AN ACT TO AMEND THE JURISDICTIONAL AND PROCEDURAL PROVISIONS OF THE PROBATE CODE AND RELATED STATUTES TO PROVIDE UNIFORMITY IN ESTATE MATTERS, TO DEFINE THE JURISDICTION OF THE CLERK OF SUPERIOR COURT CONSISTENT WITH THE PROVISIONS OF THE UNIFORM TRUST CODE, TO RECODIFY CERTAIN PROVISIONS RELATING TO THE PROBATE OF WILLS, AND TO UPDATE AND AMEND THE PROCEDURE FOR CLAIMING SPOUSAL AND CHILDREN'S ALLOWANCES. Summarized in Daily Bulletin 3/30/11 and 5/3/11. Enacted June 27, 2011. Effective January 1, 2012.
Bill Summaries: S432 REVISE PROBATE CODE.
Summary date: Jun 30 2011 - View Summary
Bill S 432 (2011-2012)Summary date: May 3 2011 - View Summary
Senate committee substitute makes the following changes to 1st edition.
Amends proposed GS 28A-2-6(h), which concerns transfers of estate proceedings, to clarify that a notice to transfer certain estate proceedings, in the case of the clerk of superior court, must be served before or at the first duly noticed hearing and before the presentation of evidence, including a hearing at which an order of continuance is entered (previously, must be served 30 days from the date upon which the parties filed all responsive pleadings or the time for responding expired). Amends proposed GS 28A-19-5(b), which concerns contingent or unliquidated claims rejected by personal representatives, clarifying that a claimant may, within the prescribed three-month period, file a petition for an order of the clerk of superior court, provided that nothing in the statute requires the clerk to hear and determine the validity of, priority of, or amount of a contingent or unliquidated claim that has yet become absolute. Deletes amendment to GS 32A-20(b) and instead amends GS 32A-20(a), providing that, for purposes of exercising authority under GS 32A-19(b), a health care power of attorney is effective following the principal’s death without regard to the principal’s understanding or capacity when the principal was living. Further states that the statute does not prevent a principal from revoking a health care power of attorney. Deletes proposed GS 31A-16, which provided that any controversies arising under GS Chapter 31A (Acts barring property rights) are determined as estate proceedings under GS 28A-2-4. Makes other technical and clarifying changes.
Bill S 432 (2011-2012)Summary date: Mar 30 2011 - View Summary
Makes the following amendments to GS 1-301.3. Changes the catch line to read, “appeal of trust and estate matters determined by clerk” (was, estate matters). Provides that the section applies to the administration of trusts (was, testamentary trusts) and of estates of decedents, incompetents and minors. Provides that a party wishing to appeal an order or judgment by the clerk may file a written notice of appeal containing a short and plain statement of the basis for the appeal (was, required written notice to specify the basis for the appeal) within ten days of the entry of the order or judgment after service of the order on that party. Provides that in an appeal to superior court, if the record is insufficient, the judge of superior court may receive additional evidence on the factual (was evidentiary) issue in question.
Under current law, GS 7A-307 list the costs assessed in administration of estates. Amends GS 7A-307 to add estate proceedings under new GS 28A-2-4 (subject matter jurisdiction of the clerk of superior court in estate proceedings) to the list of those whose costs are assessed under this section. Adds that the cost assessed for the filing of a caveat to a will is $200. Provides that the only cost assessed with reopening an estate administration under GS 28A-23-5 is forty cents per $100, or major fraction, of any additional gross estate, including income, coming into the hands of the fiduciary after the estate is reopened; caps the total cost assessed, including the total cost assessed in all previous administrations of the estate, at $6,000.
Definitions and other general provisions of GS Chapter 28A. Expands the definitions under GS 28A-1-1 to include (1) estate proceeding, meaning a matter initiated by petition related to the administration, distribution, or settlement of an estate, other than a special proceeding; (2) party, meaning a party joined as a petitioner or respondent in the context of a contested or uncontested estate proceeding under GS 28A-2-6; and (3) person, meaning an individual and any other legal or commercial entity such as a corporation, an estate, or a governmental subdivision, agency, or instrumentality. Deletes the definition for service.
