Category Archives: Probate Q&A Series

When is a partition action necessary in probate cases involving property held as tenants by the entirety?

When is a Partition Action Necessary in Probate Cases Involving Property Held as Tenants by the Entirety? Detailed Answer In North Carolina, married couples may hold real estate as tenants by the entirety. North Carolina General Statutes Chapter 41A governs this form of ownership. Under N.C. Gen. Stat. § 41A-1 (https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_41A/GS_41A-1.html), a tenancy by the…

Can a family member legally remove estate property before probate is finalized, and what steps can an administrator take to recover those assets?

Can a Family Member Legally Remove Estate Property Before Probate Is Finalized, and What Steps Can an Administrator Take to Recover Those Assets? Detailed Answer In North Carolina, probate begins when a personal representative (formerly called an executor) files the will and petition with the Clerk of Superior Court under N.C. Gen. Stat. § 28A-2-1.…

What steps must a surviving spouse take to resolve title issues and sell property when the deed remains solely in the deceased spouse’s name?

What steps must a surviving spouse take to resolve title issues and sell property when the deed remains solely in the deceased spouse’s name? Detailed Answer When a spouse dies leaving real estate solely in their name, the surviving spouse cannot transfer or sell that property until legal title moves from the decedent’s estate into…

Why does having no beneficiary on my retirement account require opening a North Carolina estate, and what tax implications should I expect?

Why does having no beneficiary on my retirement account require opening a North Carolina estate, and what tax implications should I expect? 1. Detailed Answer When an individual passes away without naming a beneficiary on a retirement account—such as an IRA, 401(k), or pension plan—the account custodian cannot transfer the assets directly to a person.…

Will a deposit be refunded if my case is transferred to a court-appointed administrator?

Will a deposit be refunded if my case is transferred to a court-appointed administrator? 1. Detailed Answer When you pay a deposit in a probate matter, it may serve one of two purposes: Attorney retainer: An advance on fees and out-of-pocket costs. Fiduciary bond deposit: Money or securities posted with the clerk instead of a…

How should a probate lawyer proceed when an estate administrator appears to have a conflict of interest that could compromise the heirs’ best interests?

How to Address an Administrator’s Conflict of Interest in North Carolina Probate 1. Detailed Answer When a personal representative (sometimes called an administrator) shows a conflict of interest, you must act promptly to protect the heirs and the estate. In North Carolina, personal representatives owe clear fiduciary duties under N.C. Gen. Stat. §28A-12-1. Those duties…

Can my mother legally add her new partner to our jointly held property deed, and what legal steps can I take to protect my interest in the property?

Can My Mother Add Her New Partner to Our Jointly Held Property Deed, and How Can I Protect My Interest? 1. Detailed Answer In North Carolina, any co-owner may transfer or convey only their own share of real estate. If you and your mother hold property as tenants in common (the most common form of…

How do I protect my rights and claim my elective share when a newly discovered will limits my inheritance?

How to Protect Your Rights and Claim Your Elective Share in North Carolina 1. Detailed Answer When a newly discovered will reduces the inheritance you expected, you can still safeguard your rights as a surviving spouse through North Carolina’s elective share statutes. Under N.C. Gen. Stat. § 30-3, you may elect to take a statutory…

Can a power of attorney obtain errors and omissions insurance to protect against legal liability in North Carolina?

Can a power of attorney obtain errors and omissions insurance to protect against legal liability in North Carolina? 1. Detailed Answer In North Carolina, a person serving as an agent under a power of attorney (often called an attorney-in-fact) owes strict fiduciary duties to the principal. These duties include acting in the principal’s best interest,…

How do I determine if a will has been filed with the probate division and what should I do if it hasn’t?

How do I determine if a will has been filed with the probate division and what should I do if it hasn’t? How to Check if a Will Has Been Filed in North Carolina When someone dies, their will may guide the distribution of assets. In North Carolina, the first step is to confirm whether…