. With respect to a contingent or unliquidated claim rejected by a personal representative pursuant to G.S. 28A-19-16, the claimant may, within the three-month period prescribed by G.S. 28A-19-16, file a petition for an order of the clerk of superior court in accordance with subsection (a) of this section, provided that nothing in this section shall require the clerk of superior court to hear and determine the validity of, priority of, or amount of a contingent or unliquidated claim that has not yet become absolute.

History

(1973, c. 1329, s. 3; 2011-344, s. 4; 2017-102, s. 10.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted "or unliquidated" in the section catchline; added the subsection (a) designation; and added subsection (b).

Session Laws 2017-102, s. 10, effective July 12, 2017, substituted "has not yet become absolute" for "has yet become absolute" at the end of subsection (b).

CASE NOTES

Applied in In re Watson, 70 N.C. App. 120, 318 S.E.2d 544 (1984).

Cited in Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979).


§ 28A-19-6. Order of payment of claims.

  1. After payment of costs and expenses of administration, the claims against the estate of a decedent must be paid in the following order:
  2. Notwithstanding subsection (a) of this section, if payment of the commissions of the personal representative under G.S. 28A-23-3(g) would cause the estate to be unable to pay all claims against the estate of a decedent, then the commissions shall be limited to the amount allowed under G.S. 28A-23-3(a).

First class. Claims which by law have a specific lien on property to an amount not exceeding the value of such property.

Second class. Funeral expenses to the extent of three thousand five hundred dollars ($3,500). This limitation shall not include burial place or gravestone. The preferential limitation herein granted shall be construed to be only a limit with respect to preference of payment and shall not be construed to be a limitation on reasonable funeral expenses which may be incurred; nor shall the preferential limitation of payment in the amount of three thousand five hundred dollars ($3,500) be diminished by any Veterans Administration, social security or other federal governmental benefits awarded to the estate of the decedent or to the decedent's beneficiaries.

Third class. Costs associated with gravestones and reasonable costs for the purchase of a suitable burial place as provided in G.S. 28A-19-9 to the extent of one thousand five hundred dollars ($1,500). The preferential limitation herein granted shall be construed to be only a limit with respect to preference of payment and shall not be construed to be a limitation on reasonable gravestone or burial place expenses which may be incurred; nor shall the preferential limitation of payment in the amount of one thousand five hundred dollars ($1,500) be diminished by any Veterans Administration, social security or other federal governmental benefits awarded to the estate of the decedent or to the decedent's beneficiaries.

Fourth class. All dues, taxes, and other claims with preference under the laws of the United States.

Fifth class. All dues, taxes, and other claims with preference under the laws of the State of North Carolina and its subdivisions.

Sixth class. Judgments of any court of competent jurisdiction within the State, docketed and in force, to the extent to which they are a lien on the property of the decedent at the decedent's death. The Department of Health and Human Services is a sixth-class creditor for purposes of determining the order of claims against the estate; provided, however, that judgments in favor of other sixth-class creditors docketed and in force before the Department seeks recovery for medical assistance shall be paid prior to recovery by the Department.

Seventh class. Wages due to any employee employed by the decedent, which claim for wages shall not extend to a period of more than 12 months next preceding the death; or if such employee was employed for the year current at the decease, then from the time of such employment; for medical services within the 12 months preceding the decease; for drugs and all other medical supplies necessary for the treatment of such decedent during the last illness of such decedent, said period of last illness not to exceed 12 months.

Eighth class. A claim for equitable distribution.

Ninth class. All other claims.

History

(1868-9, c. 113, s. 24; Code, s. 1416; Rev., s. 87; C.S., s. 93; 1941, c. 271; 1955, c. 641, s. 1; 1967, c. 1066; 1973, c. 1329, s. 3; 1981, c. 383, ss. 1, 2; 1987, c. 286; 1995, c. 262, s. 8; 2005-180, s. 1; 2005-388, s. 2; 2009-288, s. 1; 2011-344, s. 4; 2013-378, s. 4.)

Cross References. - As to funeral expenses, see G.S. 28A-19-8.

As to authority to provide for gravestones, see G.S. 28A-19-9.

As to perpetual care of cemetery lot, see G.S. 28A-19-10.

As to commissions allowed representatives, see G.S. 28A-23-3.

As to counsel fees allowable to attorneys serving as representatives, see G.S. 28A-23-4.

As to disbursement by clerk of superior court, see G.S. 28A-25-6.

Effect of Amendments. - Session Laws 2005-180, s. 1, in (a), inserted the present 8th paragraph, and substituted "Eighth" for "Seventh" in the last paragraph. See Editor's Note for effective date and applicability.

Session Laws 2005-388, s. 2, effective January 1, 2006, and applicable to commissions paid on or after that date, designated the existing provisions as subsection (a); and added subsection (b).

Session Laws 2009-288, s. 1, effective October 1, 2009, and applicable to estates of individuals dying on or after that date, in subsection (a), in the third paragraph, substituted "three thousand five hundred dollars ($3,500)" for "two thousand five hundred dollars ($2,500)" twice, and substituted "burial place" for "cemetery lot" in the second sentence; added the present fourth paragraph, and substituted "Fourth class" through "Ninth class" for "Third class" through "Eighth class" respectively.

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subsection (a), substituted "the decedent's" for "his or her," or similar language.

Session Laws 2013-378, s. 4, effective October 1, 2013, added the second sentence in the paragraph entitled "Sixth class" in subsection (a).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

The intention of the legislature is that the assets of a decedent shall be administered, as far as may be done, in one proceeding, upon proper safeguards, for the benefit of all the creditors. Atkinson v. Ricks, 140 N.C. 418, 53 S.E. 230 (1906).

Priorities Among Creditors Established. - This section was only designed to recognize priorities among the creditors of the deceased and to establish the order of payment between claimants who have valid debts against the deceased. It was never intended to create a liability which did not otherwise exist. Bowen v. Daugherty, 168 N.C. 242, 84 S.E. 265 (1915).

Recognizing priority of classes, this section provides for the administration of assets for the benefit of all the creditors, according to definite and established rules. Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337, 171 S.E. 368 (1933).

Strict Construction. - This section, being in derogation of the equity of a pro rata distribution, should be strictly construed so as not to confer a priority over other creditors unless it is clearly called for. Baker v. Dawson, 131 N.C. 227, 42 S.E. 588 (1902); Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244, 189 S.E. 766 (1937); Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

If decedent's estate is not sufficient to pay his debts in full, then they are to be paid in classes, with those of the last class, if and when reached, sharing ratably in what is left. Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936).

Duty of Representative. - To carry out the order designated by this section is a duty of the representative. State v. Oliver, 104 N.C. 458, 10 S.E. 709 (1889).

Testator Cannot Change Statutory Priority. - A testator may not so dispose of his estate as to avoid the payment of his debts in accordance with the priorities fixed by this section. First Sec. Trust Co. v. Lentz, 196 N.C. 398, 145 S.E. 776 (1928).

Where debtor's lands are sold under order of court to make assets, proceeds remain real estate until all liens are discharged, and are to be applied to payment of liens in the order of their priority, and only the residue, if any, is payable to administrator as personal property to be distributed in the order provided by this section. Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920 (1946), citing Murchison v. Williams, 71 N.C. 135 (1874). See Williams v. Johnson, 230 N.C. 338, 53 S.E.2d 277 (1949).

Creditor Must First Exhaust Security. - Upon the death of an obligor the administration laws step in and determine the settlement of his estate. These have heretofore been construed by the Supreme Court to favor the bankruptcy rule. Thus a secured creditor is required to exhaust his security and then prove his claim for any balance still remaining or unpaid. Rierson v. Hanson, 211 N.C. 203, 189 S.E. 502 (1937).

Holder of Secured Note Must Exhaust Security and Then File Claim for Balance. - The holder of a note executed or assumed by the deceased, and secured by a deed of trust or mortgage, must first exhaust the security and apply the same on the debt, and may then file a claim against the estate for the balance due, if any. But the holder of such note may not file claim and receive pro rata dividend on the basis of the full claim. Montsinger v. White, 240 N.C. 441, 82 S.E.2d 362 (1954).

Execution on a personal money judgment after the death of the debtor is barred. The holder of the judgment must look to the duly appointed administrator for payment of the judgment according to the priorities prescribed by this section. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903 (1976), rev'd on other grounds, 292 N.C. 692, 235 S.E.2d 166 (1977).

Validity of Unrecorded Chattel Mortgage Not Affected. - This statutory provision does not bear upon whether an unrecorded chattel mortgage, valid as against the intestate, is to like extent valid against his estate. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957).

This section creates no preference for payment on bank stock out of the assets of the estate of a deceased stockholder, and none results from the application of the pertinent principles of equity. Hood v. Darden, 206 N.C. 566, 174 S.E. 460 (1934).

Claim by Former Spouse. - Distributive award that the trial court entered in favor of an ex-wife after her former husband died was not part of the husband's estate, and the trial court properly ordered the husband's personal representative to pay the award before she paid claims against the estate. Painter-Jamieson v. Painter, 163 N.C. App. 527, 594 S.E.2d 217 (2004).

Superior court erred in dismissing an ex-wife's complaint - arising from an equitable distribution award ordered (ED Order) by the district court against her ex-husband, prior to his death - as untimely because, while the claim was not time-barred, the wife's claim for a declaratory judgment was directly related to enforcement of the ED Order, was not a claim against the estate, and had to be enforced in the district court, which had exclusive jurisdiction over the enforcement of its equitable distribution order. Smith v. Rodgers, 263 N.C. App. 662, 824 S.E.2d 155 (2019).

Fees of a referee taxed against an administrator are not a preferred debt under this section. Cobb v. Rhea, 137 N.C. 295, 49 S.E. 161 (1904), petition to rehear dismissed, 140 N.C. 650, 52 S.E. 1038 (1905).

Where debtor's lands are sold under order of court to make assets, no part of the proceeds may be taxed with costs of administration. However, a referee's fee by G.S. 6-21 is taxable in the discretion of the court. Williams v. Johnson, 230 N.C. 338, 53 S.E.2d 277 (1949).

Cited in In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

II. SPECIFIC LIENS ON PROPERTY.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

The evident purpose of this section relating to debts of the first class is to benefit the estate, particularly the creditors thereof next in line for payment. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

No Equity Preserved in Land in Which Estate Has No Interest. - Since the priority of the first class is limited to a situation where the value of the property equals or exceeds the amount of the specific lien thereon, the personal representative may preserve any equity for the benefit of other creditors and of beneficiaries. But where the estate and its creditors and beneficiaries have no right, title or interest in the real property on which the creditor has a specific lien, no equity can be preserved. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

Notes Secured by Liens on Lands Held by Entireties. - Husband and wife were jointly and severally liable on notes secured by liens on lands held by them by entireties. Upon the death of the husband, the liability of his estate for one half the balance due on the notes at the time of his death is not a debt coming within the first class of priority, since even though the debt is secured by specific lien on the property, the property is not an asset of the estate. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

A deed of trust executed to secure a debt which by laws had a specific lien on property, as provided by the first class, has priority over the payment of taxes provided for eo nomine in the third class. Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337, 171 S.E. 368 (1933).

Judgment Lien Is Not "Specific Lien on Property". - The lien of a docketed judgment, which is eo nomine put in the fifth class, is not a "specific lien on property," unless made so by its terms, as to come within the first class mentioned in this section. Stewart v. Doar, 205 N.C. 37, 169 S.E. 804 (1933).

But Section Does Not Nullify Judgment Lien. - There is nothing in this section, or in any other provision of the law, that indicates intent to nullify the lien of a docketed judgment or to destroy any right acquired under the law prior to the death of the judgment debtor. Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920 (1946).

Tax Liens Take Priority Over Estate Administration Costs. - The conflict between this section and G.S. 105-356 was resolved in favor of city and county/appellants who sought to recover back taxes and interest through a foreclosure proceeding on property, although the guardian ad litem and public administrator asserted that such foreclosure would cause the tax lien to take precedence over the costs of estate administration in violation of this section and would result in inequity should the sale fail to render sufficient funds to cover both taxes and costs. City of Durham v. Hicks, 135 N.C. App. 699, 522 S.E.2d 583 (1999).

III. FUNERAL EXPENSES.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Funeral and Medical Expenses Are of Debtor Only. - The funeral and medical expenses referred to in the paragraphs designated "Second class" and "Sixth class" are those of the debtor, and not of his wife, child or tenants. Baker v. Dawson, 131 N.C. 227, 42 S.E. 588 (1902).

Husband's estate is liable for funeral expenses of his predeceased wife, in preference to the beneficiaries under his will. Bowen v. Daugherty, 168 N.C. 242, 84 S.E. 265 (1915).

Third Party Paying. - The provisions of the paragraph designated "Second class," inure to the benefit of one who after having paid such expenses as a matter of affection and duty wants to recover the same from the estate. Ray v. Honeycutt, 119 N.C. 510, 26 S.E. 127 (1896).

IV. DUES, TAXES, AND CLAIMS UNDER FEDERAL LAW.

.

Editor's Note. - The case below was decided under former Chapter 28 or law prior thereto.

Federal Estate Tax. - See Wachovia Bank & Trust Co. v. Green, 236 N.C. 654, 73 S.E.2d 879 (1953); Tolson v. Young, 260 N.C. 506, 133 S.E.2d 135 (1963); Adams v. Adams, 261 N.C. 342, 134 S.E.2d 633 (1964).

V. DUES, TAXES, AND CLAIMS UNDER STATE LAW.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Tax Judgment under G.S. 105-375 Does Not Affix Lien on Property. - As a judgment against the property of the listed taxpayer, directing the sale of the property to satisfy the tax lien, the tax judgment established under G.S. 105-375 is not a "debt" within the meaning of former G.S. 28-105, nor does it affix a lien to the taxpayer's property. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903 (1976), rev'd on other grounds, 292 N.C. 692, 235 S.E.2d 166 (1977).

It represents a final order for the sale of the delinquent taxpayer's property. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903 (1976), rev'd on other grounds, 292 N.C. 692, 235 S.E.2d 166 (1977).

Distinction Between Tax Judgment Strictly in Rem and in Personam Judgment. - See Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903 (1976), rev'd on other grounds, 292 N.C. 692, 235 S.E.2d 166 (1977).

Method of Collecting Taxes. - Former G.S. 105-412 indicated that the ordinary methods of collecting taxes by a sheriff do not apply to collection of taxes from a decedent's estate. Sherrod v. Dawson, 154 N.C. 525, 70 S.E. 739 (1911).

Taxes Assessed against Life Tenant. - See Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936).

Tax-Sale Certificate Is Not a Preferred Claim. - A tax-sale certificate in the hands of a remainderman, representing taxes paid by the remainderman during the lifetime of the life tenant, may not be proved as a preferred claim against the estate of the life tenant, since the remainderman's sole remedy upon the tax-sale certificate is by foreclosure under the provisions of former C.S., G.S. 8028 (see now G.S. 47-108.25). Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936).

Former provisions that taxes should be paid by the personal representative in the third class of priority had no application to the statutory action to foreclose a tax-sale certificate. Guilford County v. Estates Admin., 213 N.C. 763, 197 S.E. 535 (1938).

Nor Are Assessments for Public Improvements. - See Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936).

This section has no application to the payment of assessments made against land by a municipality for the purpose of improving streets. City of High Point v. Brown, 206 N.C. 664, 175 S.E. 169 (1934); Town of Saluda v. County of Polk, 207 N.C. 180, 176 S.E. 298 (1934).

No Application to Charges for Water and Gas Connections. - Charges for water and gas connections, incurred during the lifetime of a life tenant and unpaid at his death, do not constitute a preferred claim against his estate as taxes assessed on the estate prior to his death, since in no event would such charges stand upon a higher plane than assessments for permanent improvements. Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24 (1936).

VI. JUDGMENT LIENS.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Application of Fifth Class Provision to Funds in Administrator's Hands. - The provision of the paragraph designated "Fifth class" applies to funds in the administrator's hands. Matthews v. Peterson, 150 N.C. 134, 63 S.E. 721 (1909).

Judgments Paid Out of Personalty. - The paragraph designated "Fifth class" does not mean that the judgment shall be paid out of the realty of the decedent upon which it has become a lien. When a debtor dies, against whom there is a judgment docketed, his land descends to his heirs or vests in his devisees, and his personal property vests in his administrator or executor, just as if there were no judgment against him, and the whole estate is to be administered just as if there were no judgment, that is to say, the personal property must be sold, if necessary, and all the personal assets collected, and out of these personal assets all the debts must be paid, if there be enough to pay all docketed judgments as well as others. The reason for this mode of administration is that, although a lien on land exists, the judgment should be paid out of the personal estate, if any, in exoneration of the land for the benefit of the heir or devisee. Lee v. Eure, 82 N.C. 428 (1880).

Creditor Must File Claim. - If a judgment creditor wishes to share in the distribution of the personal estate of his deceased judgment debtor, and to protect himself against the running of the statute of limitations as against the debt (G.S. 1-22), he must file his claim with the personal representative of the deceased. Williams v. Johnson, 230 N.C. 338, 53 S.E.2d 277 (1949).

Extent of Lien. - If the real estate upon which the judgment is a lien is of less value than the amounts of the judgment, then the extent of the lien is the value of the land only. Jerkins v. Carter, 70 N.C. 500 (1874).

If the real estate upon which the judgment is a lien is of less value than the amount of the judgment, and a part of the lien has been paid out of the personalty (which is first liable for the payment) the extent of the lien is the difference between the value of the land and the amount paid out of the personalty. It is not the difference between the amount of the lien and the amount paid from the personalty. Murchison v. Williams, 71 N.C. 135 (1874).

When Priorities Determined. - The priorities among judgment creditors, which are dependent upon the date of their respective recordation, are to be determined as they existed at the death of the debtor, after which they remain unaffected by lapse of time until barred by the statute of limitations or by executions issued upon the judgments. Town of Tarboro v. Penders, 153 N.C. 427, 69 S.E. 425 (1910); Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337, 171 S.E. 368 (1933).

Priority over Mortgage. - Where realty sold under order of court to make assets is subject to a docketed judgment and a subsequently recorded mortgage, the judgment must be satisfied in full before application of any part of the proceeds to the mortgage or to the payment of other debts. Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920 (1946).

Statute of Limitations Not Affected. - The fact that judgments docketed and in force, which have become a lien upon decedent's property at the date of his death, have priority over certain other claims, does not stop the running of the statute of limitations upon such judgments. Daniel v. Laughlin, 87 N.C. 433 (1882).

The expiration of the judgment lien terminates the authority of the representative to pay such lien. The judgment lien must be in force at the time of payment. Matthews v. Peterson, 150 N.C. 132, 63 S.E. 721 (1909).

Application of Proceeds under a Consent Judgment to Sell Lands. - Where a consent judgment provided that a commissioner be appointed to sell certain lands of a deceased person and pay the net proceeds to the administratrix of the deceased to pay the debts of his estate, the distribution of these proceeds was thereunder to be made under the provisions of this section, and a judgment ordering them to be paid to satisfy the lien of a judgment creditor on the lands of the estate, adjudging it a prior lien, was reversible error. First Nat'l Bank v. Mitchell, 191 N.C. 190, 131 S.E. 656 (1926).

VII. MEDICAL EXPENSES.

.

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

The words "medical services," include all services rendered to the deceased, because of his illness, upon the advice of his physician, which were reasonably necessary for his care and comfort and for his proper treatment by his physicians. Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244, 189 S.E. 766 (1937).

Board of Graduate Nurses Included in Medical Services. - The board of graduate nurses, who attended the deceased while he was a patient in plaintiffs' hospital, was a claim included in the term "medical services" as used in this section. Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244, 189 S.E. 766 (1937).

Termination of Old Age Assistance. - When old age assistance was terminated by death of the recipient, the county's claim against the recipient's estate under former G.S. 108-30.1 had to be satisfied out of the personal property in the estate to the extent it was sufficient to pay claims of the sixth class before resorting to the real property for satisfaction of the debt. Brunswick County v. Vitou, 6 N.C. App. 54, 169 S.E.2d 234 (1969).

Opinions of Attorney General

Priority of Portion of Funeral Bill Not a Limitation on Amount. - See opinion of Attorney General to Mrs. Martha O. Comer, CSC, 40 N.C.A.G. 30 (1970), issued under prior law.

§ 28A-19-7. Satisfaction of claims other than by payment.

