Bill Summary for S 50 (2021-2022)

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Summary date: 

Feb 3 2021

Bill Information:

View NCGA Bill Details2021
Senate Bill 50 (Public) Filed Wednesday, February 3, 2021
Intro. by Daniel, Galey.

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Bill summary

Part I

Enacts Article 4C, Judicial Establishment of Validity of a Revocable Trust, of GS Chapter 36C. Gives a settlor the right to petition for judicial declaration establishing the validity of a revocable trust during the settlor's lifetime. Requires filing the petition in superior court, producing necessary evidence at a hearing, with service of summonses to interested parties. Allows for joinder with a claim for judicial declaration establishing the validity of the petitioner's will or codicil under state laws governing living probate, to be heard in superior court. Specifies that failure to use the procedures of Article 4C does not have any evidentiary or procedural effect on any future proceedings. Provides for required contents in the petition, including the petitioner's NC residency, valid preparation and execution of the revocable trust, capacity and free will, identification of interested parties, and the petitioner attaching a copy of the revocable trust and any effective amendments to the petition. Requires affixing a certificate of validity to a revocable trust and amendments which was declared valid by order. Details the binding nature of a judicial declaration of validity, including barring parties from challenging the validity of the revocable trust once that trust becomes irrevocable. Allows the petitioner or the court to motion for an order to prevent revocation of the trust unless the revocation or subsequent amendment is validated pursuant to the Article. Further provides for later revocation after declared validity. Allows for parties to motion that the file be sealed and kept confidential. Provides for exceptions.

Amends GS 36C-2-204 to establish that the proper venue for cases to establish the validity of a revocable trust before death is the county in which the petitioner whose revocable trust is the subject of the petition resides.

Amends GS 36C-10-1004 to allow for attorneys' fees for attorneys of a party contesting the proceeding to establish the validity of a revocable trust if the court finds reasonable grounds for contest.

Amends GS 36C-2-203 to exclude actions to establish the validity of a revocable trust from the subject matter jurisdiction of superior court clerks. 

Applies to proceedings initiated on or after October 1, 2021.

Part II

Amends GS 35A-1120 to require appointment of a guardian of a minor pursuant to the provisions of Subchapter II, Guardian and Ward, upon proper application for appointment under Article 6.

Enacts GS 35A-1121, authorizing a superior court clerk to enter into a protective arrangement or other transactions to meet the foreseeable needs of a minor or incompetent person if it is established in a proper proceeding that a basis exists for the appointment of a guardian of a minor or an incompetent person. Details authorized actions and preconditions required. Authorizes the clerk to appoint a limited guardian to assist in authorized actions. Applies to proceedings initiated on or after October 1, 2021.

Part III

Amends GS 36C-2-204, concerning venue for trust proceedings. Eliminates language providing that the stated rules apply notwithstanding applicable Rules of Civil Procedure. No longer provides for the governing instrument to vary from the statutory provisions regarding venue where trustees are required to account to the superior court clerk. Instead, enacts a new rule to require objections to improper venue in trust proceedings to be governed by the Rules of Civil Procedure for superior court proceedings. For proceedings before superior court clerks, requires the objection to be made as part of a timely served response to the complaint or petition, or within 20 days of service if no response is filed. Establishes that the validity of a trust proceeding is not affected by any error in venue. Makes technical changes. 

Amends GS 28A-2-6 and GS 36C-2-205 to make Rules 52(b), 58, and 59 of the Rules of Civil Procedure (regarding entry of judgments and amendments to findings and judgements) applicable to estate and trust proceedings, unless the clerk directs otherwise. Further amends GS 36C-2-205 to extend the time joined respondents to contested trust proceedings must answer the petition from 10 to 20 days after service. 

Amends GS 1-301.3, concerning appeals of trust and estate matters. Requires filing notice of appeal with the clerk within 10 days of service of the order on that party (was, within 10 days of entry of the order or judgement after service). Adds that the 10-day period for taking appeal is tolled as to all parties if a timely motion to amendment the judgment is made by any party for relief under Rule 52(b) or 59 of the Rules of Civil Procedure. Provides for the 10-day period to run as to each party from service of the order disposing of that motion. Adds new language regarding the judge's duty on appeal to require a judge who retains jurisdiction and either excludes evidence that the clerk considered or considers evidence that the clerk excluded to review the issues of fact and law de novo based on the record from the hearing, as modified, and any new evidence heard by the court. Makes technical changes to GS 28A-9-4, regarding the procedure for appeals from clerk orders granting or denying revocation, to refer to estate proceeding appeals under GS 1-301.3.

Applies to proceedings initiated on or after October 1, 2021. 

Part IV

Amends GS 31D-2-201 to no longer include in the criteria for creating a power of appointment that the creating instrument for a power of appointment transfer the appointive property. 

Amends GS 31D-3-305 to authorize the power holder of a nongeneral power to create a nongeneral power in a permissible appointee to appoint one or more persons if the permissible appointees of the new nongeneral power include one or more permissible appointees of the original nongeneral power, unless the terms of the instrument creating a power of appointment manifest a contrary intent. Makes technical changes.

Part V

Includes a severability clause.