Enacts new GS 28A-2-4 providing that the clerks of superior court of North Carolina, as ex-officio judges of probate, have original jurisdiction of estate proceedings. Provides types of estate proceedings under the subject matter jurisdiction of the clerk of superior court. Also provides criteria regarding the transfer of an estate proceeding to superior court. Provides that Article 26 of GS Chapter 1 applies to a trust proceeding pending before the clerk of superior court to the extent consistent with Article 1 of GS 28A. Provides that nothing in this section affects a person’s right to file an action in the Superior Court Division of the General Court of Justice for declaratory relief under Article 26, GS Chapter 1. Provides additional specifications regarding requests for declaratory relief and motions for a transfer of proceedings to superior court. Declares that the clerk of superior court does not have jurisdiction of (1) actions by or against creditors or debtors of an estate except as provided in Article 19 of GS Chapter 28A; (2) actions involving claims for monetary damages; (3) caveats, except as provide under GS 31-36; (4) proceedings to determine venue; and (5) recovery of property transferred or conveyed by a decedent with the intent to hinder, delay, or defraud creditors, pursuant to GS 28A-15-10(b). Enacts new GS 28-2-5 to provide that the clerk of superior court has jurisdiction over special proceedings and that nothing in the statute is to be construed as limiting the jurisdiction of the clerk of superior court in special proceedings.
Enacts new GS 28A-2-6. Provides directives for the commencement of contested and uncontested estate proceedings. Additionally, provides directives regarding pleadings, extensions of time, consolidation of an estate proceeding and a civil action involving a common question of law or fact, joinder of claims, and providing notice of transfer. Provides that unless otherwise directed by the clerk of superior court, Rules 4.5, 6(a), 6(d), 6(e), 18, 19, 20, 21, 24, 45, 56, and 65 of G.S. 1A 1, the Rules of Civil Procedure, apply to estate proceedings. Also provides that the clerk may further direct that any or all of the remaining rules apply. Provides criteria governing the issuing of orders by the clerk or the judge upon the consolidation, joiner, or transfer of an estate proceeding.
Enacts additional new statutory provisions regarding representation of parties (GS 28A-2-7), waiver of notice (GS 28A-2-8), appeals of estate proceedings and special proceedings (GS 28A-2-9), and approval of family settlement agreements by the clerk (GS 28A-2-10).
Probate of Will. Amends GS Chapter 28A, recodifying Article 5 of GS Chapter 31, GS 31-12 through GS 31-31.2 as Article 2A of GS Chapter 28A, GS 28A-2A-1 through GS 28A-2A-23.
Makes the following changes to new Article 2A of GS Chapter 28A.
Authorizes the clerk of superior court to shorten the initial 60-day period during which the executor may apply to have the will proved, if good cause is shown. Enacts new GS 28A-2A-7 to provide that a person entitled to apply for probate of a will under GS 28-2A-1 or GS 28A-2A-2 may file a petition for probate of the will in solemn form, and the matter will proceed as an estate proceeding governed by Article 2 of GS Chapter 28A. Provides directives regarding probate of a will in solemn form and regarding contesting the validity of a will by an interested party.
Administration of Decedents’ Estates. Amends GS 28A-3-2 to provide that any interested person may file a petition to determine the proper venue for the administration of the estate. Amends GS 28A-4-1 to provide that any interested person may file a petition under Article 2 of GS Chapter 28 alleging that a person or persons is (are) disqualified to serve as administrator of the estate in accordance with the listing of disqualified persons to serve as a personal representative under GS 28A-4-2.
Amends GS 28A-5-1 regarding the implied renunciation by a named or designated executor, providing the procedures to be followed should a person named or designated as an executor fail to qualify or renounce the office of executor within 30 days after the will has been admitted to probate. Amends GS 28A-5-2 regarding the implied renunciation of the right to administer an estate by a person entitled to apply for letters of administration, providing the procedures to be followed should a person so entitled fail to apply for letters of administration within 30 days from the date of death of the intestate decedent. Amends both GS 28A-5-1 and GS 28A-5-2 to delete provision authorizing the clerk of superior court to issue a citation against a person who has failed to qualify or renounce to show cause that the person should not be determined to have renounced the office of executor; instead provides for the clerk of superior court to issue a notice to that person to qualify or move for an extension of time to qualify within 15 days. Also provides that any interested person may file a petition in accordance with Article 2 of GS Chapter 28A seeking an order finding that the person be deemed to have renounced the office of executor.