Notwithstanding any provision of law to the contrary,

  1. If a decedent was liable in person at the time of the decedent's death for the payment or satisfaction of any claim or the performance, satisfaction, or discharge of any liability or obligation, whether joint or several, primary or secondary, direct or contingent, or enforceable in any other manner or form whatsoever, or
  2. If only the property of a decedent or some part thereof was liable at the time of the decedent's death for the payment or satisfaction of any claim or the performance, satisfaction, or discharge or any liability or obligation, whether joint or several, primary or secondary, direct or contingent, or enforceable in any other manner or form against the property of the decedent but not against the decedent or the decedent's estate as a personal liability, and
  3. If any person other than the personal representative of the decedent is willing to assume the liability of the decedent and of the decedent's estate or to receive or accept property of the decedent subject to such liability in cases where the decedent was not personally liable and the creditor, obligee, or other person for whose benefit such liability exists is willing to accept an agreement with that effect and to discharge the personal representative of the decedent and the estate of the decedent from the payment, satisfaction, or discharge of such liability, and
  4. If such creditor, obligee, or other person for whose benefit such liability exists and the person assuming the liability or the person receiving or accepting property of the decedent subject to such liability shall execute, acknowledge, and deliver in the form and manner required for deeds conveying real property in North Carolina, an agreement between themselves as to such assumption of liability or the receipt or acceptance of property of the decedent subject to such liability which shall contain a release, as hereinafter defined, discharging the personal representative of the decedent and the decedent's estate from the payment, satisfaction, or discharge of the liability, and thereafter the said creditor, obligee, or other person for whose benefit such liability exists shall have no remedy for the enforcement thereof except against the person assuming it or against the property subject to it as provided in the said agreement; then upon the filing with the clerk of superior court having jurisdiction over the estate and the personal representative of one duplicate original of the said agreement, or of a certified copy thereof if it is a duly recorded instrument, the same shall be accepted in the same manner as a voucher showing payment or discharge of the said liability in the accounts of the personal representative of the decedent.

The word "person" as used in this section shall include one or more natural persons, corporations, partnerships, or entities having the power to own property or to make contracts in regard thereto. The word "release" as used in this section shall include a covenant not to sue in any case in which an unqualified release or discharge of one obligee would discharge another, and if the liability involved is a negotiable instrument or other instrument transferable to a holder in due course, such release shall not be effective unless notice thereof is endorsed on the instrument involved, dated, and signed by the creditor or the holder of the indebtedness or person for whose benefit the property is encumbered.

History

(1965, c. 1149; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted "the decedent's" for "his," or similar language.

§ 28A-19-8. Funeral expenses of decedent.

  1. Any person authorized under G.S. 130A-420 to dispose of a decedent's body may bind a decedent's estate for funeral expenses and related charges, including interest and finance charges, in accordance with this section, including the execution and delivery on behalf of the estate of any agreements, promissory notes, and other instruments relating to the estate. Whether or not a personal representative of the estate has been appointed at the time the expenses are incurred, funeral expenses of a decedent, together with interest or finance charges if financed by the funeral establishment or a third-party creditor, or advanced by a health care agent exercising authority described in G.S. 32A-19(b), shall be considered as an obligation of the estate of the decedent and the decedent's estate shall be primarily liable for those expenses to the funeral establishment that provided the funeral service, to any third-party creditor that finances the payment of those expenses, or to any other person described in this section who has paid such expenses.
  2. The provisions of this section shall not affect the application of G.S. 28A-19-6 or G.S. 130A-420.

History

(1969, c. 610, s. 1; 1973, c. 1329, s. 3; 1999-166, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted "or advanced by a health care agent exercising authority described in G.S. 32A-19(b)" near the middle of subsection (a).

Legal Periodicals. - For legislative survey of trusts and estates, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Section Does Not Limit Collection of Expenses Exclusively to an Estate. - This section does not limit collection of funeral expenses exclusively to the estate. Parrish Funeral Home v. Pittman, 104 N.C. App. 268, 409 S.E.2d 327 (1991).

Other Person's Promise to Pay Funeral Expenses. - Defendant's alleged promise to pay funeral expenses for his deceased father if the estate did not was a promise to pay the debt of another, which is void by law unless in writing. Parrish Funeral Home v. Pittman, 104 N.C. App. 268, 409 S.E.2d 327 (1991), holding, however, that as defendants did not specifically plead the statute of frauds, it was not available as a defense.


§ 28A-19-9. Gravestone and burial place authorized.

  1. If the decedent has duly appointed a health care agent pursuant to Article 3 of Chapter 32A of the General Statutes to provide for these expenses, the health care agent may make arrangements to provide a suitable gravestone to mark the grave of the testator or intestate, and the personal representative shall reimburse the health care agent subject to the monetary limitations and procedures contained in this section. If the decedent did not have a health care agent, or if the health care agent does not act, it is lawful for a personal representative or the decedent's duly appointed health care agent to provide a suitable gravestone to mark the graves of the testator or intestate and to pay for the cost of erecting the same. The cost thereof shall be treated as a third class claim under G.S. 28A-19-6 and credited as such in final accounts. The costs thereof shall be in the sound discretion of the personal representative or health care agent, having due regard to the value of the estate and to the interests of creditors and needs of the surviving spouse and the heirs and devisees of the estate. Where the personal representative or health care agent desires to spend more than one thousand five hundred dollars ($1,500) for the purpose of a gravestone, and the will does not grant specific authority to the personal representative for such expenditures in excess of one thousand five hundred dollars ($1,500), the personal representative shall file a petition before the clerk of the court, and such order as will be made by the court shall specify the amount to be expended for such purpose. In specifying the amount, the clerk may consider the value of the estate. To the extent that the personal representative or health care agent advances the costs for providing a suitable gravestone to mark the graves of the testator or intestate and for erecting the same, the advancement shall be considered as an obligation of the decedent's estate, and the decedent's estate shall be primarily liable for the costs for providing a suitable gravestone to mark the graves of the testator or intestate and for erecting the same.
  2. It is lawful for the decedent's duly appointed health care agent to provide a suitable burial place for the testator or intestate. If the decedent did not have a health care agent, or if the health care agent does not act, then the personal representative may provide a suitable burial place for the testator or intestate. The cost of a suitable burial place shall be in the sound discretion of the personal representative or the decedent's health care agent, having due regard to the value of the estate and to the interests of creditors and needs of the surviving spouse and the heirs and devisees of the estate, and shall be treated as a third class claim under G.S. 28A-19-6.

History

(1905, c. 444; Rev., s. 102; C.S., s. 108; 1925, c. 4; 1941, c. 102; 1951, c. 373; 1973, c. 1329, s. 3; 2009-288, s. 2; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2009-288, s. 2, effective October 1, 2009, and applicable to estates of individuals dying on or after that date, rewrote the section.

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

CASE NOTES

This section was held inapplicable where executors, in obedience to testamentary instructions, expended more than $100 [now $1,500] for a gravestone without order of court, when the estate appeared to be solvent, though in fact it was insolvent. In re Estate of Bost, 211 N.C. 440, 190 S.E. 756 (1937), decided under prior law.


§ 28A-19-10. Perpetual care of cemetery lot.

It shall be lawful for a personal representative to provide for perpetual care for the lot upon which is located the grave of the testator or intestate, and the cost thereof shall be paid and credited as such in final accounts: Provided, that the provisions of this section shall be applicable to an interment made in a cemetery authorized by law to operate as a perpetual-care cemetery or association, and the cost thereof shall be in the sound discretion of the personal representative having due regard to the value of the estate and to the interest of the surviving spouse and the heirs and devisees of the estate. Provided, where the personal representative desires to spend more than two hundred fifty dollars ($250.00) for such purpose, and the will does not grant specific authority to the personal representative for such expenditure in excess of two hundred fifty dollars ($250.00), the personal representative shall file the personal representative's petition before the clerk of the superior court and such order as will be made by the court shall specify the amount to be expended for such purpose.

History

(1945, c. 756; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's" for "he" and similar language.

§ 28A-19-11. Pleading statute of limitations.

When claims are not barred pursuant to G.S. 28A-19-3, it shall be within the discretion of the personal representative or collector acting in good faith to determine whether or not any applicable statute of limitations shall be pleaded to bar a claim which the personal representative or collector believes to be just. The personal representative's or collector's admission of such claim or the personal representative's or collector's decision not to plead the statute in an action brought on the claim shall, in the absence of any showing of collusion or bad faith, be binding on all persons interested in the estate.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative's or collector's" for "he" and similar language in three places.

§ 28A-19-12. Claims due representative not preferred.

No property or assets of the decedent shall be retained by the personal representative or collector in satisfaction of the personal representative's or collector's own claim, in preference to others of the same class. Prior to payment of the personal representative's or collector's own claim the personal representative or collector shall receive written approval of the clerk of superior court. If the clerk does not approve the claim the personal representative or collector may refer the claim as a disputed claim under the provisions of G.S. 28A-19-15. The provisions of G.S. 28A-19-1 and G.S. 28A-19-3 shall not apply to such claims and the personal representative or collector may present the personal representative's or collector's own claim at any time prior to the filing of the personal representative's or collector's final account.

History

(1868-9, c. 113, s. 28; Code, s. 1420; Rev., s. 89; C.S., s. 96; 1973, c. 1329, s. 3; 1979, c. 525, s. 4; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section substituted "the personal representative's or collector's" for "his" or similar language; and inserted "or collector" following "personal representative" in three places.

CASE NOTES

Attorneys' Fees and Commissions. - This section does not apply to the payment of attorneys' fees and commissions. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Claims by Personal Representative. - This section applies to "claims" against the estate, such as liens against property, funeral expenses, taxes, and judgments, where the claimant also happens to be the personal representative of the estate. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Cited in Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979).


§ 28A-19-13. No preference within class.

No personal representative or collector shall give to any claim any preference whatever, either by paying it out of its class or by paying thereon more than a pro rata proportion in its class.

History

(1868-9, c. 113, ss. 25, 26; Code, ss. 1417, 1418; Rev., s. 88; C.S., s. 94; 1973, c. 1329, s. 3.)

CASE NOTES

Prohibition embodied in this section is against the representative. Hence, a solvent person in his lifetime may by his will make preferences in favor of persons who would otherwise be postponed. But, as upon his death his effects and property vest in his representative who must pay the debts first, if the estate is insolvent the representative cannot assent to the payment of preferences before the payment of prior debts as prescribed in the preceding section. The result is that preferences made by an insolvent decedent are rendered ineffective for all purposes. Moore v. Byers, 65 N.C. 240 (1871), decided under prior law.

Paying by Honest Mistake. - If the representative pays a debt belonging to an inferior class in preference to a superior debt, even though he does it through an honest mistake, he is chargeable for the same. Moye v. Albritton, 42 N.C. 62 (1850), decided under prior law.


§ 28A-19-14. Claims not due rebated.

Claims owed by the estate but not yet due may be paid by the personal representative on a rebate of interest thereon for the time unexpired.

History

(1868-9, c. 113, s. 27; Code, s. 1419; Rev., s. 90; C.S., s. 97; 1973, c. 1329, s. 3.)

§ 28A-19-15. Disputed claim may be referred.

If the personal representative doubts the justness of any claim so presented, the personal representative may enter into an agreement, in writing, with the claimant, to refer the matter in controversy, whether the same be of a legal or equitable nature, to one or more disinterested persons, not exceeding three, whose proceedings shall be the same in all respects as if such reference had been ordered in an action. Such agreement to refer, and the award thereupon, shall be filed in the clerk's office where the letters were granted, and shall be a lawful voucher for the personal representative. The same may be impeached in any proceeding against the personal representative for fraud therein: Provided, that the right to refer claims under this section shall extend to claims in favor of the estate as well as those against the estate.

History

(1868-9, c. 113, s. 34; 1872-3, c. 141; Code, s. 1426; Rev., s. 92; C.S., s. 99; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative may enter" for "he may enter" in the first sentence.

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Purpose of Section. - This section was intended to create an expeditious and inexpensive mode by which controversies between executors, administrators or collectors and claimants against the estates of testators and intestates may be settled and determined. State v. Potter, 107 N.C. 415, 12 S.E. 55 (1890); In re Reynolds' Estate, 221 N.C. 449, 20 S.E.2d 348 (1942).

Proceeding authorized by this section is based upon agreement of the parties. It is not an action, nor a consent reference under the Code. It lacks ordinary incidents of a special proceeding which is begun before the clerk. In re Reynolds' Estate, 221 N.C. 449, 20 S.E.2d 348 (1942).

Not Applicable to Creditor's Suit under Former G.S. 28-122. - The proceedings authorized by this section are between a creditor and the personal representative, and had no application to creditor's bill under former G.S. 28-122 instituted to take the administration into the hands of the court. Dunn v. Beaman, 126 N.C. 766, 36 S.E. 172 (1900).

Effect of Agreement to Arbitrate. - An agreement to arbitrate and to award under this section is competent evidence to prove the indebtedness of the estate. Such an agreement is, where there is no fraud or collusion, binding upon the heirs even though they were not parties to the proceedings. Lassiter v. Upchurch, 107 N.C. 411, 12 S.E. 63 (1890).

Finding of Arbitrators as Judgment. - The finding of arbitrators under this section is equivalent to a judgment, and the proceedings in which it is rendered can be impeached only for fraud or collusion. Lassiter v. Upchurch, 107 N.C. 411, 12 S.E. 63 (1890).

Under a fair interpretation of this section, the award of the referees, unless impeached for fraud and collusion, should have at least the effect of determining and putting an end to the controversy, if not the effect of a judgment in an action between the parties. In re Reynolds' Estate, 221 N.C. 449, 20 S.E.2d 348 (1942).

Who May Impeach Result. - Only those having a pecuniary interest in the estate may be heard to impeach the result for collusion or fraud. In re Reynolds' Estate, 221 N.C. 449, 20 S.E.2d 348 (1942).

Appeal. - Where a claimant and the personal representative voluntarily execute a written agreement referring the claim to disinterested persons under this section, the referees are not required to decide the matter according to law, and their report is conclusive and neither party is entitled to appeal therefrom upon exceptions, there being no provisions in this section for appeal, and the proceeding being neither a civil action nor a special proceeding nor a judicial order. In re Reynolds' Estate, 221 N.C. 449, 20 S.E.2d 348 (1942).

Vacation of Reference. - Where clerk appointed a referee to hear claims against the estate of a deceased under this section, and thereafter approved the report of the referee, but on appeal the superior court ruled that the clerk had no authority in the premises and this ruling was unchallenged, such ruling vacated the supposed reference, and ended the matter. In re Shutt, 214 N.C. 684, 200 S.E. 372 (1939).

Effect of Failure to Refer Claim. - Where a claim against an executor is rejected by him in writing and is not referred to in accordance with the provisions of this section, an action thereon is barred under G.S. 28A-19-16 if not brought within six months (now three months) after the rejection of the claim by the executor. Batts v. Batts, 198 N.C. 395, 151 S.E. 868 (1930).

Agreement to Refer Lacking. - Where the executor's letter to claimant merely stated that he "would suggest" that claimant "file a notice of hearing with the Clerk of Court" the language did not show that there was any agreement to refer the matter. In re Estate of Neisen, 114 N.C. App. 82, 440 S.E.2d 855, cert. denied, 336 N.C. 606, 447 S.E.2d 397 (1994).


§ 28A-19-16. Disputed claim not referred barred in three months.

If a claim is presented to and rejected by the personal representative or collector, and not referred as provided in G.S. 28A-19-15, the claimant must, within three months, after due notice in writing of such rejection, commence an action for the recovery thereof, or in the case of a contingent or unliquidated claim, file a petition for an order from the clerk of superior court pursuant to G.S. 28A-19-5(b), or be forever barred from maintaining an action thereon.

History

(1868-9, c. 113, s. 35; Code, s. 1427; Rev., s. 93; 1913, c. 3, s.1; C.S., s. 100; 1961, c. 742; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Cross References. - As to effect of admission of claim by personal representative upon running of statute of limitations, see G.S. 1-22.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, deleted "or after some part of the claim becomes due" following "notice in writing of such rejection" and inserted "or in the case of a contingent or unliquidated claim, file a petition for an order from the clerk of superior court pursuant to G.S. 28A-19-5(b)."

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

This statute provides the only procedure for the resolution of a rejected claim. In re Estate of Neisen, 114 N.C. App. 82, 440 S.E.2d 855, cert. denied, 336 N.C. 606, 447 S.E.2d 397 (1994).

The language of this section is positive and explicit, and the section must be enforced in accordance with the plain meaning of its terms. Morrisey v. Hill, 142 N.C. 355, 55 S.E. 193 (1906); Rutherford v. Harbison, 254 N.C. 236, 118 S.E.2d 540 (1961).

This section applies to creditors' claims against an estate and not to the interests of heirs. The cases construing this Article involve actions by creditors to recover debts. Moreover, G.S. 28A-19-3(h) expressly provides that the word "claim" as used in this Article "does not apply to claims of heirs or devisees to their respective shares or interests in the decedent's estate in their capacity as such heirs or devisees." Poteat v. Robinson, 90 N.C. App. 764, 370 S.E.2d 61 (1988).

Rejection of Claim Must Be Absolute and Unequivocal. - The rejection of a claim against an estate must be absolute and unequivocal in order to start the running of the six months (now three months) statute of limitation. Rutherford v. Harbison, 118 S.E.2d 540 (1961).

Since, when an estate responded to a former wife's claim, it stated that the claim was rejected but offered $ 1,000 in settlement of any claim that she may have had, and invited a response or counter-offer, the former wife could have reasonably inferred that negotiations were in order and a discussion might have resulted in allowance and settlement of the claim in some amount; thus, since the estate failed to absolutely and unequivocally reject the claim, the statute of limitations contained in G.S. 28A-19-16 was not triggered and did not bar the action. Elliott v. Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819, cert. denied, 358 N.C. 731, 601 S.E.2d 530 (2004).

Claim barred under this section cannot be pleaded even by way of counterclaim, in an action by the representative against the claimant, and this regardless of the fact that the general notice provided for in G.S. 28A-14-1 had not been given. Morrisey v. Hill, 142 N.C. 355, 55 S.E. 193 (1906).

Only Recourse Was to File Civil Action. - Clerk lacked jurisdiction to consider a beneficiary's claim for reimbursement of funeral expenses because once the claim was rejected by the executor, the beneficiary's only recourse was to file a civil action. In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

Husband's Claim for Funeral Expenses of Wife. - While G.S. 28A-19-6 classified funeral expenses as a debt of the estate, the amount due therefor cannot be regarded as a legacy in this State, and where a husband who has paid the funeral expenses of his wife makes claim therefor upon her executor, and the claim is rejected, and is not referred in accordance with G.S. 28A-19-15, an action on the claim is barred by failure to bring it within six months (now three months) from the time of rejection of the claim by the executor. Batts v. Batts, 198 N.C. 395, 151 S.E. 868 (1930).

A party asserting the right as assignee of an insurance policy to retain the proceeds thereof for obligations he contends were secured by the assignment is not barred, under this section, from asserting such right after the lapse of more than six months (now three months) as against the administrator of the deceased insured in the administrator's action to recover the funds, the defense not constituting a prosecution of a claim against the administrator which had been denied. Sellars v. First Nat'l Bank, 214 N.C. 300, 199 S.E. 266 (1938).

Three Calendar Months Not Equal to 90 Days. - Plaintiff had three calendar months, not 90 days, in which to file an action, thus the trial court erred in dismissing plaintiff's cause of action based on the statute of limitations. Storey v. Hailey, 114 N.C. App. 173, 441 S.E.2d 602 (1994).

Cited in Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979); Gelder & Assocs. v. Huggins, 52 N.C. App. 336, 278 S.E.2d 295 (1981); Kimrey v. Dorsett, 10 Bankr. 466 (Bankr. M.D.N.C. 1981); Blalock v. Dandelake, 90 N.C. App. 461, 368 S.E.2d 891 (1988); In re Foreclosure of the Deed of Trust from Manning, 228 N.C. App. 591, 747 S.E.2d 286 (2013).


§ 28A-19-17. No lien by suit against representative.

No lien shall be created by the commencement of a suit against a personal representative or collector.

History

(1868-9, c. 113, s. 41; Code, s. 1432; Rev., s. 95; C.S., s. 102; 1973, c. 1329, s. 3.)

§ 28A-19-18. When costs against representative allowed.

No costs shall be recovered in any action against a personal representative or collector unless it appears that payment was unreasonably delayed or neglected, or that the defendant refused to refer the matter in controversy, in which case the court may award such costs against the defendant personally, or against the estate, as may be just.

History

(1868-9, c. 113, s. 38; Code, s. 1429; Rev., s. 97; C.S., s. 103; 1973, c. 1329, s. 3.)

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

The purpose of this section is to urge the representative to an early and prompt settlement of claims against the deceased, and to protect the estate, when proper diligence was used, from cost needlessly incurred by the creditors in prosecuting their claims. May v. Darden, 83 N.C. 237 (1880).

Exception to G.S. 6-18 through 6-20. - This section forms an exception to G.S. 6-18 to 6-20, which are general provisions as to cost. Whitaker v. Whitaker, 138 N.C. 205, 50 S.E. 630 (1905). See also Bailey v. Hayman, 222 N.C. 58, 22 S.E.2d 6 (1942).

