Legal Question in Wills and Trusts in North Carolina

I live in North Carolina and my father passed away in September 2011. There was no will so I was made heir to his property and have paperwork stating such in December of the same year. His girlfriend at the time of his death whom lived with him still has possesion of some of his property and ignores my attempts at collection these items. Because of the time that has passed what rights do I have to rest of my fathers possesions and what actions can I take to get the matter resolved?

Asked on 9/06/12, 11:09 am

1 Answer from Attorneys

When someone dies with a will, that is called intestacy. Given the facts, I assume that your father was not married and did not have a spouse. If you were the only child, then you would be his heir. Was an estate ever probated by you? For very small estates, there is a procedure for collection of assets and debts (where the estate is under $20,000 if the estate is in NC). If over, then you have to go through regular probate.

You do not indicate where your father lived at the time of his death. What I suggest is that if this is in NC, go and talk with the probate court clerk. They have the forms for either a petition for probate or an affidavit of collection. If this is out of state, then you should talk with a probate attorney in the county/state where your father resided.

While you do not need to hire a lawyer, the probate lawyer can advise you of your rights and responsiblities. If the girlfriend does not respond to the official court documents appointing you as administrator, then it may be necessary to have a probate attorney send her a nasty letter. If that does not work, then you can sue her on behalf of the estate. If she does not have much money, it would not be worth her while to litigate this unless she is trying to claim that your father "gave" this property to her prior to his death. That is why a letter from an attorney may help - it will flush out her potential arguments if she responds.

Exactly what types of personal property does she hold? If it has a title (like a car) in whose name is the title? If your father gave her a car and it is in his name, then just go and get it provided that the seizure can be accomplished without causing a ruckus. You don't want to be the next featured episode on Lizard Lick Towing.

If it is things that do not have a title, that will be more problematic. It will be your word against hers if she is claiming that your father gave her stuff - like a tv, lawn mower etc. In such case, I would definitely recommend that you talk it over with a probate litigation attorney first. You have to weigh the costs involved in a worst case scenario and you have to go to court versus the likelihood of success or achievement of a reasonable settlement. Litigation is very expensive - most people do not have tens of thousands to spend on lawyers. Is she able to mount a defense? Are you prepared to proceed to court and see it through to the end? That is something that you and the probate attorney will have to decide.

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Answered on 9/06/12, 3:49 pm

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