Amends GS 28A-6-1 to provide that the clerk of superior court may rely on the following as evidence of death: (1) a certified or authenticated copy of a death certificate purported 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 domestic or foreign governmental agency evidencing the date of death, (3) a certificate or authenticated copy of medical records evidencing the date of death, or (4) any other evidence that clerk of superior court deems sufficient to confirm the date of death.
Amends GS 28A-6-2 to provide that letters of administration or testamentary letters may be issued without notice including upon a finding of implied renunciation under GS 28A-5-1(b) and GS 28A-5-2(b). Provides that all persons entitled to an equal or higher preference for appointment than an applicant who is not entitled to a priority of appointment under GS 28A-4-1 are to be given 15 days prior written notice of the application of the person who is not entitled to a priority of appointment, unless the persons with an equal or higher preference have renounced in accordance with the provisions of Article 5 of GS Chapter 28A.
Amends GS 28A-6-4 to clarify that before letters of administration or letters testamentary are issued, any interested person may by written petition (was, objection), filed with the clerk of superior court and served on interested persons as directed by the clerk of superior court, contest the issuing of letters of administration or letters testamentary to a person who is otherwise entitled to apply for the letters. Directs the clerk of superior court to conduct a hearing to determine to whom the letters are to be issued and provides that an appeal from the order may be taken as in an estate proceeding under GS 1-301.3.
Amends GS 28A-8-1 to provide that no bond is required for a personal representative who is a trust institution licensed under GS 53-159 (was, a national banking association having its principal place of business in this state or a state bank acting under GS 53-159).
Amends GS 28A-8-3 to provide that upon receipt of a verified petition filed by an interested party requesting modification of bond requirements, the clerk of superior court (clerk) is to conduct a hearing in accordance with Article 2 of GS Chapter 28A (was, required the clerk to issue a citation requiring the personal representative to show cause why the bond should not be modified). Amends GS 28A-8-4 to provide that if any personal representative fails to comply with an order by the clerk regarding additional bond or new bond within the time specified in the order (not less than five days or more than 15 days), the clerk is to proceed as provided in GS 28A-9-2.
Amends GS 28A-8-5 to direct the clerk conduct a hearing under Article 2 of GS Chapter 28A upon verified petition from any surety, on the bond of a personal representative, who is in danger of loss of the surety’s suretyship. Amends subsection (b) of GS 28A-9-1 to allow the clerk to conduct a hearing, on the clerk’s own motion or upon the verified petition of any person interested in the estate, in accordance with Article 2 of GS Chapter 28A to determine if any of the grounds for revocation of letters of administration, letters testamentary, or letters of collection as indicated in subsection (a) of this section exist. Provides that notice of the hearing is to be provided in accordance with Article 2 of GS Chapter 28A. Amends GS 28A-9-4 and GS 28A-10-6 to clarify that (1) an appeal from the order of the clerk granting or denying revocation and (2) an appeal from an order of the clerk denying or allowing the resignation of a personal representative are special proceedings pursuant to GS 28A-2-9(b). Authorizes the clerk to issue a stay of an order of revocation or of an order allowing resignation upon the appellant posting an appropriate bond set by the clerk until such time as the cause is heard and determined upon appeal.
Amends GS 28A-13-3. Current law requires a personal representative to petition the clerk to obtain an order authorizing the personal representative’s custody, control, or possession over real property of the estate. Makes an exception for real property that is given to the personal representative in the deceased person’s will, or real property to which the personal representative acquires title during the administration of the estate, providing that the personal representative is immediately entitled to custody, possession, and control of real property meeting this exception and may institute an estate proceeding under subsection (d) of this section to enforce those rights. Subsection (d) provides that the personal representative may institute an estate proceeding under Article 2 of GS Chapter 28A. Also provides that if the real property is occupied by a tenant or lessee, the personal representative may seek ejectment of the tenant or lessee only through the summary ejectment provisions of Article 3 of GS Chapter 42.