Not Applicable When Funds Misapplied. - In proceedings to subject a representative to liability for misapplication of the funds, as distinguished from proceedings to recover a debt out of the estate, this section does not apply, and the representative is chargeable with the cost. Valentine v. Britton, 127 N.C. 57, 37 S.E. 74 (1900).

Unreasonable Delay or Neglect. - Where an action was brought within 52 days of the qualification of the administrator, it was held that payment had not been "unreasonably delayed or neglected" within the meaning of this section. Whitaker v. Whitaker, 138 N.C. 205, 50 S.E. 630 (1905). A fortiori the same rule was applied, in May v. Darden, 83 N.C. 237 (1880), when the suit was instituted 20 days after appointment. See also Morris v. Morris, 94 N.C. 613 (1886).

Land Chargeable with Cost. - In proceedings by the creditor to subject the land to the payment of debts, the land is subject to the payment of the cost, wherever the representative can be charged with the cost under the circumstances referred to in this section. Long v. Oxford, 108 N.C. 280, 13 S.E. 112 (1891).

Burden of Proof. - The burden is on the plaintiffs to show that they are entitled to recover costs under this section. Whitaker v. Whitaker, 138 N.C. 205, 50 S.E. 630 (1905).

Appeal. - Although the general rule is that an appeal lies from a judgment for cost only, there is an exception to this rule in favor of fiduciaries, inferred from this section. May v. Darden, 83 N.C. 237 (1880).

Cited in Kimrey v. Dorsett, 10 Bankr. 466 (Bankr. M.D.N.C. 1981).

§ 28A-19-19. Claims for equitable distribution.

  1. The provisions of G.S. 28A-19-5 and G.S. 28A-19-7 shall not apply to claims for equitable distribution.
  2. The personal representative may enter into an agreement, in writing, with a claimant providing for distribution of marital or divisible property, or both, in a manner deemed by the personal representative and the claimant to be equitable. The agreement shall be filed in the clerk's office where the letters were granted and shall be a lawful voucher for the personal representative. The same may be impeached in any proceeding against the personal representative for fraud therein.
  3. Unless the claim for equitable distribution has been referred as provided in G.S. 28A-19-15, the claimant may at anytime, subject to the provisions of G.S. 28A-19-16, file an action with the district court for distribution of marital or divisible property in accordance with the provisions of G.S. 50-20.

History

(2003-168, s. 3.)

Cross References. - As to distribution by court of marital and divisible property, see G.S. 50-20.

ARTICLE 20. Inventory.

Sec.

§ 28A-20-1. Inventory within three months.

Unless the time for filing the inventory has been extended by the clerk of superior court, 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.

History

(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; 2017-158, s. 8.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the qualification of that personal representative or collector" for "his qualifications" and made similar gender-neutral changes throughout the section.

Session Laws 2017-158, s. 8, effective July 21, 2017, added "Unless the time for filing the inventory has been extended by the clerk of superior court" and made a related stylistic change at the beginning of the section.

CASE NOTES

Editor's Note. - Some of the cases below were decided under former Chapter 28 or law prior thereto.

An inventory is but prima facie evidence to charge the executor with assets, so as to call on him for proof to rebut it. Hoover v. Miller, 51 N.C. 79 (1858).

An inventory is prima facie evidence of the solvency of persons owing debts to the estate and described in the inventory. It may be shown that the personal representative made errors in describing and noting the debts. And it seems that the inventory is not evidence against an administrator de bonis non. Grant v. Reese, 94 N.C. 720 (1886).

Statement of Doubtful Debts. - Where an executor returns an inventory of debts without stating that some of the debts are doubtful, he will be held responsible for them, unless he can show that there were setoffs against them, or that the debtors were insolvent. Graham v. Davidson, 22 N.C. 155 (1838).

Where the executor inventories debts as "doubtful," prima facie he will not be chargeable with them. Gay v. Grant, 101 N.C. 206, 8 S.E. 99 (1888), petition to rehear dismissed, 105 N.C. 478, 10 S.E. 891 (1890).

Return of Joint Executors. - Either one of joint executors making a joint return of inventory is answerable for what appears thereon, if it does not show what came to the hand of the other alone. Graham v. Davidson, 22 N.C. 155 (1838).

Transfer of Funds to Another Jurisdiction. - The inventory required by this section must be filed before the transfer of moneys to another jurisdiction. Grant v. Rogers, 94 N.C. 755 (1886).

Representative May Be Compelled to Account or File Inventory. - If the personal representative has failed to file his inventory or his accounts, he can be compelled to do so upon application to the clerk of the superior court. Atkinson v. Ricks, 140 N.C. 418, 53 S.E. 230 (1906).

Failure to Accurately State Value of Account May Constitute Perjury. - The trial court did not err in denying defendant's motion to dismiss charge of perjury concerning 90-day inventory of estate, signed pursuant to this section, where defendant intentionally reported under oath that the "value" of checking account was $27,885, when in reality the checking account contained only $17,885 and the defendant had misappropriated $10,000 by depositing it into his law firm operating account. State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245 (2000).

Failure to File May Bar Commissions. - Failure to file an inventory, coupled with acts of gross negligence and want of care in the management of the estate, was held to deprive the personal representative of his right to commissions. Grant v. Reese, 94 N.C. 720 (1886); Stonestreet v. Frost, 123 N.C. 640, 31 S.E. 836 (1899).

Failure to File May Be Grounds for Removal. - Where the executor failed to file the inventory required and was also guilty of other acts of mismanagement it was held that he could be required to give bond or be removed from his office. Barnes v. Brown, 79 N.C. 401 (1878).


§ 28A-20-2. Compelling the inventory.

  1. If the inventory specified in G.S. 28A-20-1 is not filed as prescribed, the clerk of superior court must issue an order requiring the personal representative or collector to file it within the time specified in the order, not less than 20 days, or to show cause why the personal representative or collector should not be removed from office. If, after due service of the order, the personal representative or collector does not on or before the return day of the order file such inventory or obtain further time in which to file it, the clerk may remove the personal representative or collector from office or may issue an attachment against the personal representative or collector for a contempt and commit the personal representative or collector until the personal representative or collector files said inventory report.
  2. The personal representative or collector shall be personally liable for the costs of any proceeding incident to the personal representative's or collector's failure to file the inventory required by G.S. 28A-20-1. Such costs shall be taxed against the personal representative or collector by the clerk of superior court and may be collected by deduction from any commissions which may be found due the personal representative or collector upon final settlement of the estate.

History

(1868-9, c. 113, s. 9; Code, s. 1397; Rev., s. 43; C.S., s. 49; 1929, c. 9, s. 1; 1933, c. 100; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the last sentence of subsection (a), substituted "the personal representative or collector" for "he" or similar language and "commit the personal representative or collector until the personal representative or collector files" for "commit him until he files."

CASE NOTES

Clerk's Original Jurisdiction. - Under this section the clerk has original jurisdiction to remove the representative for not filing the inventory required. Edwards v. Cobb, 95 N.C. 4 (1886), decided under prior law.

Clerk Has Power to Remove Independent of Statute. - The clerk has power of removal for the failure of the administrator to discharge the duties of his office as prescribed by law. And even without invoking the aid of statute the power of removal is inherent in the office at common law, and must of necessity be so to prevent a failure of justice. Taylor v. Biddle, 71 N.C. 1 (1874), decided under prior law.


§ 28A-20-3. Supplemental inventory.

  1. Whenever any property not included in the original inventory report becomes known to any personal representative or collector or whenever the personal representative or collector learns that the valuation or description of any property or interest therein indicated in the original inventory is erroneous or misleading, the personal representative or collector shall prepare and file with the clerk of superior court a supplementary inventory in the same manner as prescribed for the original inventory. The clerk shall record the supplemental report with the original inventory.
  2. The making of the supplemental inventory shall be enforced in a manner specified in G.S. 28A-20-2.

History

(1868-9, c. 113, s. 10; Code, s. 1398; Rev., s. 44; C.S., s. 50; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the personal representative or collector shall prepare" for "he shall prepare" in subsection (a).

§ 28A-20-4. Employment of appraisers.

A personal representative or collector may, but shall not be required to, employ qualified and disinterested appraisers to assist in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets. The name and address of any appraiser shall be indicated in the inventory with the asset or assets the appraiser appraised.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the appraiser appraised" for "he appraised" at the end.

ARTICLE 21. Accounting.

Sec.

§ 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 30 days after the expiration of one year from the date of qualification of the personal representative or collector, or if a fiscal year is selected by the fifteenth day of the fourth month after the close of the fiscal year selected by the personal representative or collector, and annually on the same date 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.

History

(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; 2017-158, s. 9.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made gender-neutral changes related to "the personal representative or collector" in the first paragraph and to "The clerk of superior court" in the second paragraph.

Session Laws 2017-158, s. 9, effective July 21, 2017, in the second sentence, inserted "30 days after the expiration of one year from the date of qualification of the personal representative or collector, or if a fiscal year is selected" near the beginning, and inserted "on the same date" near the end.

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

The word "account" as used in this section means "a statement in writing of debts and credits, or of receipts and payments; a list of items of debts and credits, with their respective dates." It does not include the idea of payment and settlement. State v. Dunn, 134 N.C. 663, 46 S.E. 949 (1904).

Report showing all debts paid except a mortgage indebtedness cannot constitute a final account, since the duties and obligations of administration continue until all debts are paid or all assets exhausted. Creech v. Wilder, 212 N.C. 162, 193 S.E. 281 (1937).

Duty of Clerk to Accept Executor's Annual Account. - Where property is devised or bequeathed by a will, upon certain trusts, and the testator does not appoint a trustee, it is the duty of the executor to carry out the provisions of the will. It was error for the clerk to refuse to accept an annual account tendered by the executor for a year more than two years after the executor qualified but during the life of the trust estate. In re Wachovia Bank & Trust Co., 210 N.C. 385, 186 S.E. 510 (1936). Under G.S. 28A-21-2, the personal representative must now file his final account within one year of his qualification or within six months after his receipt of the State inheritance tax release, whichever is later.

Meaning of "Auditing Accounts". - The provision as to auditing the accounts has reference to the duty of examining the accounts to see that the account of charges corresponds with the inventories, passing upon the vouchers, and striking a balance after allowing commissions. Heilig v. Foard, 64 N.C. 710 (1870).

Jurisdiction for Auditing Accounts Is Ex Parte. - The jurisdiction for auditing accounts conferred upon the clerk by this section is an ex parte jurisdiction of examining the accounts and vouchers of such persons, and does not conclude parties interested or affect suits inter partes upon the same matter. Heilig v. Foard, 64 N.C. 710 (1870); Grant v. Hughes, 94 N.C. 231 (1886); Bean v. Bean, 135 N.C. 92, 47 S.E. 232 (1904).

There is no requirement that a life tenant must account to the court or to a remainderman. Godfrey v. Patrick, 8 N.C. App. 510, 174 S.E.2d 674 (1970).

Account Necessary Before Transferring Funds to Another Jurisdiction. - The administrator in this State of the estate of a nonresident dying in his own state, before transferring the funds to the state of the domicile, must comply with the provisions of this section. Grant v. Rogers, 94 N.C. 755 (1886).

Recorded Account Is Competent Evidence in Collateral Suit. - The account required by this section must be recorded as required in G.S. 2-42 (see now G.S. 7A-109). Such account therefore is not hearsay but is competent evidence in a collateral suit. Braddy v. Pfaff, 210 N.C. 248, 186 S.E. 340 (1936).

Prima Facie Evidence Only. - The sworn account referred to in this section is only prima facie evidence. It is not conclusive as against any person adversely interested. The statute merely shifts the burden of proof. Allen v. Royster, 107 N.C. 278, 12 S.E. 134 (1890); In re Hege, 205 N.C. 625, 172 S.E. 345 (1934); Braddy v. Pfaff, 210 N.C. 248, 186 S.E. 340 (1936).

The representative himself is not estopped to impeach the account. Bean v. Bean, 135 N.C. 92, 47 S.E. 232 (1904).

Cited in Holt v. Lynch, 307 N.C. 234, 297 S.E.2d 594 (1982); Holt v. Lynch, 57 N.C. App. 532, 291 S.E.2d 920 (1982); In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001); In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).


§ 28A-21-2. Final accounts.

  1. 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.
  2. 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 from any State inheritance or State estate tax liability. This subsection only applies to estates of decedents who died before January 1, 2013.
  3. 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 by G.S. 28A-21-1.
  4. 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.

History

(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; 2017-158, s. 10; 2017-212, s. 8.3.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted "or in the time period for filing an annual account pursuant to G.S. 28A-21-1" in the first sentence of subsection (a); and substituted "the personal representative's or collector's final account" for "his final account" in the first sentence of subsection (b).

Session Laws 2017-158, s. 10, effective July 21, 2017, added subsections (a1) and (a2).

Session Laws 2017-212, s. 8.3, effective October 8, 2017, deleted the former last four sentences of subsection (a).

Legal Periodicals. - For survey of 1982 law on taxation, see 61 N.C.L. Rev. 1217 (1983).

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Under this section the clerk of the superior court has jurisdiction. McNeill v. Hodges, 105 N.C. 52, 11 S.E. 265 (1890).

Formerly the probate court had jurisdiction to make the representative account. Rowland v. Thompson, 65 N.C. 110 (1871).

Auditing a Judicial Act. - The phrase "audit an account" means something more than the statement of an account by an unauthorized person. It means the act of a court. Hence the auditing under this section must be performed by the clerk, and not by one of his ministerial officers, for a clerk for his judicial functions can have no deputy. Rowland v. Thompson, 65 N.C. 110 (1871).

Filing of Final Account Does Not Discharge Executor. - Filing of a "final report" by an executor does not have the effect of removing him from office if in fact the estate has not been fully settled, and therefore filing of such a report does not create a vacancy, and does not give the clerk authority to appoint an administrator c.t.a., d.b.n. Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562 (1940).

The removal or discharge of an executor or administrator is not effected by the approval of his final account without a formal order of discharge. Joyner v. Wilson Mem. Hosp., 38 N.C. App. 720, 248 S.E.2d 881 (1978).

Ex Parte Account Presumed Correct. - When ex parte accounts are filed under this section, they are, as a matter of law, to be taken as correct until shown to be erroneous. Turner v. Turner, 104 N.C. 566, 10 S.E. 606 (1889).

Ex Parte Proceeding Works No Estoppel. - The auditing by the clerk, whether under this or under G.S. 28A-21-1, is an ex parte proceeding, and does not work an estoppel upon the parties as a judgment in inter parte proceedings would. In this respect this section and the section just referred to are alike. Bean v. Bean, 135 N.C. 92, 47 S.E. 232 (1904).

Service of Process upon Executrix Prior to Formal Discharge. - Where the executrix had filed her final account but no formal orders of discharge were entered by the clerk of court, the executrix was still empowered to act and service of process upon her was proper in a medical malpractice action. Joyner v. Wilson Mem. Hosp., 38 N.C. App. 720, 248 S.E.2d 881 (1978).

Limitation of Action Against Representative under Former Statute. - See Edwards v. Lemmond, 136 N.C. 329, 48 S.E. 737 (1904).

Review of Order to File Final Account and Turn Over Assets. - Where the clerk orders an executor to file final account and turn over the assets of the trust estate to itself as trustee, which order is made as a matter of law upon the facts found and not as a matter of discretion, the order is reviewable by the superior court upon appeal. In re Wachovia Bank & Trust Co., 210 N.C. 385, 186 S.E. 510 (1936).

Appeal from Audit. - This section, which directs that the probate judge (now the clerk) shall "audit" the account, implies that he shall pursue the usual course which has been found to be just and convenient in such cases. Consequently an appeal may not be had from the decision of the probate judge (now the clerk) upon every question collaterally arising in the course of his investigation, in view of the inconveniences incident to such practice peculiar to the common-law action of account, now superseded by the more expeditious proceedings in equity. Rowland v. Thompson, 64 N.C. 714 (1870).

Cited in Holt v. Lynch, 307 N.C. 234, 297 S.E.2d 594 (1982); Holt v. Lynch, 57 N.C. App. 532, 291 S.E.2d 920 (1982); In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).


§ 28A-21-2.1: Reserved for future codification purposes.

§ 28A-21-2.2. Final accounting by limited personal representative.

  1. Filing Requirement. - A limited personal representative appointed pursuant to Article 29 of this Chapter shall file a sworn affidavit or report listing all debts and other claims duly presented to the limited personal representative and providing proof that the debts and other claims were satisfied, compromised, or denied, and that the time for filing suit thereon has expired. The sworn affidavit or report shall be filed within 30 days of the later of the following:
    1. The date by which a claim must be presented as set forth in the general notice to creditors provided for in G.S. 28A-14-1.
    2. The date by which an action for recovery of a rejected claim must be commenced under G.S. 28A-19-16.
  2. Action by Clerk. - The affidavit or report shall be reviewed and recorded by the clerk of superior court. Following the review, the clerk of superior court shall take one of the following actions:
    1. Discharge the limited personal representative from office.
    2. Require the filing of any additional information or documents determined by the clerk to be necessary to the understanding of the affidavit or report.
    3. Order the full administration of the decedent's estate and appoint a personal representative.

History

(2009-444, s. 2; 2014-115, s. 32.5.)

Editor's Note. - Session Laws 2009-444, s. 4, made this section effective October 1, 2009, and applicable to estates of persons dying on or after that date.

§ 28A-21-3. What accounts must contain.

Accounts filed with the clerk of superior court pursuant to G.S. 28A-21-1, signed and under oath, shall contain:

  1. The period which the account covers and whether it is an annual accounting or a final accounting;
  2. The amount and value of the property of the estate according to the inventory and appraisal or according to the next previous accounting, the amount of income and additional property received during the period being accounted for, and all gains from the sale of any property or otherwise;
  3. All payments, charges, losses, and distributions;
  4. The property on hand constituting the balance of the account, if any; and
  5. Such other facts and information determined by the clerk to be necessary to an understanding of the account.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Cited in In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).


§ 28A-21-3.1: Repealed by Session Laws 2011-326, s. 6, effective June 27, 2011.

History

(2003-295, s. 2; 2011-284, s. 131; repealed by Session Laws 2011-326, s. 6, effective June 27, 2011.)

Editor's Note. - Former G.S. 28A-21-3.1 pertained to Phase II tobacco grower and quota owner payments and list of Phase II distributees.

§ 28A-21-4. Clerk may compel account.

If any personal representative or collector fails to account as directed in G.S. 28A-9-3, 28A-21-1 or 28A-21-2 or renders an unsatisfactory account, the clerk of superior court shall, upon motion of the clerk of superior court or upon the request of one or more creditors of the decedent or other interested party, promptly order such personal representative or collector to render a full satisfactory account within 20 days after service of the order. If, after due service of the order, the personal representative or collector does not on or before the return day of the order file such account, or obtain further time in which to file it, the clerk may remove the personal representative or collector from office or may issue an attachment against the personal representative or collector for a contempt and commit the personal representative or collector until the personal representative or collector files said account.

History

(C.C.P., s. 479; Code, s. 1400; Rev., s. 100; C.S., s. 106; 1933, c. 99; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "motion of the clerk of superior court" for "his own motion" in the first sentence, "the personal representative or collector" for "him" in two places, and "commit the personal representative or collector until the personal representative or collector files" for "commit him until he files" at the end.

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Original Jurisdiction. - Under this section the clerk has original jurisdiction to remove. Edwards v. Cobb, 95 N.C. 4 (1886).

Jurisdiction over Wrongful Death Proceeds. - Although the trial court found that decedent's wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate's personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative's authority to commence and settle these actions is "incident to the collection, preservation, liquidation [and] distribution of a decedent's estate." In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Court which appointed fiduciary may, ex mero motu, compel a proper accounting by attachment for contempt. Lichtenfels v. North Carolina Nat'l Bank, 260 N.C. 146, 132 S.E.2d 360 (1963).

Accounting May Be Compelled by Special Proceedings or Civil Action. - An executor or administrator, as well as a trustee or successor trustee performing duties imposed upon the executors by a testamentary trust, may be compelled to account by special proceedings or civil action, or the court which appointed them may, ex mero motu, compel a proper accounting by attachment for contempt. Lichtenfels v. North Carolina Nat'l Bank, 260 N.C. 146, 132 S.E.2d 360 (1963).

Hearing to Compel Accounting. - Because hearings both to compel accountings and remove personal representative are instituted by notice rather than a formal civil complaint and summons, they are "special proceedings," for which beneficiaries are not required to commence a civil action. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001).

Removal of Personal Representative. - Superior court properly removed a decedent's daughter as administratrix of the decedent's estate for failing to file a final accounting because the appeal was an estate proceeding and, while the court's order indicated that the court dismissed the daughter's case rather than affirming the clerk's order, the court properly reviewed the clerk's order consistent with the "on the record" standard. In re Estate of Harper, - N.C. App. - , 837 S.E.2d 602 (2020).

