Legal Question in Wills and Trusts in North Carolina

My mother died in 2009 in another state (NC) where my sister also lives. My sister took care of the probate process. At the time I was not interested in my mother's estate, but now I am. My question is: must a surviving child be notified that probate is going on even if that child is not a beneficiary?

Asked on 4/04/13, 1:50 pm

1 Answer from Attorneys

You don't provide relevant details. First, did your mother have a will? If so, were you a named beneficiary? Did your mother have probate assets? Have you checked the court file to see if the estate is still pending or closed or even if an estate was ever filed?

I would start by contacting the clerk of the county in which your mother lived at the time of her death and see if there is an estate file. If there is, get a copy of the complete file - you need the will, if any, the letters and court order appointing the personal representative, the preliminary and 90-day inventory, notice of publication to creditors and any accounting including the final one. Then you need to take the file to a probate attorney in NC and pay him/her to review the file.

There may have been no assets justifying probate. This can occur if your mother lived in a nursing home or with your sister and only had a joint bank account with your sister. Or your mother might have made a will leaving all to your sister as your sister may have cared for her.

The question is not whether you have to be notified. If there was no will then all heirs have to be notified. If there was a will, the beneficiaries are notified. I have set forth some of the relevant statutes for you.

Of course, if you were not notified, then the next question is why. Was there a will? Did your sister lie or falsify information? That is what review of the estate file will tell you.

28A‑2A‑3. Clerk to notify devisees of probate of wills.

The clerks of the superior court of the State are hereby required and directed to notify by mail, all devisees whose addresses are known, designated in wills filed for probate in their respective counties. All expense incident to such notification shall be deemed a proper charge in the administration of the respective estates.

28A‑2A‑5. What shown on application for probate.

On application to the clerk of the superior court, he must ascertain by affidavit of the applicant ‑

(1) That such applicant is the executor or devisee named in the will, or is some other person interested in the estate, and how so interested.

(2) The value and nature of the testator's property, as near as can be ascertained.

(3) The names and residences of all parties entitled to the testator's property, if known, or that the same on diligent inquiry cannot be discovered; which of the parties in interest are minors, and whether with or without guardians, and the names and residences of such guardians, if known.

Such affidavit shall be recorded with the will and the certificate of probate thereof, if the same is admitted to probate.

28A‑6‑1. Application for letters; grant of letters.

(a) The application for letters of administration or letters testamentary shall be in the form of an affidavit sworn to before an officer authorized to administer oaths, signed by the applicant or the applicant's attorney, which may be supported by other proof under oath in writing, all of which shall be recorded and filed by the clerk of superior court, and shall allege the following facts:

(1) The name, and to the extent known, the domicile and the date and place of death of the decedent;

(2) The legal residence and mailing address of the applicant;

(3) The names, ages and mailing addresses of the decedent's heirs and devisees, including the names and mailing addresses of the guardians of those having court‑appointed guardians, so far as all of these facts are known or can with reasonable diligence be ascertained;

(4) That the applicant is the person entitled to apply for letters, or that the applicant applies after persons having prior right to apply are shown to have renounced under Article 5 of this Chapter, or that the applicant applies subject to the provisions of G.S. 28A‑6‑2(1), and that the applicant is not disqualified under G.S. 28A‑4‑2.

28A‑6‑2. Letters issued without notice; exceptions.

Letters of administration or letters testamentary may be issued without notice, including upon a finding of implied renunciation under G.S. 28A‑5‑1(b) or G.S. 28A‑5‑2(b), except:

(1) When the applicant is not entitled to priority of appointment under G.S. 28A‑4‑1, all persons entitled to an equal or higher preference shall be given 15 days prior to written notice of that application, unless they have renounced in accordance with the provisions of Article 5 of this Chapter.

(2) The clerk of superior court may in any case require that prior written notice be given to such interested persons as the clerk, in the clerk's discretion, may designate prior to the granting of letters.

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Answered on 4/04/13, 7:39 pm

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