Jan162026
Probate Q&A Series

If a relative drained an account that should have gone to the estate, how can that money be recovered and used to pay estate expenses like taxes and upkeep? – North Carolina

Short Answer

In North Carolina, the estate’s administrator can often pursue recovery by asking the Clerk of Superior Court to order the person holding estate property to appear, be examined, and turn the property over to the estate. If the money is already gone or the dispute is more complex, the administrator may need to file a civil lawsuit in Superior Court to obtain a money judgment and then collect it. Once recovered, the funds become estate assets that can be used to pay proper estate expenses, including taxes and necessary upkeep, in the normal administration process.

Understanding the Problem

In North Carolina probate, the key question is whether a personal representative (an administrator or executor) can require a relative to return money that belonged to the decedent’s estate so the estate can move forward and pay estate expenses. The usual trigger is that an account was emptied or controlled by someone other than the personal representative after the death, and the estate now lacks cash to handle required tasks like gathering tax records, filing tax returns, and maintaining property while the estate remains open. The focus is on recovering the estate’s money through the probate system (or a related court case) so the estate administration can proceed.

Apply the Law

North Carolina law places responsibility on the personal representative to locate, collect, and preserve estate assets and to settle the estate as efficiently as is reasonable under the circumstances. When a third party is believed to have estate property, North Carolina provides a probate-focused “discovery of assets” procedure that can be brought before the Clerk of Superior Court as an estate proceeding, including an examination of the person believed to be holding the property and an order requiring delivery to the estate. In other situations, the personal representative can file a civil action in Superior Court to recover the property or obtain a money judgment, and may seek court orders designed to preserve assets while the case is pending.

Key Requirements

  • Estate ownership (or estate entitlement) to the funds: The administrator must be able to show why the money should be treated as estate property (for example, it was a decedent-owned account, or funds were taken after death without authority).
  • Reasonable grounds to believe a specific person has (or had) the property: The probate “discovery of assets” process generally requires a sworn petition explaining why the administrator believes the person possesses estate property or controls information needed to recover it.
  • Proper forum and enforceable order: The administrator typically proceeds before the Clerk of Superior Court in an estate proceeding for examination/turnover, or files a civil lawsuit in Superior Court if a money judgment or stronger remedies are needed.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the administrator reports that the estate has stalled and that needed tax documents (including health insurance tax forms) cannot be obtained to complete tax filings and close the estate. If a relative drained an account that should have been available to the estate, that missing cash can prevent payment of taxes and ongoing expenses and can also make it harder to gather records. A practical first step is to identify the account, document the withdrawals/transfers, and then use the clerk-based discovery process (or a civil lawsuit if necessary) to compel information and recover the funds so they can be used for estate administration.

Process & Timing

  1. Who files: The estate’s personal representative (administrator). Where: Typically with the Clerk of Superior Court as an estate proceeding (and in some cases in Superior Court as a civil action). What: A verified (sworn) petition seeking examination and an order to deliver estate property, or a civil complaint seeking recovery and a money judgment. When: As soon as there are reasonable grounds to believe estate property is being held or has been taken, especially if tax filing deadlines or property upkeep costs are approaching.
  2. Hearing/examination: In the clerk-based process, the clerk can require the person believed to have the property to appear and be examined. If the clerk finds the person has estate property without a valid reason to keep it, the clerk can order delivery to the personal representative, and the order can be enforced through contempt proceedings.
  3. Collection and administration: If the money is returned (or collected after a judgment), it becomes an estate asset. The personal representative then applies it through the normal estate administration workflow—paying proper estate expenses and taxes, completing required accountings, and moving toward closing the estate.

Exceptions & Pitfalls

  • The account may not be an “estate account” under the title/beneficiary designation: Some accounts pass outside probate (for example, certain survivorship or payable-on-death arrangements). Even then, North Carolina law may allow recovery in limited situations, but the legal theory and proof can be more technical.
  • If the money has already been spent or moved: The clerk-based “turn over the property” approach may be less effective if the person no longer possesses the funds. A civil lawsuit seeking a money judgment (and possibly court orders to preserve assets) may be necessary.
  • Proof problems: Missing statements, unclear authority (like a power of attorney), or commingled funds can slow recovery. Early steps often include obtaining bank records, documenting the timeline of withdrawals, and identifying where the funds went.
  • Procedure and notice issues: Estate proceedings have specific filing and service requirements, and contested matters can be transferred or appealed. Mistakes can cause delay—exactly what an administrator is usually trying to avoid when taxes and upkeep are due.

Conclusion

In North Carolina, an administrator can often recover money taken from an account that should have been available to the estate by filing a sworn “discovery of assets” proceeding with the Clerk of Superior Court or, when needed, by filing a civil lawsuit in Superior Court to obtain and collect a judgment. Once recovered, the funds become estate assets that can be used to pay proper estate expenses, including taxes and necessary upkeep. The next step is to file a verified petition under N.C. Gen. Stat. § 28A-15-12 seeking examination and turnover.

Talk to a Probate Attorney

If a relative drained an account and the estate now cannot pay taxes, maintain property, or gather the documents needed to close the estate, our firm has experienced attorneys who can help explain the options and timelines for recovering estate assets in North Carolina. 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.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.