Cited in In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804 (1985); Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988).


§ 28A-21-5. Vouchers presumptive evidence.

Vouchers, without other proof, are presumptive evidence of disbursement, unless impeached. If lost, the accounting party must, if required, make oath to that fact setting forth the manner of loss, and state the contents and purport of the voucher.

History

(C.C.P., s. 480; Code, s. 1401; Rev., s. 101; C.S., s. 107; 1973, c. 1329, s. 3.)

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

Independent of this section receipts of living persons are not strictly legal evidence to show a full administration. Drake v. Drake, 82 N.C. 443 (1880).

Vouchers Are Presumptive Though Not Primary Evidence. - While this section makes the vouchers presumptive proof, it by no means provides that they shall be primary evidence, and therefore actual payment may still be established in the same way as before the enactment of this section, when the receipts of living persons were not strictly legal evidence to show a full administration. Costen v. McDowell, 107 N.C. 546, 12 S.E. 432 (1890). See Drake v. Drake, 82 N.C. 443 (1880).

What Vouchers Must Show. - This section makes vouchers presumptive evidence of disbursements actually made, but not of their nature and purpose and the necessity for them. To make such vouchers presumptive evidence, they should state with reasonable particularity their purpose, the particular account upon which they were made, the time, etc., so as to make it appear that the expenditure or disbursement was a proper one. McLean v. Breese, 109 N.C. 564, 13 S.E. 910 (1891).

Proof of Handwriting. - The handwriting of the person signing the voucher need be proven only when the voucher is relied on as presumptive evidence under this section. Costen v. McDowell, 107 N.C. 546, 12 S.E. 432 (1890).


§ 28A-21-6. Permissive notice of final accounts.

The personal representative or collector may, but is not required to, give written notice of a proposed final account pursuant to G.S. 1A-1, Rule 4, to all devisees of the estate in the case of testacy, and to all heirs of the estate in the case of intestacy, of the date and place of filing of such account. In giving written notice, the personal representative shall attach a copy of the proposed final accounting with exhibits made a part thereof, but is not required to include copies of vouchers, account statements, or other supporting evidence submitted to the clerk. If the personal representative or collector elects to provide this notice, the personal representative or collector shall file with the clerk of superior court a certificate indicating that this notice has been given to all devisees and heirs. Notwithstanding any right to appeal an order or judgment under G.S. 1-301.3, any payment, distribution, action, or other matter disclosed on such account or any annual account for the estate attached to the written notice must be objected to by a devisee or heir within 30 days after the receipt of the written notice or will be deemed to be accepted by the devisee or heir.

History

(2011-344, s. 4; 2012-18, s. 3.8.)

Effect of Amendments. - Session Laws 2012-18, s. 3.8, effective June 11, 2012, in the last sentence, substituted "attached to the written notice" for "filed by the personal representative or collector."

ARTICLE 22. Distribution.

Sec.

§ 28A-22-1. Scheme of distribution; testate and intestate estates.

After the payment of costs of administration, taxes and other valid claims against the decedent's estate, the personal representative shall distribute the remaining assets of the estate in accordance with the terms of decedent's valid probated will or the provisions of Chapter 29 of the General Statutes or as otherwise lawfully authorized.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Cited in Lee v. Barksdale, 83 N.C. App. 368, 350 S.E.2d 508 (1986).


§ 28A-22-2. Shares of after-born and after-adopted children.

The share of an after-born or after-adopted child, as provided by G.S. 29-9 and 31-5.5, shall be allotted to the after-born or after-adopted child out of any undevised real or personal property, or out of both, if there is enough such undevised property for that purpose. If there is no undevised real or personal property, or if there is not enough, then the whole of the child's share, or the deficiency, shall be made up from the devised real or personal property, or from both. The portion contributed by a devisee shall bear the same ratio to the devisee's devise as the after-born or after-adopted child's share bears to the net estate.

History

(1868-9, c. 113, ss. 108, 109; Code, ss. 1536, 1537; Rev., ss. 138, 139; C.S., ss. 141, 142; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the after-born or after-adopted child" for "him" in the first sentence, and "the devisee's" for "his" near the end.

CASE NOTES

Editor's Note. - The cases below were decided under former Chapter 28 or law prior thereto.

After-Born Child of Intestate Shares in Estate. - This statutory provision clearly assumes and contemplates that an after-born child of an intestate shares in the estate, both real and personal, of such intestate. Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29 (1959).

Child Born to Intestate's Widow More Than 280 Days After His Death. - When it is asserted on behalf of a child born of the woman to whom the intestate was married and with whom he was living at the time of his death that the intestate was her father, the fact that such child was born more than 10 lunar months or 280 days after the intestate's death, standing alone, does not preclude the child as a matter of law from receiving a child's share in the distribution of the intestate's personal estate, absent a statute so providing. Whether such child is the child of intestate is determinable as an issue of fact. Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29 (1959).

If, under all relevant circumstances, a child is born more than 10 lunar months or 280 days after the death of the intestate, the presumption is that the child was not en ventre sa mere when the intestate died. In the absence of evidence to the contrary, this presumption is determinative but this presumption may be rebutted by evidence tending to show that intestate was in fact the father of the child. Thus, when the issue is raised, the burden of proof rests upon such child to establish by the greater weight of the evidence that the intestate was the father. Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29 (1959).

As of What Time Contributions Made. - See Johnson v. Chapman, 54 N.C. 130 (1853).

Child Not en Ventre Sa Mere. - Before a child can be entitled to a distributive share under the statute of distribution, it must appear that he was either in being or en ventre sa mere at the time of the death of the intestate. Thus a half brother of the intestate born 10 and a half months after her death is not entitled to a distributive share, though born before distribution. Grant v. Bustin, 21 N.C. 77 (1835).


§ 28A-22-3. Special proceeding against unknown heirs of decedent before distribution of estate.

If there may be heirs, born or unborn, of the decedent, other than those known to the personal representative and whose names and residences are unknown, before distributing such estate the personal representative is authorized to institute a special proceeding before the clerk of superior court for the purpose of determining who are the heirs of the decedent. All unknown heirs of the decedent shall be made parties thereto and shall be served with summons by publication as provided by G.S. 1A-1, Rule 4. Upon such service being had, the court shall appoint some discreet person to act as guardian ad litem for said unknown heirs and summons shall issue as to such guardian ad litem. Said guardian ad litem shall file answer on behalf of said unknown heirs and the guardian ad litem may be paid for services of the guardian ad litem such sum as the court may fix, to be paid as other costs out of the estate. Upon the filing of the answer by said guardian ad litem all such unknown heirs shall be before the court for the purposes of the proceeding to the same extent as if each had been personally served with summons. Any judgment entered by the court in such proceeding shall be as binding upon said unknown heirs as if they were personally before the court and any payment or distribution made by the personal representative under orders of the court shall have the effect of fully discharging such personal representative and any sureties on the personal representative's official bond to the full extent of such payment or distribution as ordered.

History

(1957, c. 1248; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the guardian ad litem" for "he" and "services of the guardian ad litem" for "his services" near the middle of the section and "personal representative's" for "his" near the end.

CASE NOTES

The purpose of giving notice by publication is not only to alert the individuals named, but also their friends and acquaintances who may see the publication and give them actual notice. Bank of Wadesboro v. Jordan, 252 N.C. 419, 114 S.E.2d 82 (1960), decided under prior law.

Strict Compliance Required. - Service by publication is in derogation of the common law and strict compliance is required. Bank of Wadesboro v. Jordan, 252 N.C. 419, 114 S.E.2d 82 (1960), decided under prior law.

Heirs have a right to be heard before the court decrees they are precluded from sharing in the estate of decedent who dies intestate, and are entitled to such notice of the hearing as the law provides, which may be by proper publication in the event personal service cannot be had. Bank of Wadesboro v. Jordan, 252 N.C. 419, 114 S.E.2d 82 (1960), decided under prior law.

Sufficiency of Notice. - Notice merely to known and unknown heirs is insufficient if more definite identification is available. Bank of Wadesboro v. Jordan, 252 N.C. 419, 114 S.E.2d 82 (1960), decided under prior law.

Cited in Ladd v. Estate of Kellenberger, 64 N.C. App. 471, 307 S.E.2d 850 (1983).


§ 28A-22-4. Distribution to nonresident trustee only upon appointment of process agent.

  1. No assets of the estate of a decedent subject to administration in this State shall be delivered or transferred to a trustee of a testamentary trust or an inter vivos trust who is a nonresident of this State who has not appointed a resident agent for the service of civil process for actions or proceedings arising out of the administration of the trust with regard to such property.
  2. If property is delivered or transferred to a trustee in violation of this section, process may be served outside this State or by publication, as provided by G.S. 1A-1, Rule 4, and the courts of this State shall have the same jurisdiction over the trustee as might have been obtained by service upon a properly appointed process agent. The provisions of this section with regard to jurisdiction shall be in addition to other means of obtaining jurisdiction permissible under the laws of this State.

History

(1967, c. 947; 1973, c. 1329, s. 3.)

§ 28A-22-5. Distribution of assets in kind in satisfaction of devises and transfers in trust.

  1. Subject to the provisions of subsection (b) of this section, whenever under any will or trust indenture the executor, trustee or other fiduciary is required to, or has an option to, satisfy a devise or transfer in trust by a transfer of assets of the estate or trust in kind at the values as finally determined for federal estate tax purposes, the executor, trustee or other fiduciary shall, in the absence of contrary provisions in such will or trust indenture, be required to satisfy such  devise or transfer by the distribution of assets fairly representative of the appreciation or depreciation in the value of all property available for distribution in satisfaction of such devise or transfer.
  2. The provisions of subsection (a) of this section shall not apply unless either:
    1. The decedent's surviving spouse is the beneficiary of the devise or trust transfer described in subsection (a) of this section or of the residue of the estate or trust; or
    2. Any "skip person", as that term is defined in Chapter 13 of the Internal Revenue Code of 1986, as amended, is or may be a current or future beneficiary of the devise or trust transfer described in subsection (a) of this section or of the residue of the estate or trust, and the value of the decedent's gross estate for federal tax purposes exceeds the value of the decedent's unused generation-skipping tax exemption available under Chapter 13 of the Internal Revenue Code of 1986, as amended.

History

(1965, c. 764, s. 1; 1973, c. 1329, s. 3; 1995, c. 235, s. 5; 2011-284, s. 17.)

Effect of Amendments. - Session Laws 2011-284, s. 17, effective June 24, 2011, in the section catchline, substituted "devises" for "bequests"; and throughout subsection (a) and in subdivisions (b)(1) and (b)(2), substituted "devise" for "bequest."

§ 28A-22-6. Agreements with taxing authorities to secure benefit of federal marital deduction.

The executor, trustee, or other fiduciary having discretionary powers under a will or trust indenture with respect to the selection of assets to be distributed in satisfaction of a devise or transfer in trust to or for the benefit of the surviving spouse of a decedent shall be authorized to enter into agreements with the Commissioner of Internal Revenue of the United States of America, and other taxing authorities, requiring the fiduciary to exercise the fiduciary's discretion so that cash and other properties distributed in satisfaction of such devise or transfer in trust will be fairly representative of the net appreciation or depreciation in value on the date, or dates, of distribution of all property then available for distribution in satisfaction of such devise or transfer in trust. Any such fiduciary shall be authorized to enter into any other agreement not in conflict with the express terms of the will or trust indenture that may be necessary or advisable in order to secure for federal estate tax purposes the appropriate marital deduction available under the Internal Revenue Laws of the United States of America and to do and perform all acts incident to such purpose.

History

(1965, c. 744; 1973, c. 1329, s. 3; 2011-284, s. 18.)

Effect of Amendments. - Session Laws 2011-284, s. 18, effective June 24, 2011, substituted "devise" for "bequest" throughout the section.

§ 28A-22-7. Distribution to parent or guardian of a minor.

  1. If a devise of personal property to a person under the age of 18 has a total value of less than five thousand dollars ($5,000), and the devisee is residing in the same household with a parent or a guardian appointed prior to the decedent's death, the personal representative may distribute to the parent or guardian the devise. However, such distribution shall only be made with the prior approval of the clerk of court who issued the letters testamentary or of administration.
  2. If such distribution has been made the parent or guardian shall use the property solely for the education, maintenance and support of the devisee. However, the parent or guardian shall not be required to file an accounting with the clerk of court or to the personal representative, nor shall such distribution be cause for a delay in the filing of the personal representative's final account under the provisions of Article 21 of this Chapter.
  3. Repealed by Session Laws 2014-115, s. 2.3, effective August 11, 2014.
  4. This section may also be applied to several devises of personal property to a single devisee having a combined total value of less than five thousand dollars ($5,000).

History

(1975, c. 813, s. 1; 2011-284, s. 19; 2014-115, s. 2.3; 2018-40, s. 8.1; 2019-243, s. 28(a).)

Editor's Note. - Session Laws 2018-40, s. 8.1, which amended subsections (a) and (d) of this section, is located in Part VIII of Session Laws 2018-40. Section 8.2 of that act provides, "This section becomes effective January 1, 2019." The reference to "This section" in Section 8.2 appears to have been in error and "This Part" was apparently the intended wording. Section 15 of the act provides that except as otherwise provided, the act is effective when it becomes law. Session Laws 2019-243, s. 28(a), effective retroactively to January 1, 2019, amended Session Laws 2018-40, s. 8.2, to read: "This Part becomes effective January 1, 2019, and applies to distributions made on or after that date."

Session Laws 2018-40, s. 14, is a severability clause.

Effect of Amendments. - Session Laws 2011-284, s. 19, effective June 24, 2011, in the first sentence of subsection (a), twice deleted "or legacy" following "devise"; in subsections (a), (b), and (d), deleted "or legatee" following "devisee"; and in subsection (d), deleted "or legacies" following "devises."

Session Laws 2014-115, s. 2.3, effective August 11, 2014, repealed subsection (c), which read "This section establishes a procedure that is separate from the provisions of G.S. 33-69.1 and it is not the intention of this section to repeal in whole or in part the provisions of G.S. 33-69.1."

Session Laws 2018-40, s. 8.1, substituted "five thousand dollars ($5,000)" for "one thousand five hundred dollars ($1,500)" in subsections (a) and (d). For effective date and applicability, see editor's note.

§ 28A-22-8. Executor or trustee; discretion over distributions.

Unless otherwise restricted by the terms of the will or trust, an executor or trustee shall have absolute discretion to make distributions in cash or in specific property, real or personal, or an undivided interest therein or partly in cash or partly in such property, and to do so without regard to the income tax basis for federal tax purposes of specific property allocated to any beneficiary.

History

(1977, c. 740.)

§ 28A-22-9. Distribution to known but unlocated devisees or heirs.

  1. If there are known but unlocated devisees or heirs of property held by the personal representative, the personal representative may deliver the share of such devisee or heir to the clerk of superior court immediately prior to filing of the final account. If the devisee or heir is located after the final account has been filed, the devisee or heir may present a claim for the share to the clerk. If the clerk determines that the claimant is entitled to the share, the clerk shall deliver the share to the devisee or claimant. If the clerk denies the claim, the claimant may take an appeal as in a special proceeding.
  2. The clerk shall hold the share without liability for profit or interest. If no claim has been presented within a period of one year after the filing of the final account, the clerk shall deliver the share to the State Treasurer as abandoned property.
  3. The clerk shall not be required to publish any notice to such devisee or heir and shall not be required to report such share to the State Treasurer. If the devisee or heir is located, the clerk shall inform the devisee or heir that the devisee or heir is entitled to file a claim with the State Treasurer for the share under the provisions of G.S. 116B-67.

History

(1979, 2nd Sess., c. 1311, s. 2; 2002-62, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (a), substituted "the devisee or heir" for "he" in the second sentence, and substituted "the clerk shall deliver" for "he shall deliver" in the third sentence; an substituted "the devisee or heir is entitled" for "he is entitled" in subsection (c).

Legal Periodicals. - For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

§ 28A-22-10. Distribution of assets of inoperative trust.

When the facts at the time of distribution of property to a trust are such that the trust would be inoperative under the terms of the instrument creating the trust for any reason, including the death of a beneficiary, renunciation by a beneficiary, the exercise of a right to withdraw the property by a beneficiary, or the attainment of a stipulated age by a beneficiary, the personal representative or the trustee authorized or required to make the distribution of that property to the trust may distribute the property directly to the person or persons entitled to it under the terms of the instrument creating the trust without the interposition of the establishment of the trust. If only a portion of the trust would be inoperative, the property distributable to that portion of the trust may be distributed directly to the person or persons entitled to the property under the terms of the instrument creating the trust.

History

(2001-413, s. 3.)

§ 28A-22-11. Agreements with heirs.

Any agreement by an heir, unknown or known but unlocated, the primary purpose of which is to locate or recover, or assist in the recovery of, a share in a decedent's estate shall be subject to the provisions of Article 4 of Chapter 116B of the General Statutes.

History

(2009-312, s. 3; 2021-157, s. 2(c).)

Editor's Note. - Session Laws 2009-312, s. 4, made this section effective October 1, 2009, and applicable to agreements entered into on or after that date.

Session Laws 2021-157, s. 2(g), made this section, as amended by Session Laws 2021-157, s. 2(c), effective January 1, 2022, and applicable to agreements entered into on or after that date.

Effect of Amendments. - Session Laws 2021-157, s. 2(c), substituted "Article 4 of Chapter 116B of the General Statutes" for "G.S. 116B-78." For effective date and applicability, see editor's note.


ARTICLE 23. Settlement.

Sec.

§ 28A-23-1. Settlement after final account filed.

When the personal representative or collector has paid or otherwise satisfied or provided for all claims against the estate, has distributed the remainder of the estate pursuant to G.S. 28A-22-1 and has filed the personal representative's or collector's final account for settlement pursuant to G.S. 28A-21-2, if the clerk of superior court, after review of the personal representative's or collector's final account, approves the same, the clerk of superior court shall enter an order discharging the personal representative or collector from further duties and liabilities as personal representative or collector, including those set forth in Article 13 of this Chapter. However, that such an order shall not include a release or discharge of liability for any breach of duty set forth in G.S. 28A-13-10(c).

History

(1973, c. 1329, s. 3; 1977, c. 446, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, substituted "from further duties and liabilities as personal representative or collector, including those set forth in Article 13 of this Chapter" for "from further liability" and made gender neutral changes, and added the last sentence.

CASE NOTES

Applied in In re Watson, 70 N.C. App. 120, 318 S.E.2d 544 (1984).

Cited in In re Estate of Heffner, 61 N.C. App. 646, 301 S.E.2d 720 (1983).


§ 28A-23-2. Payment into court of fund due minor.

When any personal representative or collector holds property due a minor without a guardian and desires to file the personal representative's or collector's petition for settlement, the personal representative or collector may deliver the property to the clerk of superior court who shall invest upon interest or otherwise manage said property for the use of the minor or the clerk may proceed to appoint a guardian for the minor pursuant to the provisions of Chapter 35A of the General Statutes and then may deliver the property of the minor to the guardian.

History

(1868-9, c. 113, s. 97; Code, s. 1526; 1893, c. 317; Rev., s. 151; C.S., s. 153; 1965, c. 815, s. 3; 1973, c. 1329, s. 3; 1987, c. 550, s. 17; 2011-344, s. 4.)

Cross References. - As to the manner of investment of funds in the hands of clerks of court under color of their office, see G.S. 7A-112.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "the personal representative's or collector's" for "his," or similar language.

§ 28A-23-3. Commissions allowed personal representatives; representatives guilty of misconduct or default.

