Elder Law Report
Elder Law Report
Lost Wills, Found Heirs: Your Guide to NC Probate Court
Probate hearings rarely make for casual conversation, but they're a critical part of estate administration that can become surprisingly contentious. Join Jane Dearwester and Haley Matson from McIntyre Elder Law as they pull back the curtain on these often-misunderstood legal proceedings in North Carolina.
Most people assume probate is just paperwork and forms, but contested estates can involve numerous hearings before the clerk of court. Jane and Haley expertly break down the different categories of probate hearings you might encounter, from competing qualification disputes (who gets to serve as executor?) to heir determination hearings (who's legally entitled to inherit?). They explore petitions for possession and sale of real property, motions to remove executors who mishandle estate funds, and the fascinating 28A examinations that can compel disclosure from those hiding estate assets.
The conversation takes particularly interesting turns when discussing lost will hearings—especially relevant in Western North Carolina, which has suffered hurricanes and wildfires destroying important documents—and will caveats that challenge a will's validity based on lack of capacity or undue influence. One compelling example involves a "crooked pastor" who convinced a cognitively declining person to disinherit their entire family. Jane and Haley explain how they successfully had that will invalidated.
Perhaps most valuable is their explanation of North Carolina's spousal protections. Unlike some states, North Carolina doesn't allow complete disinheritance of spouses, providing statutory remedies through elective share (based on marriage length) and spousal allowance (the first $60,000 of the estate). Throughout their discussion, they emphasize how Chapter 28A of the North Carolina General Statutes creates a complex framework that isn't intuitive or straightforward—making professional legal representation essential when navigating these waters.
Want to learn more about protecting yourself and your loved ones from probate complications? Visit mcelderlaw.com to explore their blogs and resources, or connect with their team at offices in Shelby, Charlotte, and Hendersonville.
Hi, I'm Jane Dearwester with McIntyre Elder Law and I'm here today with my colleague, Haley Matson to talk to y'all about probate hearings in North Carolina. Hi, Haley, hey Jane. Hey, we were just meeting before we hopped on here to record and it's really kind of incredible how many different types of hearings we can have in probate. A lot of times when we think about probate and estate administration process, it's very form-driven and it's very possible to go through an entire estate administration and not have to have any hearings. That's possible or very few. But if the estate is very highly and hotly contested, there are a lot of avenues where you will have to appear before a clerk. It is definitely in your best interest to be represented by counsel. So you know the rules.
Jane Dearwester:Chapter 28A of the North Carolina General Statutes governs probate and most of estate administration and it's not intuitive or straightforward. It is very specific, the timelines are very specific, the types of relief that you can seek are very specific as far as who can bring this petition and in what capacity. So you really are best served to speak with one of our attorneys here at McIntyre Elder Law if you're dealing with a contested estate and you know you're going to have to show up at a probate hearing. So we're going to talk about a few different groups of types of hearings and I'm going to start talking about competing qualifications. So if someone submits an application to qualify as administrator or executor of an estate, there may be other parties who either just don't want that person to be in charge, or they want to be in charge, or maybe they want a disinterested third party, a public administrator.
Jane Dearwester:Each county will have a public administrator. So sometimes if the parties are extremely adverse, or no one is within the state or nobody is really capable or willing to serve as the executor or administrator of the estate, you may have to have a hearing or move the court to appoint a public administrator. And people can really duke it out at those hearings as far as who is the appropriate person to serve in this fiduciary capacity to administer the estate. There are very specific qualifications for the type of person. Right, this has to be a very responsible person, trustworthy person, because they're dealing with somebody else's money. I'm going to let Haley talk about our next group of potential hearings in probate and we kind of group these together as airship determination or claims disputes Ideas that would come next in the process.
Haley Matson:Yeah, so in probate creditors can actually make claims on any of the assets in the estate and sometimes creditors will have competing claims and so during this they can have a hearing before a clerk and talk about those claims and figure out which claims have priority Right. Similarly, there's a lot of estates where there are undeterminable heirs or there's lost heirs or people are coming out of the woodwork. So you can also go to a hearing for heir determination where they bring out a bunch of statutes on who is a legitimate and an illegitimate child. It's heard before the clerk and sometimes those can get pretty crazy as well, yeah.
Jane Dearwester:Sometimes they're unknown. There may be years that are undetermined, that are maybe way down the chain. So yeah, those can definitely be interesting. For sure. Ever a dull moment at probate.
Haley Matson:I know. So we will talk about our third grouping now. I think Jane will take it over with her pretty disbursed petition for 28A.
