Short Answer

Yes, but the path matters. In North Carolina, money-damages claims for breach of fiduciary duty are filed as a civil lawsuit in Superior Court, not decided by the Clerk in the probate file. The Clerk of Superior Court oversees the estate, can compel accountings, order property turned over, and can surcharge a guardian; the estate’s administrator typically brings any lawsuit on the estate’s behalf. If your sister managed finances as guardian or agent, the estate can seek recovery, including from a guardian’s bond or by unwinding improper transfers.

Understanding the Problem

In North Carolina probate, can you pursue a breach of fiduciary duty claim against your sister related to estate assets? You are an heir, your mother died without a will, and your sister controlled finances under a court‑ordered guardianship before death. You want to know whether, and where, you can bring that claim as part of the estate administration.

Apply the Law

Under North Carolina law, the Clerk of Superior Court has original authority over administering estates. However, claims seeking money damages (like breach of fiduciary duty, fraud, or negligence) must be brought as a civil action in Superior Court. Typically, the personal representative (administrator in an intestate estate) brings claims on behalf of the estate. A guardian or an agent under a power of attorney owes fiduciary duties, must keep records, and may be surcharged or required to restore property if they misuse assets. Payable‑on‑death or other nonprobate transfers can be challenged if created or changed in breach of a fiduciary duty, with courts able to impose remedies such as constructive trusts.

Key Requirements

• Proper party: The estate’s administrator generally has standing to sue for pre‑death misconduct that harmed the decedent or the estate; heirs usually cannot sue in their own names for those claims.
• Correct forum: Claims for money damages (breach of fiduciary duty) belong in Superior Court; the Clerk handles estate proceedings (accountings, turnover, surcharge, removal) but not tort damages.
• Fiduciary duty exists: A court‑appointed guardian (and, before revocation, any attorney‑in‑fact) owes duties of loyalty, prudence, and recordkeeping; self‑dealing and undisclosed conflicts are scrutinized.
• Breach and harm: Mismanagement, unauthorized transfers, or beneficiary/POD changes that benefit the fiduciary and harm the ward/principal or estate can constitute a breach causing damages.
• Available remedies: Courts can order repayment, restoration of property, constructive trusts on wrongfully diverted assets, suspension/removal of the fiduciary, and recovery against a guardian’s bond.

What the Statutes Say

• North Carolina Gen. Stat. § 28A‑2‑4 (Estate proceedings; clerk’s jurisdiction) – Clerk oversees estate matters but not actions for monetary damages like breach of fiduciary duty.
• North Carolina Gen. Stat. § 28A‑15‑12 (Discovery of assets) – Estate proceeding to examine a person believed to hold estate property and to order turnover.
• North Carolina Gen. Stat. § 32C‑1‑117 (Agent’s liability under powers of attorney) – Defines breaches, authorizes restoration of property, and lists remedies including constructive trust.
• North Carolina Gen. Stat. § 35A‑1234 (Actions on guardian bonds) – Allows recovery against a guardian’s surety for losses caused by breach.

Analysis

Apply the Rule to the Facts: Your sister controlled finances under a court‑ordered guardianship, so she owed fiduciary duties. Setting up POD accounts during that period that diverted value away from your mother’s estate could be a breach if unauthorized or self‑interested. Because your mother died intestate and no estate is open, an administrator should be appointed to act for the estate; that administrator can seek accountings and turnover before the Clerk and pursue a breach‑of‑fiduciary‑duty lawsuit in Superior Court to recover losses or unwind improper transfers.

Process & Timing

1. Who files: An interested heir. Where: Clerk of Superior Court in the county where your mother was domiciled. What: Application for Letters of Administration (AOC‑E‑202); bond may be required. When: If no one applies within 30 days, the Clerk may issue a notice; after 90 days, the Clerk can deem priority renounced and appoint any suitable person.
2. Once appointed, the administrator asks the Clerk to: (a) order your sister to account and produce records; (b) use the discovery‑of‑assets process to examine her and compel turnover of estate property; and (c) in the guardianship file, compel a final accounting and seek surcharge or a claim on the guardian’s bond if losses are shown. Timeframes vary by county, but examinations can be scheduled on relatively short notice once filed.
3. In parallel, the administrator files a civil complaint in Superior Court for breach of fiduciary duty and related equitable relief (e.g., constructive trust on POD proceeds). A judge can consolidate related estate and civil issues to avoid duplication. If successful, recovered assets are marshaled and distributed under intestacy after required notices and final accounting.

Exceptions & Pitfalls

• You cannot obtain money damages from the Clerk in the probate file; breach‑of‑fiduciary‑duty damages must be sought in Superior Court.
• Heirs rarely have direct standing to sue for pre‑death misconduct; get appointed as administrator or ask the court to require the administrator to act.
• POD and other nonprobate transfers are not estate assets unless you prove they were created or changed through a fiduciary breach; be ready to seek equitable remedies like constructive trust.
• If your sister seeks appointment as administrator, you can object based on conflict of interest or misconduct; ask for bond and oversight.
• Service, venue, and consolidation rules matter; procedures and deadlines can change, so act promptly to preserve claims.

Talk to a Probate Attorney

If you’re dealing with possible misuse of funds by a family fiduciary and need to open an estate and recover assets, our firm has experienced attorneys who can help you understand your options and timelines. Call us today to discuss your situation.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.