  1. Personal representatives, collectors or public administrators shall be entitled to commissions to be fixed in the discretion of the clerk of superior court not to exceed five percent (5%) upon the amounts of receipts, including the value of all personal property when received, and upon the expenditures made in accordance with law. In determining the maximum commissions allowable under this subsection, the clerk of superior court may take into consideration fees paid by the estate for professional services performed in the ordinary course of administering the estate, including services performed by attorneys and accountants. However, the clerk is not required to reduce the maximum commissions allowed by the aggregate fees paid to professionals on a dollar-for-dollar basis.
  2. In determining the amount of the commissions, both upon personal property received and upon expenditures made, the clerk of superior court shall consider the time, responsibility, trouble and skill involved in the management of the estate. Where real property is sold to pay debts or devises, the commission shall be computed only on the proceeds actually applied in the payment of debts or devises.
  3. The clerk of superior court may allow commissions from time to time during the course of the administration, but the total commissions allowed shall be determined on final settlement of the estate and shall not exceed the limit fixed in this section.
  4. Nothing in this section shall be construed to:
    1. Prevent the clerk of superior court from allowing reasonable sums for necessary charges and disbursements incurred in the management of the estate.
    2. Allow commissions on distribution of the shares of heirs or on distribution of shares of devisees.
    3. Abridge the right of any party interested in the administration of a decedent's estate to appeal an order of the clerk of superior court to a judge of superior court.
  5. No personal representative, collector or public administrator, who has been guilty of default or misconduct in the due execution of the personal representative's, collector's, or public administrator's office resulting in the revocation of the appointment of the personal representative, collector, or public administrator under the provisions of G.S. 28A-9-1, shall be entitled to any commission under the provisions of this section.
  6. For the purpose of computing commissions whenever any portion of the dividends, interest, rents or other amounts payable to a personal representative, collector or public administrator is required by any law of the United States or other governmental unit to be withheld for income tax purposes by the person, corporation, organization or governmental unit paying the same, the amount withheld shall be deemed to have been received and expended.
  7. Subsection (a) of this section does not apply if the testator's will specifies a stipulated amount or method or standard for determining the compensation for the services rendered by the personal representative, including a provision in the will that the compensation of the personal representative is to be determined by applying the personal representative's regularly adopted schedule of compensation in effect at the time of performance of those services. Subsection (a) of this section also shall not apply if the testator's will provides that the personal representative is to receive "reasonable compensation" for those services or similar language to that effect if the personal representative and the beneficiaries whose shares would be charged with the payment of the personal representative's compensation consent in writing to the specific amount that constitutes reasonable compensation.
  8. Subsection (a) of this section shall apply if the testator's will provides that compensation of the personal representative shall be the amount "as provided by law," the "maximum amount provided by law," or other similar language.

The commissions shall be charged as a part of the costs of administration and, upon allowance, may be retained out of the assets of the estate against creditors and all other persons claiming an interest in the estate. If the gross value of an estate is two thousand dollars ($2,000) or less, the clerk of superior court may fix the commission to be received by the personal representative, collector or public administrator in an amount the clerk of superior court, in the clerk's discretion, deems just and adequate.

History

(1868-9, c. 113, s. 95; 1869-70, c. 189; Code, s. 1524; Rev., s. 149; C.S., s. 157; 1941, c. 124; 1953, c. 855; 1959, c. 662; c. 879, s. 8; 1961, cc. 362, 575; 1973, c. 1329, s. 3; 1977, c. 814, s. 2; 2005-388, s. 1; 2011-284, s. 20; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2005-388, s. 1, effective January 1, 2006, and applicable to commissions paid on or after that date, rewrote subsection (a); in subsection (b), substituted "the commissions" for "such commissions" in the first sentence; in subsection (e), deleted "such" preceding "default" and inserted "or her" following "of his" twice and "of the personal representative, collector, or public administrator"; added subsections (g) and (h); and made minor punctuation and stylistic changes.

Session Laws 2011-284, s. 20, effective June 24, 2011, twice substituted "devises" for "legacies" in the last sentence of subsection (b).

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made a stylistic change in subdivision (d)(1); and in subsection (e), substituted "the personal representative's, collector's, or public administrator's office" for "his or her office" and "the appointment" for "his or her appointment."

CASE NOTES

Editor's Note. - Many of the cases below were decided under former Chapter 28 or law prior thereto.

Purpose of Subsection (b). - Subsection (b) of this section ensures that the personal representative's commission on a sale of real estate is limited to the amount that was actually needed for the payment of claims. This discourages personal representatives from selling land merely to increase their commissions. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989).

Authority of Clerks of Court Where Representative Qualifies. - The clerk of the superior court where the personal representative qualifies has authority to fix the amount of fees to which an executor or administrator is entitled. Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963).

Authority to Review Attorneys' Fees Petitions for Reasonableness. - Trial court erred in ruling that the clerk of court lacked the authority to review an executor's attorneys' fees petition for reasonableness; clerks do possess the authority to review attorneys' fees petitions for reasonableness pursuant to their power to allow reasonable sums for necessary charges and disbursements incurred in the management of an estate. In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

Discretion of Clerk. - The allowance of commissions, by way of compensation, to an executor requires the exercise of judicial discretion and judgment by the clerk of the superior court. It is he who has original jurisdiction. If any interested party conceives that the allowance made by him is either inadequate or excessive, or is made under an erroneous conception of the law, he may appeal. But the Supreme Court, upon review of the compensation allowed, cannot perform the function of the clerk, for it has no original jurisdiction in such matters. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151 (1953).

Commissions of an administrator of the estate of a decedent are to be fixed in the discretion of the clerk of superior court subject to the maximum provided by statute. This requires exercise of judicial discretion and judgment by the clerk, who has original jurisdiction in the matter. In re Green, 9 N.C. App. 326, 176 S.E.2d 19 (1970).

The allowance of a commission to an executor is a matter within the original jurisdiction of the clerk of the superior court and it is within his discretion to fix the amount, subject to the maximum provided by statute. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

An executor has no right to fix and determine compensation to be received by him. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

It is necessary for the executor to file a petition for commissions and fees along with the annual accountings to enable the clerk to determine the amount of the commission and attorneys' fees. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Section Controls in Absence of Testamentary Provision. - In the absence of an effective testamentary provision on the subject, the right of the personal representative of a decedent to compensation is controlled by this section. In re Ledbetter, 235 N.C. 642, 70 S.E.2d 667 (1952).

A testator may stipulate in his will the compensation to be paid the person appointed executor with power to settle his estate. When this is done the provisions of the will are binding on all interested parties. But an executor has no right to fix and determine the compensation to be received by him. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151 (1953).

Ordinarily, where the will expressly stipulates the compensation to be allowed an executor, the executor, by qualifying, is deemed to have accepted a bargain and is bound thereby even though the will stipulates compensation in a sum less than the five percent maximum allowed by statute. Wachovia Bank & Trust Co. v. Morgan, 279 N.C. 265, 182 S.E.2d 356 (1971).

Maximum Percentage Set by Will Controls. - Where the will does not fix or purport to fix the compensation to be paid testator's executor as compensation for services in settling his estate, but merely fixes the maximum percentage on receipts and disbursements at two and a half percent, it is the duty of the clerk to make an allowance to the executor subject to the maximum limitation stipulated in the will rather than the maximum fixed by this section. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151 (1953).

The terms "receipts" and "expenditures," as used in this section, refer to the actual receipts and the actual expenditures of the personal representative. An administrator has no lawful claim to commissions on the credits or offsets deducted by a consent judgment from the indebtedness of his testate. This is so for the reason that the deductions were neither actually received nor actually expended by the administrator. In re Ledbetter, 235 N.C. 642, 70 S.E.2d 667 (1952).

Dower as an "Interest in the Estate". - Manifestly, a claim of dower is an "interest" in the estate. Hence the wording of this section lends direct support to a judgment giving priority to commissions due executors, reasonable attorneys' fees and costs. Parsons v. Leak, 204 N.C. 86, 167 S.E. 563 (1933).

Representative Must Discharge Duties. - The representative is not, under this section, entitled to commission at all events. He must have earned them by a just and reasonable discharge of his duties. It must appear that the "receipts and expenditures" referred to have been fairly made in the course of administration. The law will not allow compensation to one who disregards its commands. Grant v. Reese, 94 N.C. 720 (1886).

When Commissions and Charges Should Not Be Allowed. - The compensation is allowed to the representative in order to reward him not only for his time, labor and trouble but also for the responsibility incurred, and the fidelity with which he discharged the duties of his trust. It should not be allowed where due to his neglect the estate has suffered loss. Kelly v. Odum, 139 N.C. 278, 51 S.E. 953 (1905).

Allowance of necessary charges and disbursements, such as counsel fees. See Kelly v. Odum, 139 N.C. 278, 51 S.E. 953 (1905); Johnson v. Marcom, 121 N.C. 83, 28 S.E. 58 (1897).

Commissions are allowed where one person is both administrator and guardian of distributee. Rose v. Bank of Wadesboro, 217 N.C. 600, 9 S.E.2d 2 (1940).

Commission on Both Receipts and Disbursements. - Commissions may be allowed to the representative on both receipts and disbursements, as separate acts. Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 36 S.E. 39 (1900).

Section Does Not Affect Powers of Clerk as to Fees of Commissioners. - This section does not divest the clerk of the superior court of the powers and duties expressly committed to him by the provisions of G.S. 1-408 with respect to the fees of commissioners appointed for the sale of land as provided therein. Welch v. Kearns, 259 N.C. 367, 130 S.E.2d 634 (1963).

Attorney as Executor. - When a lawyer voluntarily becomes executor he assumes the office cum onere, and the exercise by him of his professional skill in the management of the estate does not entitle him to counsel fees, but his compensation is limited to the five percent maximum allowed by this section. Lightner v. Boone, 221 N.C. 78, 19 S.E.2d 144 (1942).

Trustee May Purchase Special Skills. - Where special skills are required, a trustee is entitled to purchase such skills at the expense of the trust estate in order to accomplish the trust purpose. Wachovia Bank & Trust Co. v. Morgan, 279 N.C. 265, 182 S.E.2d 356 (1971).

Where the trust income could best be applied to meet the charitable purposes through the advice of an advisory board assisted by a full-time director, and without such assistance the trust would be lacking in adequate direction the trial court correctly allowed the trustees to employ skilled assistance in the administration of the trust and to charge the reasonable cost for such assistance to trust income. Wachovia Bank & Trust Co. v. Morgan, 279 N.C. 265, 182 S.E.2d 356 (1971).

Necessary Charges, Such as Counsel Fees, Allowed. - Besides commissions, the representative is allowed to retain his expenses for necessary charges and disbursements in the settlement of the estate. Among these necessary charges fees paid to counsel are embraced. Hester v. Hester, 38 N.C. 9 (1843); Love v. Love, 40 N.C. 201 (1848); Fairbairn v. Fisher, 58 N.C. 385 (1860).

A reasonable fee for legal advice and assistance in the management of a trust estate is allowable as a necessary expense of the trust estate. Tripp v. Tripp, 17 N.C. App. 64, 193 S.E.2d 366 (1972).

Payment of Commissions Held Proper. - Commissions to the executor of an estate could be paid on proceeds from the sale of real estate where the executor was required to sell the property under the terms of the will and the property was not sold to pay debts or legacies. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989).

Commission Improperly Calculated. - Since a guardian sold properties specifically to pay the debts and administrative costs of the guardianship estate, an award of commissions to the guardian based upon a percentage of the total proceeds of the sales was improper; G.S. 28A-23-3(b) unambiguously limited the commissions under such circumstances to a percentage of only the amount of proceeds used to pay such costs and debts. In re Estate of Moore, 160 N.C. App. 85, 584 S.E.2d 807 (2003).

Advance Held Improper. - Because the clerk alone has the discretion to fix an executor's compensation and an attorneys' fee, coexecutor's advance to himself of the sum of $32,950.00 from the estate was improper. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Order for Commissions Final Judgment. - An order allowing commissions is a final judgment upon which an appeal may be taken. Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 36 S.E. 39 (1900).

Appeal on Commission under Five Percent. - Notwithstanding the fact that the amount of commissions allowed in a given case has not exceeded five percent on the receipts and disbursements, the allowance is reviewable upon appeal for inadequacy or excessiveness. It cannot strictly be said that the lower court has exclusive discretion within the limit of five percent. Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 36 S.E. 39 (1900).

Cited in Phillips v. Phillips, 296 N.C. 590, 252 S.E.2d 761 (1979); In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001); In re Foreclosure of the Deed of Trust of Vogler Realty, Inc., 365 N.C. 389, 722 S.E.2d 459 (2012).


§ 28A-23-4. Counsel fees allowable to attorneys serving as representatives.

The clerk of superior court, in the discretion of the clerk of superior court, is authorized and empowered to allow counsel fees to an attorney serving as a personal representative, collector or public administrator (in addition to the commissions allowed the attorney as such representative, collector or public administrator) where such attorney in behalf of the estate the attorney represents renders professional services, as an attorney, which are beyond the ordinary routine of administration and of a type which would reasonably justify the retention of legal counsel by any such representative, collector or public administrator not licensed to practice law.

History

(1957, c. 375; 1973, c. 1329, s. 3; 1977, c. 814, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "in the discretion of the clerk of superior court" for "in his discretion" and "the attorney" for "him" or similar language.

Legal Periodicals. - For article on the continuing power of attorney, see 5 Campbell L. Rev. 305 (1983).

CASE NOTES

Authority to Review Attorneys' Fees Petitions for Reasonableness. - Trial court erred in ruling that the clerk of court lacked the authority to review an executor's attorneys' fees petition for reasonableness; clerks do possess the authority to review attorneys' fees petitions for reasonableness pursuant to their power to allow reasonable sums for necessary charges and disbursements incurred in the management of an estate. In re Taylor, 242 N.C. App. 30, 774 S.E.2d 863 (2015).

Fees awarded under this section should be for actual services rendered and should not be based solely upon the size of the estate; nevertheless, the size of the estate provides a useful guideline and may be considered as a factor in determining whether legal services were necessary and the time expended justified. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989).

Attorney Fees Taxed As Costs - In a law firm's suit to recover legal fees due from a decedent's estate, the trial court properly categorized the fees as costs, which were specifically excepted from the interest provisions of G.S. 24-5(b). Moreover, taken together, G.S. 7A-307(c)(2) and G.S. 28A-23-4 clearly supported the concept underpinning the trial court's ruling, which was that the superior court can tax as costs attorney fees incurred when the attorney is the representative of the estate administering its distribution. Nexsen Pruet, PLLC v. Martin, 212 N.C. App. 680, 713 S.E.2d 130 (2011).

Advance Held Improper. - Because the clerk alone has the discretion to fix an executor's compensation and an attorneys' fee, coexecutor's advance to himself of the sum of $32,950.00 from the estate was improper. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

Cited in In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712 (1985); In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, cert. denied, 354 N.C. 69, 553 S.E.2d 201 (2001); In re Estate of Moore, 160 N.C. App. 85, 584 S.E.2d 807 (2003); In re Foreclosure of the Deed of Trust of Vogler Realty, Inc., 365 N.C. 389, 722 S.E.2d 459 (2012).


§ 28A-23-5. Reopening administration.

If, after an estate has been settled and the personal representative discharged, other property of the estate shall be discovered, or if it shall appear that any necessary act remains unperformed on the part of the personal representative, or for any other proper cause, the clerk of superior court, upon the petition of any person interested in the estate and without notice or upon such notice as the clerk of superior court may direct, may order that said estate be reopened. The clerk of superior court may reappoint the personal representative or appoint another personal representative to administer such property or perform such acts as may be deemed necessary. Unless the clerk of superior court shall otherwise order, the provisions of this Chapter as to an original administration shall apply to the proceedings had in the reopened administration; but no claim which is already barred can be asserted in the reopened administration.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, twice substituted "the clerk of superior court may" for "he may," or similar language.

CASE NOTES

Notice. - Whether to provide notice of the reopening of an estate was a matter solely within the discretion of the clerk of court; although no notice to defendant was given, nothing suggested that the lack of notice constituted an abuse of discretion. Simmons v. Waddell, 241 N.C. App. 512, 775 S.E.2d 661 (2015).

"Proper Cause" to Reopen. - The existence of a valid claim against an estate which is not time-barred may, in an appropriate case, constitute "proper cause" to reopen a closed estate in order to assert the claim. However, claims which are already barred may not be asserted in a reopened administration. Thus, without more, a claim which is barred by the statute of limitations may not constitute "proper cause" to reopen administration of a closed estate. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986), cert. denied, 319 N.C. 403, 354 S.E.2d 711 (1987).

Reopening of Estate After Six-Month Period. - The provision in this section prohibiting any claim which is already barred from being asserted in the reopened estate primarily refers to the limitations in G.S. 28A-19-3 on the presentation of claims. Thus, an estate may not ordinarily be reopened for the litigation of claims not brought within the six-month period, even in the absence of a bar by some other statute of limitations. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986), cert. denied, 319 N.C. 403, 354 S.E.2d 711 (1987).

Order Setting Aside Prior Order Reopening Estate Was Proper. - Ultimate fact before the clerk was whether a testator's estate would remain closed, and the clerk's order, which made a specific finding on this ultimate fact by stating that a prior order reopening the subject estate was improvidently and inappropriately entered, that the same should have been and was therefore set aside, and that the estate was to remain closed, complied with the requirements of G.S. 1-301.3(b). In re Estate of Mullins, 182 N.C. App. 667, 643 S.E.2d 599 (2007).

Refusal of Clerk to Reopen Estate Upheld. - In light of the public policy in favor of the expedited administration of estates, as evidenced by the six-month statute of limitations and other provisions of this Chapter, petitioner who alleged that the deceased had promised to devise a life estate to her had a heavy burden of justifying her failure to bring her suit within the six-month period provided for that purpose, or at the very least, within the greater than two-year period that the estate actually remained open. There was no error in the clerk's determination that this burden was not met. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986), cert. denied, 319 N.C. 403, 354 S.E.2d 711 (1987).


ARTICLE 24. 120-Hour Survivorship Requirement; Revised Simultaneous Death Act.

Sec.

§ 28A-24-1. Definitions.

In this Article:

  1. "Co-owners with right of survivorship" includes joint tenants in a joint tenancy with right of survivorship, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.
  2. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with a POD designation, pension, profit sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
  3. "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.

History

(1947, c. 1016, s. 1; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Editor's Note. - Session Laws 2007-132, s. 1, rewrote Article 24 of Chapter 28A. The historical citations to former sections have been retained for research purposes.

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-2. Requirement of survival by 120 hours.

  1. Except as otherwise provided in this Article, where the title to property, the devolution of property, the right to elect an interest in property, or any other right or benefit depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by at least 120 hours is deemed to have predeceased the other individual.
  2. If the language of the governing instrument disposes of property in such a way that two or more beneficiaries are designated to take alternatively by reason of surviving each other and it is not established by clear and convincing evidence that any such beneficiary has survived any other such beneficiary by at least 120 hours, the property shall be divided into as many equal shares as there are alternative beneficiaries, and these shares shall be distributed respectively to each such beneficiary's estate.
  3. If the language of the governing instrument disposes of property in such a way that it is to be distributed to the member or members of a class who survived an individual, each member of the class will be deemed to have survived that individual by at least 120 hours unless it is established by clear and convincing evidence that the individual survived the class member or members by at least 120 hours.

History

(1947, c. 1016, s. 2; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-3. Co-owners with right of survivorship; requirement of survival by 120 hours.

Except as otherwise provided in this Article:

  1. If there are two or more co-owners with right of survivorship and it is not established by clear and convincing evidence that at least one of them survived the other or others by at least 120 hours, then, unless the governing instrument provides otherwise, each co-owner's pro rata interest in the property passes as if that co-owner had survived all other co-owners by at least 120 hours.
  2. If there are two or more co-owners with right of survivorship and it is established by clear and convincing evidence that at least one of them survived the other or others by at least 120 hours, then, unless the governing instrument provides otherwise, the pro rata interest or interests of the deceased owner or owners who are not established by clear and convincing evidence to have survived by at least 120 hours passes to (i) the remaining owner if only one or (ii) if more than one, then to those remaining owners according to the pro rata interest of each.

History

(1947, c. 1016, s. 3; 1973, c. 1329, s. 3; 2007-132, s. 1; 2012-69, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

Session Laws 2012-69, s. 1, effective October 1, 2012, rewrote the section.

§ 28A-24-4. Survival of an event; 120-hour period not applicable.

For purposes of a governing instrument that requires survival of an event, other than the death of another individual, the 120-hour survivorship requirement of this Article does not apply.

History

(1947, c. 1016, s. 4; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-5. Victim deemed to survive slayer.

Notwithstanding any other provisions of this Article, solely for the purpose of determining whether the victim is entitled to any right or benefit that depends on surviving the death of a slayer under G.S. 31A-3, the slayer is deemed to have predeceased the victim and the victim is deemed to have survived the slayer by at least 120 hours (or any greater survival period required of the victim under the slayer's will or other governing instrument) unless it is established by clear and convincing evidence that the slayer survived the victim by at least 120 hours.

History

(1947, c. 1016, s. 6; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-6. Exceptions to the 120-hour survival requirement.

Survival by 120 hours is not required if any of the following apply:

  1. The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and the language is operable under the facts of the case.
  2. The governing instrument expressly indicates that an individual is not required to survive the death of another individual by any specified period or expressly requires the individual to survive another individual for a specified period; but survival must be established by clear and convincing evidence.
  3. The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under G.S. 41-15; but survival must be established by clear and convincing evidence.
  4. The application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival must be established by clear and convincing evidence.
  5. The application of a 120-hour requirement of survival would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or testator or other person (or their estate) as the transferor of any property. "Tax" includes any federal or State gift, estate or inheritance tax.
  6. The application of a 120-hour requirement of survival would result in an escheat.

History

(1947, c. 1016, s. 7; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-7. Evidence of death or status.