Amends GS 28A-13-6(c1), replacing the word trust where it occurs with the word estate. Amends GS 28A-15-12, changing the catch line to Actions to recover property of decedent (was, Examination of persons or corporations believed to have possession of property of decedent). Deletes subsection (a) and replaces it with subsection (a1) providing that a personal representative or collector has the right to sue in superior court to recover any property of any kind that belongs to the estate of the decedent and is entitled to provisional remedies as provided for under Subchapter 13 of GS Chapter 1. Also deletes subsection (b) and replaces it with subsection (b1) providing a personal representative, collector, or any interested person has the right to file a verified petition to institute an estates proceeding for examination of any persons reasonably believed to be in possession of property of any kind belonging to the decedent’s estate and to make a demand for the recovery of that property.
Amends GS 28A-19-1 to provide that in a pending legal action against the decedent at the time of the decedent’s death, which survives the decedent’s death, the court may order, on motion, the substitution of the personal representative or collector for the decedent and that motion will constitute the presentation of a claim providing that the substitution occurs within the time specified for the presentation of claims under GS 28A-19-3.
Amends GS 28A-19-3 to clarify that except as otherwise specifically provided in this section, the limitations on presentation of claims set out in this section apply to claims by the State of North Carolina, its subdivisions, and its agencies. Amends GS 28A-19-5 providing that the clerk may provide for the payment of contingent and unliquidated claims via transfer of a petition filed under subsection (b) of GS 28A-19-5 to the superior court trial division for a determination of the validity or priority of the claim. Provides basis for a claimant securing of a hearing by filing a petition with the clerk with respect to a contingent or unliquidated claim rejected by a personal representative under GS 28A-19-16.
Amends GS 28A-19-8 to provide that funeral expenses of a decedent advanced by a health care agent exercising authority described in GS 32A-19(b) are to be considered as an obligation of the estate regardless as to whether or not a personal representative of the estate has been appointed at the time the expenses are incurred. Amends GS 28A-19-9 to authorize a decedent’s health care agent duly appointed under Article 3 of GS Chapter 32A to purchase a gravestone and provide a suitable burial place and receive reimbursement for the expenses incurred subject to the monetary limitations and procedures contained in this section. Amends GS 28A-19-16 to provide that a claimant must begin an action for recovery with regards to a claim that is presented and rejected within three months of receiving written notice of the rejection (was, after due notice in writing or after some part of claim becomes due). Provides that in the cares of a contingent or unliquidated claim, the claimant must file a petition for an order from the clerk pursuant to GS 23A-19-5(b).
Amends GS 28A-21-2 to provide that absent an extension by the clerk of the time for filing the final account 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 under GS 28A-21-1, whichever is later.
Enacts new GS 28A-21-6 to provide that the personal representative or collector may give written notice (but is not required to do so) of a proposed final account under GS 1A-1, Rule 4, to all devises of the estate in the case of a will, and to all heirs of the state when the decedent was without a will, indicating the date and place of the filing of the final account. Provides guidelines regarding the permissive notice of final accounts.
Amends GS 28A-23-1 to direct the clerk, upon reviewing and approving the personal representative’s or collector’s final account, to enter an order discharging the personal representative or collector from further duties and liabilities (was, liabilities), including those set out in Article 13 of GS Chapter 28A. Prohibits the discharge order from including a release or discharge of liability for any breach of duty by a personal representative or collector as set forth in GS 28A-13-10(c).
Amends GS 28A-25-1 regarding the collection of property through used of an affidavit when the decedent dies intestate. Provides that when the person collecting the property by affidavit is the surviving spouse and only heir of the decedent, and not disqualified under GS 28A-4-2, the property that may be collected under this section may be more than $20,000 in value but may not exceed $30,000 in value, after reduction for any spousal allowance paid to the surviving spouse under GS 30-15.
Makes conforming and clarifying changes to GS Chapter 28A.
