Probate Q&A Series

How can I contest a power of attorney that was used to transfer my mother’s assets after she died? – North Carolina

Short Answer

In North Carolina, a financial power of attorney ends at the principal’s death, so an agent cannot lawfully use it to transfer property after death. To challenge suspect transfers, open your mother’s estate, ask the Clerk of Superior Court to order the return of estate property, and, if needed, file a Superior Court case to unwind deeds, trace assets, and seek damages for breach of fiduciary duty and fraud. Deadlines for related claims can be short, so act promptly.

Understanding the Problem

You want to know if you can challenge, in North Carolina probate, a recorded power of attorney that a relative used to transfer or sell your mother’s assets after she died. You suspect signatures were forged. The immediate goal is to stop further transfers, identify what moved, and get property or value back into your mother’s estate.

Apply the Law

Under North Carolina law, a power of attorney is not effective after death. An agent owes duties of loyalty and good faith and may be required to account for transactions. If an agent exceeded authority, acted under a void power (because the principal had died), engaged in undue influence, or used forged documents, courts can order an accounting, void improper transfers, require return of property to the estate, or impose a constructive trust. The Clerk of Superior Court can hear estate proceedings to examine persons believed to hold estate property and order its return; the Superior Court hears civil claims for damages and to set aside recorded instruments. Fraud-related claims often carry a three-year limitations period that can run from discovery.

Key Requirements

  • Termination at death: A power of attorney ends when the principal dies; post-death use is invalid.
  • Agent’s duties and limits: The agent must act in the principal’s best interests and within the document’s authority; self-dealing and unauthorized gifts can be challenged.
  • Estate recovery tool: A verified estate petition can compel examination of a person holding estate property and order its return.
  • Forum matters: The Clerk of Superior Court can order return of property; the Superior Court is required for money damages and to unwind deeds.
  • Timeliness: Fraud-based claims may be subject to a three-year statute of limitations from discovery; other time limits vary by claim.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Because a power of attorney ends at death, any transfer your relative made after your mother died using that document is invalid and can be challenged. If transfers occurred before death, you can still contest them if the agent exceeded authority, breached duties, or if signatures were forged. Open the estate, use an estate proceeding to identify and recover property in the relative’s possession, and bring a Superior Court action to set aside deeds, trace investments, and seek damages as needed.

Process & Timing

  1. Who files: You (as an heir) or, preferably, the personal representative. Where: Clerk of Superior Court (Estates Division) in the North Carolina county where your mother was domiciled. What: File an Application for Letters of Administration (AOC‑E‑202) to open the estate; then file a verified petition to recover estate property under § 28A‑15‑12(b1) (no statewide AOC form). When: As soon as practicable; fraud and related claims may be limited to three years from discovery.
  2. At the estate hearing, the Clerk can order the respondent to produce records, answer questions, and return property that belongs to the estate; hearings often occur within weeks to a few months, with local timing varying by county.
  3. If deeds must be unwound or money damages are needed, file a civil action in Superior Court to set aside forged or unauthorized deeds, impose a constructive trust, and seek damages for breach of fiduciary duty, conversion, and fraud. Expect additional discovery and a court order or judgment addressing title and recovery.

Exceptions & Pitfalls

  • Bona fide purchaser issue: If the property was sold to an innocent buyer for value, title challenges are harder; remedies may shift to money damages against the wrongdoer and tracing proceeds.
  • Clerk’s limits: The Clerk can order return of estate property but cannot award monetary damages; damages and deed cancellation require a Superior Court case.
  • Standing and strategy: An “interested person” can start the estate recovery process, but qualifying as personal representative strengthens authority to collect and manage returned assets.
  • Service and notices: Proper service is required; if a respondent has not appeared, courts may require Servicemembers Civil Relief Act affidavits before entering orders.
  • Nonprobate assets: Joint or beneficiary‑designated accounts may pass outside probate; you may still challenge transactions the agent made before death or seek limited clawback where law allows.

Conclusion

In North Carolina, a power of attorney cannot be used after death. To contest suspect transfers, open your mother’s estate, file a verified petition with the Clerk of Superior Court to examine the relative and recover estate property, and pursue a Superior Court action to set aside forged or unauthorized deeds and seek damages. Act promptly—fraud claims may be limited to three years from discovery. Next step: file for Letters of Administration and a recovery petition with the Clerk.

Talk to a Probate Attorney

If you’re dealing with disputed transfers under a power of attorney and missing estate assets, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

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.