For purposes of this Article, the following rules of evidence apply relating to the determination of death and status of a beneficiary subject to a requirement of survivorship and of the person the beneficiary must survive:

  1. Death occurs when an individual is determined to be dead pursuant to G.S. 90-323 or Chapter 28C of the General Statutes.
  2. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency in the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent. In the absence of evidence disputing the death certificate, that certificate shall be conclusive evidence of the fact, place, date, and time of death and the identity of the decedent.
  3. A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report. The record or report is conclusive evidence of the status and of the dates, circumstances, and places disclosed by the record or report unless there is evidence to the contrary.
  4. In the absence of prima facie evidence of death under subdivision (2) or (3) of this section, the fact of death may be established by clear and convincing evidence, including circumstantial evidence.

History

(1947, c. 1016, s. 8; 1973, c. 1329, s. 3; 2007-132, s. 1.)

Effect of Amendments. - Session Laws 2007-132, s. 1, effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, rewrote this Article.

§ 28A-24-8. Protection of payors, bona fide purchasers, and other third parties; personal liability of recipient.

  1. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a person designated in a governing instrument who, under this Article, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the person's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this Article. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this Article.
  2. A person who purchases property for value and without notice, or who received a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this Article to return the payment, item of property, or benefit, nor liable under this Article for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this Article is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this Article.

Written notice of a claimed lack of entitlement under this Article must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this Article, a payor or other third party may pay any amount owed or transfer or deposit any item of property other than tangible personal property held by it to or with the clerk of the superior court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the clerk of the superior court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The clerk shall hold the funds or item of property and, upon the clerk's determination under this Article, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the clerk discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the clerk.

History

(2007-132, s. 1.)

Editor's Note. - Session Laws 2007-132, s. 5, made this section effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date.

Legal Periodicals. - For article, "The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina," see 87 N.C.L. Rev. 1869 (2009).

ARTICLE 25. Small Estates.

Sec.

§ 28A-25-1. Collection of property by affidavit when decedent dies intestate.

  1. When a decedent dies intestate leaving personal property, less liens and encumbrances thereon, not exceeding twenty thousand dollars ($20,000) in value, at any time after 30 days from the date of death, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the public administrator appointed pursuant to G.S. 28A-12-1, or an heir or creditor of the decedent, not disqualified under G.S. 28A-4-2, upon being presented a certified copy of an affidavit filed in accordance with subsection (b) and made by or on behalf of the heir or creditor or the public administrator stating:
    1. The name and address of the affiant and the fact that the affiant is the public administrator or an heir or creditor of the decedent;
    2. The name of the decedent and the decedent's residence at time of death;
    3. The date and place of death of the decedent;
    4. That 30 days have elapsed since the death of the decedent;
    5. That the value of all the personal property owned by the estate of the decedent, less liens and encumbrances thereon, does not exceed twenty thousand dollars ($20,000);
    6. That no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction;
    7. The names and addresses of those persons who are entitled, under the provisions of the Intestate Succession Act, to the personal property of the decedent and their relationship, if any, to the decedent; and
    8. A description sufficient to identify each tract of real property owned by the decedent at the time of the decedent's death.
  2. Prior to the recovery of any assets of the decedent, a copy of the affidavit described in subsection (a) shall be filed in the office of the clerk of superior court of the county where the decedent was domiciled at the time of death. The affidavit shall be filed by the clerk upon payment of the fee provided in G.S. 7A-307, shall be indexed in the index to estates, and a copy thereof shall be mailed by the clerk to the persons shown in the affidavit as entitled to the personal property.
  3. The presentation of an affidavit as provided in subsection (a) shall be sufficient to require the transfer to the affiant or the affiant's designee of the title and license to a motor vehicle registered in the name of the decedent owner; the ownership rights of a savings account or checking account in a bank in the name of the decedent owner; the ownership rights of a savings account or share certificate in a credit union, building and loan association, or savings and loan association in the name of the decedent owner; the ownership rights in any stock or security registered on the books of a corporation in the name of a decedent owner; or any other property or contract right owned by decedent at the time of the decedent's death.
  4. The public administrator or an heir that has presented an affidavit as provided in subsection (a) of this section shall be entitled to remove or otherwise dispose of the decedent's personal property located in the demised premises.

In those cases in which the affiant is the surviving spouse and sole heir of the decedent, not disqualified under G.S. 28A-4-2, the property described in this subsection that may be collected pursuant to this section may exceed twenty thousand dollars ($20,000) in value but shall not exceed thirty thousand dollars ($30,000) in value, after reduction for any spousal allowance paid to the surviving spouse pursuant to G.S. 30-15. In such cases, the affidavit shall state: (i) the name and address of the affiant and the fact that the affiant is the surviving spouse and is entitled, under the provisions of the Intestate Succession Act, to all of the property of the decedent; (ii) that the value of all of the personal property owned by the estate of the decedent, less liens and encumbrances thereon, does not exceed thirty thousand dollars ($30,000); and (iii) the information required under subdivisions (2), (3), (4), (6), and (8) of this subsection.

History

(1973, c. 1329, s. 3; 1975, c. 300, s. 9; 1983, c. 65, s. 1; c. 713, s. 21; 1985, c. 651, s. 1; 1989, c. 407, s. 1; 1995, c. 262, s. 1; 2009-175, s. 1; 2011-344, s. 4; 2021-71, s. 2.3.)

Editor's Note. - Session Laws 2021-71, s. 2.6, made subsection (d) of this section, as added by Session Laws 2021-71, s. 2.3, effective July 2, 2021, and applicable to decedents dying on or after that date.

Effect of Amendments. - Session Laws 2009-175, s. 1, effective October 1, 2009, and applicable to estates of persons dying on or after that date, substituted "twenty thousand dollars ($20,000)" and "thirty thousand dollars ($30,000)" for "ten thousand dollars ($10,000)" and "twenty thousand dollars ($20,000)", respectively, throughout subsection (a).

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the last paragraph in subsection (a), added "after reduction for any spousal allowance paid to the surviving spouse pursuant to G.S. 30-15" in the first sentence; in subsection (b), substituted "the decedent was domiciled at the time of death" for "decedent had his domicile at the time of his death" in the first sentence; and made gender neutral changes throughout the section.

Session Laws 2021-71, s. 2.3, added subsection (d). For effective date and applicability, see editor's note.

CASE NOTES

Action Properly Dismissed Against Defendants Who Were Merely Collectors by Affidavit. - Where plaintiff was required by this statute to bring his action against the collector or personal representative, his action was properly dismissed when he filed his action against defendants who were merely collectors by affidavit under this section, since plaintiff failed to bring his action against the proper party or parties. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Cited in Little v. Bennington, 109 N.C. App. 482, 427 S.E.2d 887.


§ 28A-25-1.1. Collection of property by affidavit when decedent dies testate.

  1. When a decedent dies testate leaving personal property, less liens and encumbrances thereon, not exceeding twenty thousand dollars ($20,000) in value, at any time after 30 days from the date of death, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the public administrator appointed pursuant to G.S. 28A-12-1, a person named or designated as executor in the will, devisee, heir or creditor, of the decedent, not disqualified under G.S. 28A-4-2, upon being presented a certified copy of an affidavit filed in accordance with subsection (b) and made by or on behalf of the heir, the person named or designated as executor in the will of the decedent, the creditor, the public administrator, or the devisee, stating:
    1. The name and address of the affiant and the fact that the affiant is the public administrator, a person named or designated as executor in the will, devisee, heir or creditor, of the decedent;
    2. The name of the decedent and the decedent's residence at time of death;
    3. The date and place of death of the decedent;
    4. That 30 days have elapsed since the death of the decedent;
    5. That the decedent died testate leaving personal property, less liens and encumbrances thereon, not exceeding twenty thousand dollars ($20,000) in value;
    6. That the decedent's will has been admitted to probate in the court of the proper county and a duly certified copy of the will has been recorded in each county in which is located any real property owned by the decedent at the time of the decedent's death;
    7. That a certified copy of the decedent's will is attached to the affidavit;
    8. That no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction;
    9. The names and addresses of those persons who are entitled, under the provisions of the will, or if applicable, of the Intestate Succession Act, to the property of the decedent; and their relationship, if any, to the decedent; and
    10. A description sufficient to identify each tract of real property owned by the decedent at the time of the decedent's death.
  2. Prior to the recovery of any assets of the decedent, a copy of the affidavit described in subsection (a) shall be filed in the office of the clerk of superior court of the county where the decedent was domiciled at the time of death. The affidavit shall be filed by the clerk upon payment of the fee provided in G.S. 7A-307, shall be indexed in the index to estates, and a copy shall be mailed by the clerk to the persons shown in the affidavit as entitled to the property.
  3. The presentation of an affidavit as provided in subsection (a) shall be sufficient to require the transfer to the affiant or the affiant's designee of the title and license to a motor vehicle registered in the name of the decedent owner; the ownership rights of a savings account or checking account in a bank in the name of the decedent owner; the ownership rights of a savings account or share certificate in a credit union, building and loan association, or savings and loan association in the name of the decedent owner; the ownership rights in any stock or security registered on the books of a corporation in the name of a decedent owner; or any other property or contract right owned by decedent at the time of the decedent's death.
  4. The public administrator, person named or designated as executor in the will, devisee, or heir that has presented an affidavit as provided in subsection (a) of this section shall be entitled to remove or otherwise dispose of the decedent's personal property located in the demised premises.

In those cases in which the affiant is the surviving spouse, is entitled to all of the property of the decedent, and is not disqualified under G.S. 28A-4-2, the property described in this subsection that may be collected pursuant to this section may exceed twenty thousand dollars ($20,000) in value but shall not exceed thirty thousand dollars ($30,000) in value, after reduction for any spousal allowance paid to the surviving spouse pursuant to G.S. 30-15. In such cases, the affidavit shall state: (i) the name and address of the affiant and the fact that the affiant is the surviving spouse and is entitled, under the provisions of the decedent's will, or if applicable, of the Intestate Succession Act, to all of the property of the decedent; (ii) that the decedent died testate leaving personal property, less liens and encumbrances thereon, not exceeding thirty thousand dollars ($30,000); and (iii) the information required under subdivisions (2), (3), (4), (6), (7), (8), and (10) of this subsection.

History

(1985, c. 651, s. 2; 1987, c. 670, s. 1; 1989, c. 407, s. 2; 1995, c. 262, s. 2; 2009-175, s. 2; 2011-344, s. 4; 2012-18, s. 3.9; 2021-71, s. 2.4.)

Editor's Note. - Session Laws 2021-71, s. 2.6, made subsection (d) of this section, as added by Session Laws 2021-71, s. 2.4, effective July 2, 2021, and applicable to decedents dying on or after that date.

Effect of Amendments. - Session Laws 2009-175, s. 2, effective October 1, 2009, and applicable to estates of persons dying on or after that date, substituted "twenty thousand dollars ($20,000)" and "thirty thousand dollars ($30,000)" for "ten thousand dollars ($10,000)" and "twenty thousand dollars ($20,000)", respectively, throughout subsection (a).

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made gender neutral changes throughout the section; and in subsection (b), substituted "decedent was domiciled at the time of death" for "decedent had his domicile at the time of his death" in the first sentence.

Session Laws 2012-18, s. 3.9, effective June 11, 2012, at the end of the first sentence in the undesignated language at the end of subsection (a), added "after reduction for any spousal allowance paid to the surviving spouse pursuant to G.S. 30-15."

Session Laws 2021-71, s. 2.4, added subsection (d). For effective date and applicability, see editor's note.

§ 28A-25-2. Effect of affidavit.

The person paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to an affidavit meeting the requirements of G.S. 28A-25-1(a) or G.S. 28A-25-1.1(a) is discharged and released to the same extent as if the person dealt with a duly qualified personal representative of the decedent. A lessor or lessor's agent of the demised premises that, at the direction of an affiant authorized pursuant to G.S. 28A-25-1(d) or G.S. 28A-25-1.1(d), removes, throws away, or otherwise disposes of the personal property located in demised premises is discharged and released to the same extent as if the lessor dealt with a duly qualified personal representative of the decedent. The person or lessor is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in an action brought for that purpose by or on behalf of the persons entitled thereto. The court costs and attorney's fee incident to the action shall be taxed against the person whose refusal to comply with the provisions of G.S. 28A-25-1(a) or G.S. 28A-25-1.1(a) made the action necessary. The heir or creditor to whom payment, delivery, transfer or issuance is made is answerable and accountable therefor to any duly qualified personal representative or collector of the decedent's estate or to any other person having an interest in the estate.

History

(1973, c. 1329, s. 3; 1985, c. 651, s. 3; 1987, c. 670, s. 2; 2011-344, s. 4; 2021-71, s. 2.5.)

Editor's Note. - Session Laws 2021-71, s. 2.6, made the second sentence and the insertion of "or lessor" near the beginning of the third sentence, as added by Session Laws 2021-71, s. 2.5, effective July 2, 2021, and applicable to decedents dying on or after that date.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first and second sentences, substituted "the person" for "he," or similar language.

Session Laws 2021-71, s. 2.5, added the second sentence, and inserted "or lessor" near the beginning of the third sentence. For effective date and applicability, see editor's note.

§ 28A-25-3. Disbursement and distribution of property collected by affidavit.

  1. If there has been no personal representative or collector appointed by the clerk of superior court, the affiant who has collected personal property of the decedent by affidavit pursuant to G.S. 28A-25-1 or G.S. 28A-25-1.1 shall:
    1. Disburse and distribute the same in the following order:
      1. To the payment of the surviving spouse's year's allowance and the children's year's allowance assigned in accordance with G.S. 30-15 through G.S. 30-33;
      2. To the payment of the debts and claims against the estate of the decedent in the order of priority set forth in G.S. 28A-19-6, or to the reimbursement of any person who has already made payment thereof;
      3. To the distribution of the remainder of the personal property to the persons entitled thereto under the provisions of the will or of the Intestate Succession Act; and
    2. File an affidavit with the clerk of superior court that the affiant has collected the personal property of the decedent and the manner in which the affiant has disbursed and distributed the same. This final affidavit shall be filed within 90 days of the date of filing of the qualifying affidavit provided for in G.S. 28A-25-1 or G.S. 28A-25-1.1. If the affiant cannot file the final affidavit within 90 days, the affiant shall file a report with the clerk within that time period stating the affiant's reasons. Upon determining that the affiant has good reason not to file the final affidavit within 90 days, the clerk may extend the time for filing up to one year from the date of filing the qualifying affidavit.
  2. Nothing in this section shall be construed as changing the rule of G.S. 28A-15-1 and G.S. 28A-15-5 rendering both real and personal property, without preference or priority, available for the discharge of debts and other claims against the estate of the decedent. If it appears that it may be in the best interest of the estate to sell, lease, or mortgage any real property to obtain money for the payment of debts or other claims against the decedent's estate, the affiant shall petition the clerk of superior court for the appointment of a personal representative to conclude the administration of the decedent's estate pursuant to G.S. 28A-25-5.

History

(1973, c. 1329, s. 3; 1983, c. 711, s. 1; 1985, c. 651, s. 4; 1987, c. 670, s. 3; 1989, c. 407, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subdivision (a)(2), substituted "the affiant" for "he," or similar language.

CASE NOTES

Action Properly Dismissed Against Defendants Who Were Merely Collectors by Affidavit. - Where plaintiff was required by this statute to bring his action against the collector or personal representative, his action was properly dismissed when he filed his action against defendants who were merely collectors by affidavit under G.S. 28A-25-1, since plaintiff failed to bring his action against the proper party or parties. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Cited in Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).


§ 28A-25-4. Clerk may compel compliance.

If any affiant who has collected personal property of the decedent by affidavit pursuant to G.S. 28A-25-1 or G.S. 28A-25-1.1 shall fail to make distribution or file affidavit as required by G.S. 28A-25-3, the clerk of superior court may, upon motion of the clerk of superior court or at the request of any interested person, issue an attachment against the affiant for a contempt and commit the affiant until the affiant makes proper distribution and files the affidavit. In addition to or in lieu of filing this attachment, the clerk may require the affiant to post a bond conditioned as provided in G.S. 28A-8-2.

History

(1973, c. 1329, s. 3; 1983, c. 711, s. 2; 1985, c. 651, s. 5; 1987, c. 670, s. 4; 1989, c. 407, s. 4; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "upon motion of the clerk of superior court" for "upon his own motion" and "the affiant" for "him" or similar language.

CASE NOTES

Challenging Order Under This Section. - Order of contempt and commitment entered against plaintiff-executor for failure to file account on estate and to appear and show cause was a valid court order pursuant to this section. In contesting this court order, plaintiff's proper course of action would have been to appeal the order itself. Instead, plaintiff attacked the order by seeking declaratory relief and the expunction of his records in a wholly separate action. The trial court had no authority to grant plaintiff the relief sought in that it had no power collaterally to vacate the order of contempt and commitment. Therefore, the trial court's dismissal of plaintiff's claim under Rules 12(b)(1) and (6) was proper. Little v. Bennington, 109 N.C. App. 482, 427 S.E.2d 887, pet. disc. review denied, 334 N.C. 164, 432 S.E.2d 362 (1993).


§ 28A-25-5. Subsequently appointed personal representative or collector.

Nothing in this Article shall preclude any interested person, including the affiant, from petitioning the clerk of superior court for the appointment of a personal representative or collector to conclude the administration of the decedent's estate. If such is done, the affiant who has been collecting personal property by affidavit shall cease to do so, shall deliver all assets in the affiant's possession to the personal representative, and shall render a proper accounting to the personal representative or collector. A copy of the accounting shall also be filed with the clerk having jurisdiction over the personal representative or collector.

History

(1973, c. 1329, s. 3; 1975, c. 300, s. 10; 1985, c. 651, s. 6; 1987, c. 670, s. 5; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the affiant's" for "his" in the second sentence.

§ 28A-25-6. Payment to clerk of money owed decedent.

  1. As an alternative to the small estate settlement procedures of this Article, any person indebted to a decedent may satisfy such indebtedness by paying the amount of the debt to the clerk of the superior court of the county of the domicile of the decedent:
    1. If no administrator has been appointed, and
    2. If the amount owed by such person does not exceed five thousand dollars ($5,000), and
    3. If the sum tendered to the clerk would not make the aggregate sum which has come into the clerk's hands belonging to the decedent exceed five thousand dollars ($5,000).
  2. Such payments may not be made to the clerk if the total amount paid or tendered with respect to any one decedent would exceed five thousand dollars ($5,000), even though disbursements have been made so that the aggregate amount in the clerk's hands at any one time would not exceed five thousand dollars ($5,000).
  3. If the sum tendered pursuant to this section would make the aggregate sum coming into the clerk's hands with respect to any one decedent exceed five thousand dollars ($5,000) the clerk shall appoint an administrator, or the sum may be administered under the preceding sections of this Article.
  4. If it appears to the clerk after making a preliminary survey that disbursements pursuant to this section would not exhaust funds received pursuant to this section, the clerk may, in the clerk's discretion, appoint an administrator, or the funds may be administered under the preceding sections of this Article.
  5. The receipt from the clerk of the superior court of a payment purporting to be made pursuant to this section is a full release to the debtor for the payment so made.
  6. If no administrator has been appointed, the clerk of superior court shall, upon motion of the clerk or upon the application of an interested party, disburse the money received under this section for the following purposes and in the following order:
    1. To pay the surviving spouse's year's allowance and children's year's allowance assigned in accordance with law.
    2. , (3) Repealed by Session Laws 1981, c. 383, s. 3.
  7. The clerk shall not be required to publish notice to creditors.
  8. Whenever an administrator is appointed after a clerk of superior court has received any money pursuant to this section, the clerk shall pay to the administrator all funds which have not been disbursed. The clerk shall receive no commissions for payments made to the administrator, and the administrator shall receive no commissions for receiving such payments.

(4) All other claims shall be disbursed according to the order set out in G.S. 28A-19-6.

Notwithstanding the foregoing provisions of this subsection, the clerk shall pay, out of funds provided the deceased pursuant to G.S. 111-18 and Part 3 of Article 2 of Chapter 108A of the General Statutes of North Carolina, any lawful claims for care provided by an adult care home to the deceased, incurred not more than 90 days prior to the deceased's death. After the death of a spouse who died intestate and after the disbursements have been made in accordance with this subsection, the balance in the clerk's hands belonging to the estate of the decedent shall be paid to the surviving spouse, and if there is no surviving spouse, the clerk shall pay it to the heirs in proportion to their respective interests.

