NCGS-29-19 State's I can't claim my father probate because he didn't need the court to tell him to take care of his children.My dad lived with us until we were grown and he and my mother never married. I can't see how this is still on the books I need to know what can I do! ASAP. They said DNA, Name on Birth Cert. Didn't Matter! What kind of law is this! My mother never took child support out on my dad. We never went to court or recieved any benfits from the state to take care of us. He was a good man. And theirs no will he died sudduly.(60)
1 Answer from Attorneys
Your are going to have to establish paternity through a DNA test. Your father should have made a will if he did not want this. You do not indicate when your father died or what assets he had.
Whether you agree with the law or not that is the law we have. Illegitimate children cannot inherit from their father absent a timely paternity determination. See the statute below:
� 49‑14. Civil action to establish paternity; motion to set aside paternity.
(a) The paternity of a child born out of wedlock may be established by civil action at any time prior to such child's eighteenth birthday. A copy of a certificate of birth of the child shall be attached to the complaint. The establishment of paternity shall not have the effect of legitimation. The social security numbers, if known, of the minor child's parents shall be placed in the record of the proceeding.
(b) Proof of paternity pursuant to this section shall be by clear, cogent, and convincing evidence.
(c) No such action shall be commenced nor judgment entered after the death of the putative father, unless the action is commenced either:
(1) Prior to the death of the putative father;
(2) Within one year after the date of death of the putative father, if a proceeding for administration of the estate of the putative father has not been commenced within one year of his death; or
(3) Within the period specified in G.S. 28A‑19‑3(a) for presentation of claims against an estate, if a proceeding for administration of the estate of the putative father has been commenced within one year of his death.
Any judgment under this subsection establishing a decedent to be the father of a child shall be entered nunc pro tunc to the day preceding the date of death of the father.
(d) If the action to establish paternity is brought more than three years after birth of a child or is brought after the death of the putative father, paternity shall not be established in a contested case without evidence from a blood or genetic marker test.
(e) Either party to an action to establish paternity may request that the case be tried at the first session of the court after the case is docketed, but the presiding judge, in his discretion, may first try any pending case in which the rights of the parties or the public demand it.
(f) When a determination of paternity is pending in a IV‑D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent's parentage is ninety‑seven percent (97%) or higher. If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order.
(g) Invoices for services rendered for pregnancy, childbirth, and blood or genetic testing are admissible as evidence without requiring third party foundation testimony and shall constitute prima facie evidence of the amounts incurred for the services or for testing on behalf of the child.
(h) Notwithstanding the time limitations of G.S. 1A‑1, Rule 60 of the North Carolina Rules of Civil Procedure, or any other provision of law, an order of paternity may be set aside by a trial court if each of the following applies:
(1) The paternity order was entered as the result of fraud, duress, mutual mistake, or excusable neglect.
(2) Genetic tests establish the putative father is not the biological father of the child.
The burden of proof in any motion to set aside an order of paternity shall be on the moving party. Upon proper motion alleging fraud, duress, mutual mistake, or excusable neglect, the court shall order the child's mother, the child whose parentage is at issue, and the putative father to submit to genetic paternity testing pursuant to G.S. 8‑50.1(b1). If the court determines, as a result of genetic testing, the putative father is not the biological father of the child and the order of paternity was entered as a result of fraud, duress, mutual mistake, or excusable neglect, the court may set aside the order of paternity. Nothing in this subsection shall be construed to affect the presumption of legitimacy where a child is born to a mother and the putative father during the course of a marriage.