Legal Question in Intellectual Property in North Carolina

how to apply for executor of a friend that didn't have a will? also there is a man here from Hawaii claiming he is next of kin but he has no prove that he is kin. can he claim the executor ?

Asked on 11/07/13, 12:33 pm

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The preference is as follows in the statute below, NC Gen. Stat. 28A-4-1.

You are a friend, not next of kin. I don't know that next of kin needs to "prove" anything. Certainly not to you.

But how is the man from Hawaii claiming anything? Non-residents can be appointed as personal representatives but only if they find someone in NC to serve as a resident agent for service of process. This person is going to have a difficult time with that.

The question is not whether this person can be a personal representative. Anyone can. The question is where is this case at procedurally? Has anyone filed for letters of administration and sought to become personal representative? If so, then anyone else can contest this in writing. The clerk then schedules a hearing and makes a decision as per the process in statute NC Gen. Stat. 28A-6-4, which is also below.

Why do you want to be personal representative? You are not going to get anything out of this other than a commission. So why do you care if someone from Hawaii serves? Was the friend wealthy? Did he have lots of assets? What about debts?

If the friend had more debts than assets then being a personal representative is going to be a headache for you. Your task, if you are appointed as personal representative, will be to figure out what your friend owned and owed, pay any just debts, and transfer whatever is left to your friend's intestate heirs. The intestate heirs, if your friend had no spouse, children or lineal descendants (grandchildren, great-grandchildren and so on) will be to look to the friend's parents. If the parents are dead, then to see if your friend had any brothers or sisters. If they are dead, then to look and see if they had any child (nieces and nephews of your friend). There is a NC statute that provides for looking for relatives but eventually there is a cut-off point. I don't know how this person in Hawaii is related or if he is inside or outside the degrees of kinship. If he is outside then he gets nothing. If he is inside and if their are no other intestate heirs he may get it all. Either way, the assets will not be going to you because you are not among the intestate heirs. So I am not sure why you want to interject yourself in this mess. If your friend wanted things to go to you, your friend would have made a will and provided for it.

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NC Gen. Stat. 28A-4-1. Order of persons qualified to serve.

(b) 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;

(3a) Any next of kin, with a person who is of a closer kinship as computed pursuant to G.S. 104A-1 having priority;

(4) Any creditor to whom the decedent became obligated prior to the decedent's death;

(5) Any person of good character residing in the county who applies therefor; and

(6) Any other person of good character not disqualified under 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.

(c) 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.

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NC Gen. Stat. 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.

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11/07/13, 5:13 pm

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