History

(1921, c. 93; Ex. Sess. 1921, c. 65; C.S., s. 65(a); Ex. Sess. 1924, cc. 15, 58; 1927, c. 7; 1929, cc. 63, 71, 121; 1931, c. 21; 1933, cc. 16, 94; 1935, cc. 69, 96, 367; 1937, cc. 13, 31, 55, 121, 336, 377; 1939, cc. 383, 384; 1941, c. 176; 1943, cc. 24, 114, 138, 560; 1945, cc. 152, 178, 555; 1947, cc. 203, 237; 1949, cc. 17, 81, 691, 762; 1951, c. 380, s. 1; 1955, c. 1246, s. 103; 1957, c. 491; 1959, c. 795, ss. 1-4; 1965, c. 576, s. 1; 1973, c. 23; c. 1329, s. 1; 1975, c. 344; 1979, c. 163; c. 762, s. 1; 1981, c. 383, s. 3; 1983, c. 65, s. 2; 1987, c. 282, s. 6; 1989 (Reg. Sess., 1990), c. 1015, s. 1; 1995, c. 535, s. 2; 2011-344, s. 4; 2019-243, s. 15.)

Cross References. - As to order of payment of debts, see G.S. 28A-19-6.

As to intestate succession generally, see G.S. 29-1 et seq.

Editor's Note. - This section combines former G.S. 28-68, 28-68.1, 28-68.2 and 28-68.3. The provisions of the former sections were rewritten, combined and transferred to their present position by Session Laws 1975, c. 344.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (d), substituted "the clerk may" for "he may" and "the clerk's discretion" for "his discretion"; and in the last paragraph of subsection (f), substituted "the deceased's death" for "his death."

Session Laws 2019-243, s. 15, effective November 6, 2019, in subsection (f), inserted "upon motion of the clerk or upon the application of an interested party" in the introductory language, and made stylistic changes.

CASE NOTES

This section provides the debtor a permissive right, and is in no wise mandatory upon him; such right as is given is alternative and not exclusive. In re Franks, 220 N.C. 176, 16 S.E.2d 831 (1941), decided under prior law.

Effect on Jurisdiction to Appoint Administrator. - This section does not have the effect of fixing the sum of $300 (now $5,000) as bona notabilia in determining jurisdiction of the clerk of the superior court to appoint an administrator for a person not domiciled in this State who dies leaving assets herein. In re Franks, 220 N.C. 176, 16 S.E.2d 831 (1941), decided under prior law.

Section Not Applicable to Surplus Realized on Foreclosure Sale. - The limitation of the amount payable to the clerk under this section is not applicable to the surplus realized upon the foreclosure of a mortgage or deed of trust. Lenoir County v. Outlaw, 241 N.C. 97, 84 S.E.2d 330 (1954), rehearing denied, 241 N.C. 97, 85 S.E.2d 608 (1955), decided under prior law.

Release of Indebtedness. - Because the second plaintiff's estate received and accepted without protest precisely what it was due pursuant to the electric cooperative's bylaws, the electric cooperative's payment of that amount to the clerk constituted a release of indebtedness. Lockerman v. South River Elec. Mbrshp. Corp., 250 N.C. App. 631, 794 S.E.2d 346 (2016).


§ 28A-25-7. Removal of tangible personal property by landlord after death of residential tenant.

  1. When a decedent who is the sole occupant of a dwelling unit dies leaving tangible personal property in the dwelling unit, the landlord may take possession of the property upon the filing of an affidavit that complies with the provisions of subsection (b) of this section if all of the following conditions have been met:
    1. At least 10 days has elapsed from the date the paid rental period for the dwelling unit has expired.
    2. No personal representative, collector, or receiver has been appointed for the decedent's estate under the provisions of this Chapter, Chapter 28B, or Chapter 28C of the General Statutes in the county in which the dwelling unit is located.
    3. No affidavit related to the decedent's estate has been filed under the provisions of G.S. 28A-25-1 or G.S. 28A-25-1.1 in the county in which the dwelling unit is located.
  2. The affidavit required by subsection (a) of this section shall be on a form approved by the Administrative Office of the Courts and supplied by the clerk of court. The affidavit shall state all of the following:
    1. The name and address of the affiant and the fact that the affiant is the lessor of the dwelling unit.
    2. The name of the decedent and the fact that the decedent was the lessee and sole occupant of the dwelling unit and died leaving tangible personal property in the dwelling unit. The affiant shall attach to the affidavit a copy of the decedent's death certificate.
    3. The address of the dwelling unit.
    4. The date of the decedent's death.
    5. The date the paid rental period expired and the fact that at least 10 days has elapsed since that date.
    6. The affiant's good faith estimate of the value of the tangible personal property remaining in the dwelling unit. The affiant shall attach to the affidavit an inventory of the property which shall include, at a minimum, the categories of furniture, clothing and accessories, and miscellaneous items.
    7. That no personal representative, collector, or receiver has been appointed for the decedent's estate under the provisions of this Chapter, Chapter 28B, or Chapter 28C of the General Statutes in the county in which the dwelling unit is located and that no affidavit has been filed in the county under the provisions of G.S. 28A-25-1 or G.S. 28A-25-1.1.
    8. The name of the person identified in the rental application, lease agreement, or other landlord document as the authorized person to contact in the event of the death or emergency of the tenant; that the affiant has made a good faith attempt to contact that person to urge that action be taken to administer the decedent's estate; and that either the affiant was unsuccessful in contacting the person or, if contacted, the person has not taken action to administer the decedent's estate. The affiant shall state the efforts made to contact the person identified in the rental application, lease agreement, or other landlord document.
  3. The affidavit shall be filed in the office of the clerk of court in the county in which the dwelling unit is located. The affidavit shall be filed by the clerk upon the landlord's payment of the fee of thirty dollars ($30.00) and shall be indexed in the index to estates. The landlord shall mail a copy of the affidavit to the person identified in the rental application, lease agreement, or other landlord document as the authorized person to contact in the event of the death or emergency of the tenant. If no contact person is identified in the rental application, lease agreement, or other landlord document, the landlord shall cause notice of the filing of the affidavit to be posted at the door of the landlord's primary rental office or the place where the landlord conducts business and at the county courthouse in the area designated by the clerk for the posting of notices.
  4. The filing of an affidavit that complies with the provisions of subsection (b) of this section shall be sufficient to require the transfer of the property remaining in the decedent's dwelling unit to the landlord. Upon the transfer, the landlord may remove the property from the dwelling unit and deliver it for storage to any storage warehouse in the county in which the dwelling unit is located or in an adjoining county if no storage warehouse is located in that county. The landlord may also store the property in the landlord's own storage facility. Notwithstanding any provision of Chapter 42 of the General Statutes, after removing the property from the dwelling unit as provided in this subsection, the landlord shall be in possession of the dwelling unit and may let the unit as the landlord deems fit.
  5. If, at least 90 days after the landlord filed the affidavit required by subsection (a) of this section, no personal representative, collector, or receiver has been appointed under the provisions of this Chapter, Chapter 28B, or Chapter 28C of the General Statutes in the county in which the dwelling unit is located and no affidavit has been filed in the county under the provisions of G.S. 28A-25-1 or G.S. 28A-25-1.1, the landlord may take any of the following actions related to the decedent's property:
    1. Sell the property as provided in subsection (f) of this section.
    2. Deliver the property into the custody of a nonprofit organization regularly providing free, or at a nominal price, clothing and household furnishings to people in need for disposition in the normal course of the organization's operations. The organization shall not be liable to anyone for the disposition of the property.
  6. If the landlord delivers the property to a nonprofit organization as authorized in subdivision (2) of subsection (e) of this section, the landlord shall provide an accounting to the clerk stating the nature of the action and the date on which the action was taken. A landlord who elects to sell the property as authorized in subdivision (1) of subsection (e) of this section may do so at a public or private sale. Whether the sale is public or private, the landlord shall, at least seven days prior to the day of sale, give written notice to the clerk and post written notice of the sale in the area designated by the clerk for the posting of notices and at the door of the landlord's primary rental office or the place where the landlord conducts business stating the date, time, and place of the sale, and that any surplus of proceeds from the sale, after payment of unpaid rents, damages, packing and storage fees, filing fees, and sale costs shall be delivered to the clerk. The landlord may apply the proceeds of the sale to the unpaid rents, damages, packing and storage fees, filing fees, and sale costs. Any surplus from the sale shall be paid to the clerk, and the landlord shall provide an accounting to the clerk showing the manner in which the proceeds of the sale were applied. The clerk shall administer the funds in the same manner as provided in G.S. 28A-25-6.
  7. If, at any time after the landlord files the affidavit required by subsection (a) of this section but before the landlord takes any of the actions authorized in subsection (e) of this section, the landlord is presented with letters of appointment or another document issued by a court indicating that a personal representative, collector, or receiver has been appointed for the decedent's estate or an affidavit filed under the provisions of G.S. 28A-25-1 or G.S. 28A-25-1.1, the landlord shall deliver the decedent's property to the personal representative, collector, or receiver appointed or to the person who filed the affidavit.
  8. Notwithstanding the provisions of subsections (a) through (g) of this section, if the decedent dies leaving tangible personal property of five hundred dollar ($500.00) value or less in the dwelling unit, the landlord may, without filing an affidavit, deliver the property into the custody of a nonprofit organization regularly providing free, or at a nominal price, clothing and household furnishings to people in need upon that organization agreeing to identify and separately store the property for 30 days and to release the property to a person authorized by law to act on behalf of the decedent at no charge within the 30-day period. Prior to delivering the property to the nonprofit organization, the landlord shall prepare an inventory of the property which shall include, at a minimum, the categories of furniture, clothing and accessories, and miscellaneous items. A landlord electing to act under this subsection shall immediately send a notice by first-class mail containing the name and address of the property recipient and a copy of the inventory to the person identified in the rental application, lease agreement, or other landlord document as the authorized person to contact in the event of the death or emergency of the tenant and shall post the same notice for 30 days or more at the door of the landlord's primary rental office or the place where the landlord conducts business. The notice posted shall not include an inventory of the property. Any nonprofit organization agreeing to receive personal property under this subsection shall not be liable to the decedent's estate for the disposition of the property, provided that the property has been separately identified and stored for release to a person authorized by law to act on behalf of the decedent for a period of 30 days.
  9. If any lessor, landlord, or agent seizes possession of the decedent's tangible personal property in any manner not in accordance with the provisions of this section, any person authorized by law to act on behalf of the decedent shall be entitled to recover possession of the property or compensation for the value of the property and, in any action brought by any person authorized by law to act on behalf of the decedent, the landlord shall be liable to the decedent's estate for actual damages, but not including punitive damages, treble damages, or damages for emotional distress.
  10. The procedure authorized in this section may be used as an alternative to a summary ejectment action under Chapter 42 of the General Statutes. A landlord shall, in his or her discretion, determine whether to proceed under the provisions of this section or under Chapter 42 of the General Statutes.

History

(2012-17, s. 7.)

Cross References. - As to notice to State Bar of attorney default on lease, see G.S. 42-14.4.

As to prohibition of distress and distraint in landlord-tenant law, see G.S. 42-25.7.

As to landlord filing affidavit to remove personal property from dwelling unit after death of residential tenant, see G.S. 42-36.3.

Editor's Note. - This section was enacted as 28A-25-1.2 by Session Laws 2012-17, s. 7. It was renumbered as this section at the direction of the Revisor of Statutes.

ARTICLE 26. Foreign Personal Representatives and Ancillary Administration.

Sec.

§ 28A-26-1. Domiciliary and ancillary probate and administration.

The domiciliary, or original, administration of the estates of all decedents domiciled in North Carolina at the time of death shall be under the jurisdiction of this State and of a proper clerk of superior court in this State, and the original probate of all wills of such persons shall be in this State. Any administration of the estate and any probate of a will of such decedents outside North Carolina shall be ancillary only. All assets, except real estate (but including proceeds from the sale of real estate), subject to ancillary administration in a jurisdiction outside North Carolina shall, to the extent such assets are not necessary for the requirements of such ancillary administration, be transferred and delivered by the ancillary personal representative to the duly qualified personal representative in this State for administration and distribution by the domiciliary personal representative, and the domiciliary personal representative in this State shall have the duty of collecting all such assets from the ancillary personal representative. The receipt of the domiciliary personal representative shall fully acquit the ancillary personal representative with respect to the assets covered thereby. The domiciliary personal representative in North Carolina shall have the exclusive right and duty to pay all federal and North Carolina taxes owed by the estate of such decedent and to make proper distribution of all assets including those collected from the ancillary personal representative.

History

(1963, c. 634; 1973, c. 1329, s. 3.)

§ 28A-26-2. Payment of debt and delivery of property to domiciliary personal representative of a nonresident decedent without ancillary administration in this State.

  1. At any time after the expiration of 60 days from the death of a nonresident decedent, any resident of this State indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt or deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary personal representative of the nonresident decedent upon being presented with a certified or exemplified copy of the domiciliary personal representative's letters of appointment and an affidavit made by or on behalf of the domiciliary personal representative stating:
    1. The date of the death of the nonresident decedent;
    2. That to the best of the domiciliary personal representative's knowledge no administration, or application or petition therefor, is pending in this State;
    3. That the domiciliary personal representative is entitled to payment or delivery.
  2. Payment or delivery made in good faith on the basis of the proof of appointment as domiciliary personal representative of a nonresident decedent and an affidavit meeting the requirements of subsection (a) constitutes a release to the same extent as if payment or delivery had been made to an ancillary personal representative.
  3. Payment or delivery under this section shall not be made if a resident creditor of the nonresident decedent has, by registered or certified mail, notified the resident debtor of the nonresident decedent or the resident having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary personal representative of the nonresident decedent. If no ancillary administrator qualifies within 90 days from the date of the notice, however, the resident debtor may pay the debt or deliver the property directly to the nonresident domiciliary personal representative as set forth in subsection (a) of this section.

History

(1973, c. 1329, s. 3; 1975, c. 300, s. 11; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the introductory paragraph of subsection (a) and in subdivision (a)(2), substituted "the domiciliary personal representative's" for "his."

§ 28A-26-3. Ancillary administration.

  1. Any domiciliary personal representative of a nonresident decedent upon the filing of a certified or exemplified copy of letters of appointment with the clerk of superior court who has venue under G.S. 28A-3-1 may be granted ancillary letters in this State notwithstanding that the domiciliary personal representative is a nonresident of this State or is a foreign corporation. If the domiciliary personal representative is a foreign corporation, it need not qualify under any other law of this State to authorize it to act as ancillary personal representative in the particular estate. If application is made for the issuance of ancillary letters to the domiciliary personal representative, the clerk of superior court shall give preference in appointment to the domiciliary personal representative unless the decedent shall have otherwise directed in a will.
  2. If, within 90 days after the death of the nonresident, or within 60 days after issue of domiciliary letters, should that be a shorter period, no application for ancillary letters has been made by a domiciliary personal representative, any person who could apply for issue of letters had the decedent been a resident may apply for issue of ancillary letters.

If it is known that there is a duly qualified domiciliary personal representative, the clerk of superior court shall send notice of such application, by registered mail, to that personal representative and to the appointing court. Such notice shall include a statement that, within 14 days after its mailing, the domiciliary personal representative may apply for the issue of ancillary letters with the preference specified in subsection (a) of this section; and that failure of the domiciliary personal representative to do so will be deemed a waiver, with the result that letters will be issued to another. Upon such failure, the clerk of superior court may issue ancillary letters in accordance with the provisions of Article 4 of this Chapter.

If the applicant and the clerk of superior court have no knowledge of the existence of a domiciliary personal representative, the clerk of superior court may proceed to issue ancillary letters. Subsequently, upon it becoming known that a domiciliary personal representative has been appointed, whether such appointment occurred before or after the issue of ancillary letters, the clerk of superior court shall notify the domiciliary personal representative, by registered mail, of the action taken by the clerk of superior court and the state of the ancillary administration. Such notice shall include a statement that at any time prior to approval of the ancillary personal representative's final account the domiciliary personal representative may appear in the proceedings for any purpose the domiciliary personal representative may deem advisable; and that the domiciliary personal representative may apply to be substituted as ancillary personal representative, but that such request will not be granted unless the clerk of superior court finds that such action will be for the best interests of North Carolina administration of the estate.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (b), in the first paragraph, substituted "that failure of the domiciliary personal representative" for "that his failure" in the second sentence, and in the last paragraph, substituted "the domiciliary personal representative" for "he" in the second sentence.

Legal Periodicals. - For note on the Erie Doctrine and Rule 15(c), see 16 Wake Forest L. Rev. 621 (1980).

CASE NOTES

Applied in Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Cited in Messer v. American Gems, Inc., 612 F.2d 1367 (4th Cir. 1980); In re Will of Lamb, 48 N.C. App. 122, 268 S.E.2d 831 (1980).


§ 28A-26-4. Bonds.

  1. Subject to the exception in subsection (b), any personal representative, including a domiciliary personal representative, who is granted ancillary letters of administration in this State must satisfy the bond requirements prescribed in Article 8 of this Chapter.
  2. Where a citizen or subject of a foreign country, or of any other state or territory of the United States, by will sufficient according to the laws of this State, and duly probated and recorded in the proper county, devises to that person's executor, with power to sell and convey, real property situated in this State in trust for a person named in the will, the power being vested in the executor as such trustee, the executor may execute the power without giving bond in this State.

History

(1911, c. 176; C.S., s. 37; Ex. Sess. 1920, c. 86; 1945, c. 652; 1957, c. 320; 1969, c. 1067, ss. 1, 2; 1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "that person's executor" for "his executor" in subsection (b).

§ 28A-26-5. Authority of domiciliary personal representative of a nonresident decedent.

The domiciliary personal representative of the nonresident decedent after qualifying as ancillary personal representative in this State is authorized to administer the North Carolina estate of the nonresident decedent in accordance with the provisions of this Chapter.

History

(1973, c. 1329, s. 3.)

CASE NOTES

Cited in In re Will of Lamb, 48 N.C. App. 122, 268 S.E.2d 831 (1980).


§ 28A-26-6. Jurisdiction.

  1. A domiciliary personal representative of a nonresident decedent may invoke the jurisdiction of the courts of this State after qualifying as ancillary personal representative in this State except that the domiciliary personal representative may invoke such jurisdiction prior to qualification for the purpose of appealing from a decision of the clerk of superior court regarding a question of qualification.
  2. A domiciliary personal representative of a nonresident decedent submits to the jurisdiction of the courts of this State:
    1. As provided in G.S. 1-75.4, or
    2. By receiving payment of money or taking delivery of personal property under G.S. 28A-26-2; or
    3. By acceptance of ancillary letters of administration in this State under G.S. 28A-26-3; or
    4. By doing any act as personal representative in this State which if done as an individual would have given the State jurisdiction over the personal representative as an individual.

History

(1973, c. 1329, s. 3; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the domiciliary personal representative may invoke" for "he may invoke" in subsection (a); and substituted "the personal representative" for "him" in subdivision (b)(4).

CASE NOTES

Claims Brought by Foreign Personal Representative Before Qualifying Locally. - This section neither addresses nor answers the question of what must happen procedurally to a claim brought by a foreign personal representative who locally qualifies after the claim is filed. Indeed, G.S. 28A-13-1 speaks more to this question. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

This section does not mean that a claim filed by a foreign personal representative who has not yet locally qualified is a nullity ab initio requiring the institution of a new claim after qualification. At most, it is simply another way of saying that the foreign administrator must qualify locally before he has capacity to sue in North Carolina. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Applied in Powles v. Kandrasiewicz, 886 F. Supp. 1261 (W.D.N.C. 1995).

§ 28A-26-7. Service on personal representative of a nonresident decedent.

A court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 28A-26-6 may exercise personal jurisdiction over a defendant by service of process in accordance with the provisions of G.S. 1A-1, Rule 4(j).

History

(1973, c. 1329, s. 3.)

§ 28A-26-8. Duties of personal representative in an ancillary administration.

  1. All assets of estates of nonresident decedents being administered in this State are subject to all claims, allowances and charges existing or established against the estate of the decedent wherever existing or established.
  2. An adjudication of a claim rendered in any jurisdiction in favor of or against any personal representative of the estate of a nonresident decedent is binding on the ancillary personal representative in this State and on all parties to the litigation.
  3. Limitations on presentation of claims shall be governed by the provisions of this Chapter except that creditors residing in the domiciliary state barred by the statutes of that state may not file claims in an ancillary administration in this State.
  4. In the payment of claims by the ancillary administrator, the following rules shall apply:
    1. If the value of the entire estate, wherever administered, equals or exceeds family exemptions and allowances, prior charges and claims against the entire estate, the claims allowed in this State shall be paid in full from assets in this State, if such assets are sufficient for the purpose.
    2. If such total exemptions, allowances, charges and claims exceed the value of the entire estate, the claims allowed in this State shall be paid their proper percentage pro rata by class, if assets in this State are sufficient for the purpose.
    3. If assets in this State are inadequate for either of the purposes stated in subdivisions (1) or (2) above, the claims allowed in this State shall be paid, pro rata by class, to the extent the local assets will permit.
    4. If the value of the entire estate, wherever administered, is insufficient to pay all exemptions and allowances, prior charges and claims against the entire estate, the priority for order of payment established by the law of the domicile will prevail.