Jane Dearwester:Yeah, different petitions. There are a variety of different petitions, so we've just highlighted a few. A very common one that we do very often are petitions for possession, custody, control and sale of real property. So when someone passes away, real property vests in the heirs unless there's something in the will to the contrary. So it doesn't vest in the estate but the the real property interest vests immediately in the heirs. However, if there are claims in the estate, the executor has the ability to bring the real estate back into the estate to sell it, to pay creditors. So, as you can imagine, that can get very contentious, having to bring the property in and sell, but we do it very often.
Jane Dearwester:There also can be petitions to remove an executor. So an executor that has been appointed and has started doing the work needed to move the estate forward. If they are in breach of their fiduciary duty, if they're not doing what they're supposed to be doing, if they're using the estate bank account as their own personal piggy bank, if they are getting rid of assets and not telling anybody or not following the rules, for whatever reason, you can bring a petition to remove the executor. And again, that's before the clerk. Again, if there are other unusual things happening within the estate administration.
Jane Dearwester:You can bring a motion for a 28A examination under the statute for any party that may have knowledge or control over estate assets, to haul them in before the court and before the clerk and have a full on. It's really a deposition on the record before the clerk, where the clerk can also ask this person questions about where are the assets, what have you been doing with those assets? And the court can thereafter enter an order ordering the executor to produce the assets, to produce accountings, to produce bank statements, anything and everything again to make sure they're safeguarding the assets of the person who's deceased. So there are a lot of different petitions that can kind of come in the middle. Those are kind of the ones we identified as maybe some of the most common or the ones that we deal with.
Haley Matson:Some other stuff that we deal with fairly frequently is going to be lost wills. In probate court they really want the original signed copy of the will. If you do not have the original, you're going to have to go through a lost will hearing. It's the same process whether or not it's a copy of a will or it's actually a lost will. You're going to have to go in front of the clerk, have a hearing. You might need to bring witnesses proof copy of the will. You need to show them that you've done a diligent search. Nobody can find it. You might have to pull people who could have been there or knew what the person wanted. So we can do those hearings as well.
Haley Matson:Caveats are also another thing. So this is usually for people who disagree with a will. So this is going to be any contest to the contents of the will or how the assets are going to be distributed. So this is also heard in front of the clerk, but it does move to superior court after it gets filed. But it does move to superior court after it gets filed. They hear it in superior court and then, after everything is finished and they've decided, it gets kicked back to probate court.
Jane Dearwester:Yeah, caveats are really unique type of action. That kind of goes between practice and superior court and we do a lot of will caveats. Usually those are brought on the basis of lack of testamentary capacity, that the person didn't know what they were doing when they signed the will, or also and or undue influence, that there was somebody really exerting influence over someone who was susceptible to that influence, maybe suffering from cognitive decline, and someone in the family or outside the family had one with a crooked pastor that said, hey, leave me everything and disinherit your entire family. And unfortunately the person did disinherit their entire family in favor of this crooked pastor. But we got that case and that will set aside as being invalid and a product of undue influence.
Jane Dearwester:The last kind of grouping of probate hearings we're going to talk about, or sections, are elective share and spousal allowance. These are both statutory remedies particularly available to a surviving spouse. So North Carolina is a state where you cannot disinherit your spouse because our laws on the books provide protection for spouses, and elective share in particular. It depends on how long you've been married as far as how much or what percentage of the estate you're going to share in. Spousal allowance across the board is the first $60,000 for the surviving spouse, but elective share differs again depending on the length of the marriage. And again both of those can be contested, can be subject to hearings before the clerk of court. And again, you are best served to be represented by counsel at any of these hearings. And Haley and I said before we got on we could do a recording on each one of these individually. So we know we're throwing a lot of information at you here, but just want to let you know there are a lot of different types of hearings that come up in probate. Well, thank you for joining me today, haley. Another resource please check out our blogs on the website mcelderlawcom. I just wrote a blog last month about lost wills. So that is on there here.
Jane Dearwester:Here in Western North Carolina I work in our Hendersonville office. Unfortunately, we have been the victim of multiple natural disasters over the past year. We had Hurricane Helene come through last fall and then this spring we had tens of thousands of acres of wildfires where a lot of homes were lost, lives were lost. So we would like to tap out of further natural disasters for the rest of this year and for the rest of time. Thank you very much, but we do have a lot of clients and potential clients who've been asking about what happens if I lose my documents. So that goes for any of these topics. Please check out our website and our blogs and other video recordings for more information and if any of you are dealing with probate or any contested probate, please give us a call. We have offices in Shelby, charlotte and Hendersonville and we look forward to meeting you. And thanks again, haley, we'll see you soon. Thanks, jane.