Intestate Succession. Enacts new GS 29-12.1 to provide that controversies arising under GS Chapter 29 are to be determined as an estate proceeding under Article 2 of GS Chapter 28A except for controversies arising under Article 8 of GS Chapter 29 (Election to Take Life Interest in Lieu of Intestate Share), which are to be determined as set out in GS Chapter 29. Amends GS 29-30 to provide that when a surviving spouse of an intestate decedent elects to take a life estate in the dwelling house and the value of that life estate is less than one-third in value of all the real estate, the surviving spouse may elect to take a life estate in other real estate of the intestate decedent so as to make the aggregate life estate of the surviving spouse equal to a life estate that is one-third in value of all the real estate. Provides that the election of the surviving spouse to tale a life estate in one-third value of all the real estate of the decedent is to be made by the filing of a petition (was filing of a notice) in accordance with Article 2 of GS Chapter 28A with the clerk of superior court in the appropriate county. Also lists applicable time periods for making the election and requires that the election be made before the shorter of the applicable time periods. Directs that no provisions in subsection (c) of GS 29-30 extends the time period for a surviving spouse to petition for an elective share under Article 1A of GS Chapter 30. Provides for service of the petition in accordance with GS 1A-1, Rule 4. Makes conforming changes replacing notice of election with the term petition. Provides that the rules of procedure relating to partition proceedings under GS Chapter 46 apply to the election and procedure to allot and set apart the life estate, except to the extent they would be inconsistent with the provisions of this section. Provides that a determination of the life estate under this section may be appealed in accordance with GS 1-301.3.
Amends GS 30-3.4 to provide that an elective share proceeding is an estate proceeding and is to be conducted under the procedures of Article 2 of GS Chapter 28A (was, an estate matter to be conducted under GS 1-301.3). Makes additional conforming changes.
Year’s Allowance. Amends GS 30-17 regarding surviving children who are entitled to an allowance to delete reference to the authority of the guardian or next friend acting on behalf of the child and replacing it with simply, guardian. Makes conforming changes to occurrences of the phrase guardian or next friend in GS Chapter 30. Current law provides that the clerk or on assignment by the clerk, the magistrate of the county in which administration was granted or the will was probated is to ascertain the value of the personal property from which the allowance is assigned. Provides for a right of appeal from the assignment by filing a copy of the assignment and a notice of appeal within 10 days after the assignment, and directs that the appeal is to be heard as provided in GS 1-301.2 at the next available session of superior court. Deletes provision requiring the appellant to file a copy of the assignment with the clerk and a statement of the appellant’s exceptions and declaring that the issues raised will be decided de novo.
Amends GS 30-27 to provide that a surviving spouse or child may apply to superior court after specified conditions are met and within one year after the decedent’s death to have a year’s support assigned at an amount other than prescribed in GS 30-15 (when spouse entitled to allowance) and GS 30-17 (when children entitled to an allowance). Provides for the nature of the proceedings (GS 30-28) requiring that application be by petition in a special proceeding before the clerk of superior court and specifies persons to be made parties to the special proceeding, including all known creditors, heirs, and devisees. Makes conforming changes to GS 30-29 replacing complaint with petition and plaintiff with petitioner. Provides that the clerk is to hear the matter and determine if the petitioner is entitled to the relief sought (GS 30-30). Provides that any judgment rendered in favor of the petitioner is subject to the same priority over other debts and claims against the estate as an allowance assigned under GS 30-15 or GS 30-17. Amends GS 30-31 to provide that the clerk may assign a value sufficient for the support of the petitioner to the petitioner. Amends GS 30-31.1 to require the petitioner to serve the clerk’s judgment on all other parties and requires the judgment to be filed in the estate file of the deceased. Provides that any aggrieved party may appeal the judgment under GS 1-301.2. Provides that if the judgment is not appealed that the judgment is to be executed. Makes additional conforming changes to Article 4 of GS Chapter 30.
