Short Answer

Yes. In North Carolina, you can use two tracks: (1) an estate proceeding before the Clerk of Superior Court to examine the suspected person and order return of specific property to the estate, and (2) a civil action in Superior Court for money damages, constructive trust, and other relief. The personal representative or any interested person may start the estate proceeding; claims for monetary damages must be filed in Superior Court.

Understanding the Problem

In North Carolina probate, the core question is: can you make someone who used a power of attorney to divert assets give them back to the estate? Here, the surviving parent is the administrator, but a sibling used a short-form power of attorney to change beneficiaries and withdraw funds. You want relief that gets assets back into the estate for proper administration.

Apply the Law

North Carolina law provides a targeted estate proceeding to identify and recover property that belongs to the estate and is in someone else’s hands. It also provides a power-of-attorney remedy to compel an accounting, suspend or remove an agent, and order restoration of misused assets. The Clerk of Superior Court hears the estate proceeding and certain power-of-attorney matters; claims for damages (like breach of fiduciary duty or fraud) are filed in Superior Court. A case can be transferred from the clerk to Superior Court on proper notice. Power of attorney authority ends at the principal’s death, but pre-death misuse can be addressed by the personal representative after death.

Key Requirements

• Standing: A personal representative or any interested person may petition to examine a person believed to hold estate property and seek its recovery.
• Identify estate property and holder: You must reasonably believe the respondent has specific property that belongs to the estate.
• Verified petition and hearing: File a sworn petition with the Clerk of Superior Court; the clerk can order delivery of property to the estate and enforce the order by contempt.
• Accounting and POA remedies: You may ask the clerk to compel the agent’s accounting, suspend or remove the agent, and order restoration or tracing of assets.
• Damages and deed/beneficiary challenges: For money damages, to set aside fraudulent transfers, or to impose a constructive trust beyond simple return of property, file a civil action in Superior Court; the clerk cannot award damages.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-15-12 (Recovering estate property) – Lets a personal representative or interested person examine a holder of estate property and seek its return; also allows a civil action in Superior Court.
• North Carolina Gen. Stat. § 28A-2-4 (Clerk’s jurisdiction; transfers) – Sets the clerk’s jurisdiction over estate proceedings and how matters can be transferred to Superior Court.
• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief re: powers of attorney) – Allows petitions to compel an agent’s accounting and to limit/suspend/remove the agent.
• North Carolina Gen. Stat. § 32C-1-117 (Agent’s liability and remedies) – Authorizes courts to order restoration of property, disgorgement of profits, constructive trusts, tracing, and other relief for POA misuse.

Analysis

Apply the Rule to the Facts: Because the sibling allegedly used a power of attorney to change beneficiaries and withdraw funds, the personal representative or any interested heir can petition the clerk to examine the sibling and demand return of specific estate assets. If the administrator is compromised, an interested person may file the petition directly. Where funds were diverted or a deed was fraudulently recorded, you can pursue a Superior Court action for damages, constructive trust, and to void improper transfers, while also seeking a POA accounting and restoration orders.

Process & Timing

1. Who files: Personal representative or any interested person. Where: Clerk of Superior Court in the county where the estate is pending. What: A verified petition to examine a person believed to hold estate property and to recover it (no statewide AOC form), and, if needed, a petition under the power-of-attorney statute to compel an accounting and seek restoration. When: File as soon as misuse is suspected; if a party wants transfer to Superior Court, serve a notice of transfer within 30 days after service of the pleading requesting relief.
2. Hearing before the clerk: Respondents are served under Rule 4; the clerk can order delivery of identified property to the personal representative and compel compliance by contempt. County scheduling practices vary.
3. Parallel or follow-on civil action: For money damages, to set aside a fraudulent deed, to impose a constructive trust, or to obtain injunctions or lis pendens, file a civil action in Superior Court. Expect standard civil timelines and discovery.

Exceptions & Pitfalls

• The clerk cannot award monetary damages; seek damages and deed/beneficiary challenges in Superior Court.
• If property was sold to a good-faith purchaser without notice, recovery of the specific asset may be limited; pursue value from the wrongdoer.
• Power-of-attorney “hot powers” (like gifting or changing beneficiaries) require clear authority; absent that, the transactions are vulnerable. Gather the signed POA and account records early.
• Serve respondents properly and include specific property details; vague petitions are easier to deny or delay.
• Deadlines and transfer rules are technical; missing the 30-day transfer window can lock the matter in the clerk’s forum.

Talk to a Probate Attorney

If you’re dealing with estate assets diverted through misuse of a power of attorney, 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.