Estate Litigation

What is ESTATE LITIGATION?

If the handling of the estate administration is the problem. This includes mismanagement of assets, failing to file accountings with the Clerk of Court, withholding distributions to heirs, failing to protect estate assets, taking unapproved administrator commissions, and giving assets to the wrong persons.

What happens when a beneficiary or third party hides the estate’s assets?

We bring a petition to examine assets. The court can order a beneficiary or third parties to return assets to the personal representative.

  • Probating a Copy of Lost Will

What happens when someone destroys the testators will or trust?

You can file a petition to probate a lost copy of the will or the trust. There needs to be proof the will was executed and proof the testator did not knowingly destroy the will. The Clerk has exclusive jurisdiction GS 28A-2-4. An application for probate (Form E-201) needs to be filed. Affidavits of witnesses to the will are helpful. The person applying should be either a beneficiary or named executor of that lost will.

  • Last Will & Testament Declaratory Judgment

What if the Will is not clear how to administer or distribute the estate?

You can file a declaratory judgment for the court to judicially determine how to interpret the will, how to administer the estate, who is in a class of beneficiaries, who gets title to real property, or whether there is a trust in the will or not. These are one of many examples of a declaratory judgment. The purpose under NC law is to determine the rights and status in a controversy between parties once and for all. Declaratory Judgments are part of Chapter 1, Article 26, starting with §1-253 (see NC General Statutes https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_1/Article_26.pdf )

  • Executor Removal or Revocation of Letters of Personal Representative

Can you remove an executor?

Yes but you need reasons for the removal action before the clerk, including:

  • Self dealing
  • Failure to comply with the terms of the will
  • Mismanagement of the assets
  • Failure to file inventories
  • Failure of co-executors to work together
  • Executor is insolvent, incapacitated, fails to act
  • Executor takes excessive fees,
  • Breach of fiduciary duty
  • Stealing funds
  • See NCGS §28A-9-1, §9-2, §9-5, §20-2, §21-4

What to do if the Executor does not follow the Will?

File a petition to remove the executor or file a petition requiring the executor to comply with the terms of the will.

What if the Executor is stealing from the estate?

If there is misappropriation, then you need to file a petition to remove the executor and revoke their letters. NCGS §28A-9-1, 9-2, 9-5, 20-2, 21-4 describe the grounds. Typically it is done at a hearing before the clerk. But there are also summary revocations by the clerk. Summary revocation would occur if the will was set aside, a nonresident personal representative fails to obey a clerk’s citation, or the executor/administrator fails to file an inventory or annual account and the executor/administrator can’t be found. Revocation is the exclusive jurisdiction of the clerk. 28A-2-4.

We’ve litigated these cases, including Petition to Probate a Lost Will, Petition for the Discovery of Assets, Demands for accountings, removal of executors or administrators.

What is an ELECTIVE SHARE?

Elective share cases occur where a surviving spouse is written out of a will or inherited too small an amount. Only spouses have a legal right to inherit from a dead person.

Depending on the number of years the couple was married, the surviving spouse can elect to take a percentage of the deceased spouse’s Total Net Assets. Total Net Assets (TNA) include assets that passed outside the estate, such as Paid on Death accounts and life insurance policies. By example, NCGS 30-3.1 entitles the surviving spouse to a share of the TNA as follows:

  • If married less than 5 years, the Surviving Spouse’s share is 15% of the Total Net Assets
  • If married 5 to 10 years, then the share is 25% of the Total Net Assets
  • If married 10 to 15 years, then the share is 33% of the Total Net Assets, and
  • If married more than 15 years, then the share is 50% of the of the Total Net Assets

Take note, the TIME to file an elective actions is very short. It must be filed within 6 months of the probate being started with the Clerk. Don’t delay filing this litigation and serving the proper parties.

For more information on Elective Share claims, see our site: www.willcaveat.com/elective-share-spouses-estates-nc-attorney/

Call Kirk Sanders to discuss your estate litigation or will caveat case at 336-768-1515