Wills. Provides that GS 31-12 through GS 31-31.2 are recodified as Article 2A of GS Chapter 28A by Section 3 of this act. Amends GS 31-32 as follows. Changes the catch line to Filing of caveat (was, when and by whom caveat filed). Declares that if any person who is entitled to file a caveat is within the age of 18 years, or incompetent as defined in GS 35A-1101(7) or (8) (was, insane, or imprisoned) then that person may file a caveat within three years after the removal of the disability. Requires the caveat to be placed in the decedent’s estate file and directs the clerk of superior court (clerk) to give notice of the filing by making an entry on the page of the will book where the will is recorded that includes the date of the filing (this provision was previously codified in GS 31-37). Provides that if a will has been probated in solemn form under GS 28A-2A-7, any party that was properly served in that probate in solemn form is prohibited from filing a caveat.
Amends GS 31-33 as follows. Directs the clerk to transfer the cause to superior court upon the filing of a caveat. Requires service of the caveat on all interested parties in accordance with GS 1A-1, Rule 4 of the Rules of Civil Procedure (Rules), after which the caveator is responsible for causing notice of hearing to be served on all parties in accordance with Rule 5 of the Rules. Provides that at the alignment hearing, all of the interested parties who wish to be aligned are to appear in court and be aligned by the court as parties with the caveator or parties with the propounders of the will. Directs the judge to dismiss from the proceeding an interested party who does not appear to be aligned or chooses not to be aligned. Deletes provisions requiring that the caveator and all interested parties who wish to be aligned by the court as parties in the action to file bond as directed by the court. Provides that the court, upon motion of an aligned party, may require a caveator to provide security in an amount determined by the court. Provides that the court is to consider relevant facts related to the need for a bond and the amount of any bond. Permits any interested party who was aligned to file a responsive pleading to caveat within 30 days following the entry of an order aligning the parties. Provides that failure to respond to any claim or averment of the caveat is not deemed to be an admission. Provides that an extension of time to file a responsive pleading may be granted as provided by Rule 6 of the Rules.
Current law provides that questions regarding the use, location, and disposition of assets that cannot be resolved by the parties are to be decided by the clerk. Amends GS 31-36 to provide that decisions of the clerk may be appealed to superior court pursuant to GS 1-301.3.
Amends GS 31-37.1 to clarify that a settlement agreement entered into by the parties must be approved by the superior court and the judgment entered by the court. Provides that the consent of parties that are not aligned as prescribed in GS 31-33 is not necessary for a settlement agreement under this section. Requires the clerk to file a copy of the judgment entered by the superior court in a caveat proceeding in the estate file and to make an entry on the page of the will book where the will is recorded declaring that the final judgment has been entered either sustaining or setting aside the will (was, contested will) (this provision was previously codified in GS 31-37).
Makes conforming changes deleting GS 31-34 and GS 31-37.
Amends GS Chapter 31A by enacting new GS 31A-16 to provide that any controversies arising under GS Chapter 31A are to be determined as estate proceedings under GS 28A-2-4; however, nothing in this Chapter affects the right of a person to file an action for declaratory relief under Article 26 of GS Chapter 1.
Current law provides a fiduciary may institute a proceeding for review of renunciation. Amends GS 31B-1.2 to provide that if the fiduciary is a trustee, the proceeding is governed by GS Chapter 36C; however, if the fiduciary is a personal representative, then the proceeding is governed by GS Chapter 28A.
Amends GS 32A-20(b) to provide that a health care power of attorney is effective following the death of the person granting the authority (principal) without regard to the principal’s understanding or capacity when the principal was living for the purpose of exercising the authority described in GS 32A-19(b), which provides that a health care power of attorney may authorize the health care agent to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of remains.
Amends GS 36C-2-205(d) to delete restriction that extensions of time not be granted more than once under Article 2 (Judicial Proceedings) of GS Chapter 36C and to provide that the court may enlarge an extension of time beyond 10 days if the court finds that justice requires that the time be extended beyond that time.
Amends GS 36C-2-205(e) to add Rules 4, 56, and 65 to the list of Rules of Civil Procedure that apply to trust proceedings unless the clerk directs otherwise. Provides that the clerk may direct that any or all of the remaining Rules of Civil Procedure apply, including discovery rules.
Amends GS 36C-6-604 to provide that the notice informing a person of the existence of a trust must be written notice pursuant to GS 1A-1, Rule 14 of the Rules of Civil Procedure.
Makes additional conforming and technical changes.
Effective January 1, 2012, and applies to estates of decedents dying on or after that date.