History

(1973, c. 1329, s. 3; 1975, c. 19, ss. 10, 11.)

CASE NOTES

Applied in In re Will of Lamb, 48 N.C. App. 122, 268 S.E.2d 831 (1980).


§ 28A-26-9. Remission of surplus assets by ancillary personal representative to domiciliary personal representative.

Unless a testator in a will otherwise directs, any assets (including proceeds from the sale of real estate) remaining after payment of claims against the estate of a nonresident decedent being administered by an ancillary personal representative other than the domiciliary personal representative shall be transferred and delivered to the domiciliary personal representative or, if none, to the court in the domicile of the decedent which has jurisdiction to administer the estate.

History

(1973, c. 1329, s. 3.)

ARTICLE 27. Apportionment of Federal Estate Tax.

Sec.

§ 28A-27-1. Definitions.

For the purposes of this Article:

  1. "Estate" means the gross estate of a decedent as determined for the purpose of the federal estate tax.
  2. "Fiduciary" includes a personal representative and a trustee.
  3. "Person" means any individual, partnership, association, joint stock company, corporation, governmental agency, including any multiples or combinations of the foregoing as, for example, individuals as joint tenants.
  4. "Person interested in the estate" means any person, including a personal representative, guardian, or trustee, entitled to receive, or who has received, from a decedent while alive or by reason of the death of a decedent any property or interest therein included in the decedent's taxable estate.
  5. "State" means any state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
  6. "Tax" means the net Federal Estate Tax due, after application of any available unified transfer tax credit, and interest and penalties imposed in addition to the tax.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A-27-9.

CASE NOTES

Cited in Pope v. Rollins (In re Estate of Pope), 192 N.C. App. 321, 666 S.E.2d 140 (2008), review denied, 363 N.C. 126, 673 S.E.2d 129 (2009).


§ 28A-27-2. Apportionment.

  1. Except as otherwise provided in subsection (b) of this section, or in G.S. 28A-27-5, G.S. 28A-27-6, or G.S. 28A-27-8, the tax shall be apportioned among all persons interested in the estate in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values as finally determined for federal estate tax purposes shall be used for the purposes of this computation.
  2. In the event the decedent's will provides a method of apportionment of the tax different from the method provided in subsection (a) above, the method described in the will shall control. However, in the case of any will executed on or after October 1, 1986, a general direction in the will that taxes shall not be apportioned, whether or not referring to this Article, but shall be paid from the residuary portion of the estate shall not, unless specifically stated otherwise, apply to taxes imposed on assets which are includible in the valuation of the decedent's gross estate for federal estate tax purposes only by reason of Sections 2041, 2042 or 2044 of the Internal Revenue Code of 1954 or corresponding provisions of any subsequent tax law. In the case of an estate administered under any will executed on or after October 1, 1986, in the event that the estate tax computation involves assets described in the preceding sentence, unless specifically stated otherwise, apportionment shall be made against such assets and the tax so apportioned shall be recovered from the persons receiving such assets as provided in Sections 2206, 2207 or 2207A of the Internal Revenue Code of 1954 or corresponding provisions of any subsequent tax law.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1; 1987, c. 694, s. 1.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A-27-9.

CASE NOTES

Applied in Estate of Bradford v. Comm'r, T.C. Memo 2002-238 (Sept. 23, 2002).

Cited in Branch Banking & Trust Co. v. Staples, 120 N.C. App. 227, 461 S.E.2d 921 (1995).


§ 28A-27-3. Procedure for determining apportionment.

  1. The personal representative of a decedent shall determine the apportionment of the tax.
  2. If the personal representative finds that it is inequitable to apportion interest and penalties in the manner provided in this Article because such interest or penalties were imposed due to the fault of one or more persons interested in the estate, the personal representative may direct apportionment thereon in the manner the personal representative finds equitable.
  3. The expenses reasonably incurred by the personal representative in connection with the apportionment of the tax shall be apportioned as provided for taxes under this Article. If the personal representative finds that it is inequitable to apportion the expenses because such expenses were incurred because of the fault of one or more persons interested in the estate, the personal representative may direct other more equitable apportionment.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1; 2011-344, s. 4.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A-27-9.

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subsections (b) and (c), substituted "the personal representative" for "he"; and made minor stylistic changes.

§ 28A-27-4. Uncollected tax.

The personal representative shall not be under any duty to institute any suit or proceeding to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the six months next following final determination of the tax. A personal representative who institutes the suit or proceeding within a reasonable time after the six months' period shall not be subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectable at a time following the death of the decedent but thereafter became uncollectable. If the personal representative cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be apportioned among the other persons interested in the estate who are subject to apportionment. The apportionment shall be made in the proportion that the value of the interest of each remaining person interested in the estate bears to the total value of the interests of all remaining persons interested in the estate.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A- 27-9.

§ 28A-27-5. Exemptions, deductions, and credits.

  1. Any interest for which a deduction or exemption is allowed under the federal revenue laws in determining the value of the decedent's net taxable estate, such as property passing to or in trust for a surviving spouse and gifts or devises for charitable, public, or similar purposes, shall not be included in the computation provided for in G.S. 28A-27-2 to the extent of the allowable deduction or exemption. When such an interest is subject to a prior present interest which is not allowable as a deduction or exemption, such present interest shall not be included in the computation provided for in this Article and no tax shall be apportioned to or paid from principal.
  2. Any credit for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or the decedent's estate shall inure to the proportionate benefit of all persons liable to apportionment; provided, however, that if the tax which gives rise to such a credit has in fact been paid by a person interested in the estate, the benefit of such credit shall inure to that person paying the tax.
  3. Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof in respect to property or interests includible in the estate shall inure to the benefit of the persons or interests chargeable with the payment thereof to the extent that, or in the proportion that, the credit reduces the tax.
  4. To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar gift or  devise does not constitute an allowed deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property shall not be included in the computation provided for in this Article, and to that extent no apportionment shall be made against the property. This section does not apply in any instance where the result will be to deprive the estate of a deduction otherwise allowable under Section 2053(d) of the Internal Revenue Code of 1954 of the United States or corresponding provisions of any subsequent tax law, relating to deduction for State death taxes on transfers for public, charitable, or religious uses.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1; 1987, c. 694, ss. 2, 3; 2011-284, s. 21(a), (b); 2011-344, s. 4.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A-27-9.

Effect of Amendments. - Session Laws 2011-284, s. 21(a) and (b), effective June 24, 2011, substituted "devises" for "bequests" in the first sentence of subsection (a); and substituted "devise" for "bequest" in the first sentence of subsection (d).

Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the decedent's estate" for "his estate" in subsection (b).

CASE NOTES

Applied in Estate of Bradford v. Comm'r, T.C. Memo 2002-238 (Sept. 23, 2002).

Cited in Pope v. Rollins (In re Estate of Pope), 192 N.C. App. 321, 666 S.E.2d 140 (2008), review denied, 363 N.C. 126, 673 S.E.2d 129 (2009).


§ 28A-27-6. No apportionment between temporary and remainder interests.

No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1.)

Cross References. - As to the applicability of the provisions of this Article, see G.S. 28A-27-9.

§ 28A-27-7. Fiduciary's rights and duties.

  1. The personal representative may withhold from any property of the decedent in the personal representative's possession, distributable to any person interested in the estate, the amount of the tax apportioned to the person's interest. If the property in possession of the personal representative and distributable to any person interested in the estate tax is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative, the personal representative may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this Article.
  2. If property held by the fiduciary or other person is distributed prior to final apportionment of the tax, the personal representative may require the distributee to provide a bond or other security for the apportionment liability in the form and amount prescribed by the fiduciary, with the approval of the clerk of superior court having jurisdiction of the administration of the estate.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1; 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in subsection (a), in the first sentence, substituted "the personal representative's possession" for "his possession" and "the person's interest" for "his interest," and in the last sentence, substituted "possession of the personal representative, the personal representative may recover" for "possession of the personal representative he may recover."

§ 28A-27-8. Difference with Federal Estate Tax Law.

If the liabilities of persons interested in the estate as prescribed by this Article differ from those which result under the Federal Estate Tax Law, the liabilities imposed by the federal law will control and the balance of this Article shall apply as if the resulting liabilities had been prescribed herein.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1.)

§ 28A-27-9. Effective date.

The provisions of this Article shall not apply to taxes due on account of the death of decedents dying prior to October 1, 1986.

History

(1985 (Reg. Sess., 1986), c. 878, s. 1.)

ARTICLE 28. Summary Administration.

Sec.

§ 28A-28-1. Summary administration where spouse is sole beneficiary.

When a decedent dies testate or intestate leaving a surviving spouse as the sole devisee or heir, the surviving spouse may file a petition for summary administration with the clerk of superior court of the county where the decedent was domiciled at the time of death. This procedure is available if the decedent died partially testate, provided that the surviving spouse is the sole devisee under the will and the sole heir of the decedent's intestate property. This procedure is not available if the decedent's will provides that it is not available or if the devise to the surviving spouse is in trust rather than outright.

History

(1995, c. 294, s. 1.)

Legal Periodicals. - For article, "Perpetuities Reform in North Carolina: The Uniform Statutory Rule Against Perpetuities, Nondonative Transfers, and Honorary Trusts," see 74 N.C.L. Rev. 1783 (1996).

§ 28A-28-2. Petition.

  1. The petition shall be signed by the surviving spouse and verified to be accurate and complete to the best of the spouse's knowledge and belief and shall state as follows:
    1. The name and address of the spouse and the fact that the spouse is the surviving spouse of the decedent;
    2. The name and domicile of the decedent at the time of death;
    3. The date and place of death of the decedent;
    4. The date and place of marriage of the spouse and the decedent;
    5. A description sufficient to identify each tract of real property owned in whole or in part by the decedent at the time of death;
    6. A description of the nature of the decedent's personal property and the location of such property, as far as these facts are known or can with reasonable diligence be ascertained;
    7. The probable value of the decedent's personal property, so far as the value is known or can with reasonable diligence be ascertained;
    8. That no application or petition for appointment of a personal representative is pending or has been granted in this State;
    9. That the spouse is the sole devisee or sole heir, or both, of the decedent, and that there is no other devisee or heir; that the decedent's will, if any, does not prohibit summary administration; and that any property passing to the spouse under the will is not in trust;
    10. The name and address of any executor or coexecutor named by the will and that, if the decedent died testate, a copy of the petition has been personally delivered or sent by first-class mail by the spouse to the last-known address of any executor or coexecutor named by the will, if different from the spouse;
    11. That, to the extent of the value of the property received by the spouse under the will of the decedent or by intestate succession, the spouse assumes all liabilities of the decedent that were not discharged by reason of death and assumes liability for all taxes and valid claims against the decedent or the estate, as provided in G.S. 28A-28-6; and
    12. If the decedent died testate, that the decedent's will has been admitted to probate in the court of the proper county; that a duly certified copy of the will has been recorded in each county in which is located any real property owned by the decedent at the time of death; and that a certified copy of the decedent's will is attached to the petition.
  2. The petition shall be filed by the clerk upon payment of the fee provided in G.S. 7A-307 and shall be indexed in the index to estates.

History

(1995, c. 294, s. 1; c. 509, s. 135.2(a); 2011-344, s. 4.)

Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted "the spouse is" for "he or she is" in subdivision (1).

§ 28A-28-3. Clerk's order.

If it appears to the clerk that the petition and supporting evidence, if any, comply with the requirements of G.S. 28A-28-2 and on the basis thereof the spouse is entitled to summary administration, the clerk shall enter an order to that effect and no further administration of the estate is necessary. Nothing in this section shall preclude a petition under the provisions of G.S. 28A-28-7(a) or the appointment of a personal representative or a collector under the provisions of Article 6 or Article 11 of this Chapter.

History

(1995, c. 294, s. 1.)

§ 28A-28-4. Effect of order.

  1. The presentation of a certified copy of the order described in G.S. 28A-28-3 shall be sufficient to require the transfer to the spouse of any property or contract right owned by the decedent at the time of death, including but not limited to: (i) wages and salary; (ii) the title and license to a motor vehicle registered in the name of the decedent owner; (iii) the ownership rights of a savings account, checking account, or certificate of deposit in a bank in the name of the decedent owner; (iv) the ownership rights of a savings account, share certificate, or certificate of deposit in a credit union, building and loan association, or savings and loan association in the name of the decedent owner; and (v) the ownership rights in any stock or security registered on the books of a corporation in the name of the decedent owner.
  2. After the entry of the order described in G.S. 28A-28-3, the spouse may convey, lease, sell, or mortgage any real property devised to or inherited by the spouse from the decedent, at public or private sale, upon such terms as the spouse may determine. This section shall not limit any other powers the spouse may have over property devised to or inherited by the spouse from the decedent. The provisions of G.S. 28A-17-12 are not applicable to a conveyance, sale, lease, or mortgage under this subsection.

History

(1995, c. 294, s. 1.)

§ 28A-28-5. Effect of payment.

The person paying, delivering, transferring, or issuing property or the evidence thereof pursuant to the order described in G.S. 28A-28-3 is discharged and released to the same extent as if the person dealt with a duly qualified personal representative of the decedent. The person is not required to see to the application of the property or evidence thereof or to inquire into the truth of any statement in the petition or order.

If any person to whom the order is presented refuses to pay, deliver, transfer, or issue any property or evidence thereof, the property may be recovered or its payment, delivery, transfer, or issuance may be compelled in an action brought for that purpose by the surviving spouse. The court costs and attorney's fee incident to the action shall be taxed against the person whose refusal to comply with the provisions of G.S. 28A-28-4 made the action necessary.

History

(1995, c. 294, s. 1.)

§ 28A-28-6. Spouse's assumption of liabilities.

If the clerk grants the order for summary administration, the spouse shall be deemed to have assumed, to the extent of the value of the property received by the spouse under the will of the decedent or by intestate succession, all liabilities of the decedent that were not discharged by reason of death and liability for all taxes and valid claims against the decedent or the estate. The value of the property is the fair market value of the property on the date of death of the decedent less any liens or encumbrances on the property so received. The spouse may assert any defense, counterclaim, cross-claim, or setoff which would have been available to the decedent if the decedent had not died except for actions listed in G.S. 28A-18-1(b). A spouse shall not be deemed to have assumed any liabilities of the decedent that were discharged by reason of death.

History

(1995, c. 294, s. 1.)

§ 28A-28-7. Right to petition for appointment of personal representative; discharge of spouse's liability.

  1. Nothing in this Article shall preclude any person qualified to serve as personal representative pursuant to G.S. 28A-4-1, including the surviving spouse, from petitioning the clerk of superior court for the appointment of a personal representative or collector to administer the decedent's estate. If a personal representative or collector is appointed, the spouse shall render a proper accounting to the personal representative or collector and file a copy of the accounting with the clerk. The spouse shall deliver assets of the decedent's estate, cash, or other property and shall be discharged of liability in accordance with the provisions of subsection (b) of this section.
  2. In the event that a personal representative or collector is appointed, the spouse shall be discharged of liability for the debts of the decedent as follows:
    1. If the spouse delivers to the personal representative or collector all of the property received by the spouse in the identical form that it was received by the spouse, then the spouse will be discharged of all liability.
    2. If the spouse does not deliver to the personal representative or collector all of the property in the identical form that it was received by the spouse, then the spouse shall be discharged of liability as follows:
      1. For property delivered to the personal representative or collector that is in the identical form that it was received by the spouse, the spouse is discharged to the extent of the fair market value of the property at the time of the decedent's death or the fair market value at the time the property was received by the personal representative or collector, whichever is greater.
      2. For property delivered to the personal representative or collector that is not in the identical form that it was received by the spouse, the spouse is discharged to the extent of the fair market value of such property at the time it was delivered to the personal representative or collector.

History

(1995, c. 294, s. 1.)

Legal Periodicals. - For article, "Perpetuities Reform in North Carolina: The Uniform Statutory Rule Against Perpetuities, Nondonative Transfers, and Honorary Trusts," see 74 N.C.L. Rev. 1783 (1996).

ARTICLE 29. Notice to Creditors Without Estate Administration.

Sec.

§ 28A-29-1. Notice to creditors without estate administration.

When (i) a decedent dies testate or intestate leaving no personal property subject to probate and no real property devised to the personal representative; (ii) a decedent's estate is being administered by collection by affidavit pursuant to Article 25 of this Chapter; (iii) a decedent's estate is being administered under the summary administration provisions of Article 28 of this Chapter; (iv) a decedent's estate consists solely of a motor vehicle that can be transferred by the procedure authorized by G.S. 20-77(b); or (v) a decedent has left assets that may be treated as assets of an estate for limited purposes as described in G.S. 28A-15-10, and no application or petition for appointment of a personal representative is pending or has been granted in this State, any person otherwise qualified to serve as personal representative of the estate pursuant to Article 4 of this Chapter or the trustee then serving under the terms of a revocable trust created by the decedent may file a petition to be appointed as a limited personal representative to provide notice to creditors without administration of an estate before the clerk of superior court of the county where the decedent was domiciled at the time of death. This procedure is not available if the decedent's will provides that it is not available. A limited personal representative shall have the rights and obligations provided for in this Article.

History

(2009-444, s. 1; 2013-91, s. 1(b).)

Editor's Note. - Session Laws 2009-444, s. 4, made this Article effective October 1, 2009, and applicable to estates of persons dying on or after that date.

Effect of Amendments. - Session Laws 2013-91, s. 1(b), effective June 12, 2013, rewrote the first sentence which read: "When a decedent dies testate or intestate leaving no property subject to probate, any person otherwise qualified to serve as personal representative of the estate pursuant to Article 4 of this Chapter or the trustee then serving under the terms of a revocable trust created by the decedent may file a petition to be appointed as a limited personal representative to provide notice to creditors without administration of an estate before the clerk of superior court of the county where the decedent was domiciled at the time of death."

§ 28A-29-2. Petition.

  1. The application for appointment as limited personal representative shall be in the form of an affidavit sworn to before an officer authorized to administer oaths, signed by the applicant or the applicant's attorney, which may be supported by other proof under oath in writing, all of which shall be recorded and filed by the clerk of superior court, and shall allege all of the following facts:
    1. The name and domicile of the decedent at the time of death.
    2. The date and place of death of the decedent.
    3. That, so far as is known or can with reasonable diligence be ascertained, (i) the decedent left no personal property subject to probate and no real property devised to the personal representative; (ii) the decedent's estate is being administered by collection by affidavit pursuant to Article 25 of this Chapter; (iii) the decedent's estate is being administered under the summary administration provisions of Article 28 of this Chapter; (iv) the decedent's estate consists solely of a motor vehicle that can be transferred by the procedure authorized by G.S. 20-77(b); or (v) the decedent left assets that may be treated as assets of an estate for limited purposes as described in G.S. 28A-15-10.
    4. That no application or petition for appointment of a personal representative is pending or has been granted in this State.
  2. If it appears to the clerk of superior court that the application and supporting evidence comply with the requirements of subsection (a) of this section and on the basis thereof the clerk finds that the applicant is entitled to appointment, the clerk shall issue letters of limited administration.
  3. The petition shall be filed by the clerk upon payment of the fee provided in G.S. 7A-307(a) and shall be indexed in the index to estates.

History

(2009-444, s. 1; 2013-91, s. 1(c).)

Effect of Amendments. - Session Laws 2013-91, s. 1(c), effective June 12, 2013, substituted the present provisions of paragraph (a)(3) for the former provisions which read: "That, so far as is known or can with reasonable diligence be ascertained, the decedent's property is not subject to probate."

§ 28A-29-3. Effect of appointment.

A limited personal representative appointed under this Article shall provide notice to all persons, firms, and corporations having claims against the decedent, and proof of such notice shall be in accordance with the provisions of Article 14 of this Chapter.

History

(2009-444, s. 1.)

§ 28A-29-4. Presentation, payment, and limitation of claims.

Upon compliance with G.S. 28A-29-3, creditors of the decedent and the decedent's property shall present claims in accordance with the provisions of Article 19 of this Chapter, and creditors failing to file such claims shall be barred as provided in G.S. 28A-19-3. The limited personal representative shall administer claims so presented in accordance with the procedures and priorities provided pursuant to Article 19 of this Chapter. At any time after a claim is presented in accordance with the provisions of this section, the clerk may appoint a personal representative to administer the decedent's estate.

History

(2009-444, s. 1.)

§ 28A-29-5. Right to petition for appointment of personal representative.

Nothing in this Article shall preclude any person qualified to serve as personal representative pursuant to G.S. 28A-4-1, including the limited personal representative, from petitioning the clerk of superior court for the appointment of a personal representative to administer the decedent's estate.

History

(2009-444, s. 1.)