Oct312025
Probate Q&A Series

Can I account for items my spouse gave away shortly before passing? – North Carolina

Short Answer

Usually no. The North Carolina inventory lists only what the decedent owned at death. But if a near-death transfer was a gift made in contemplation of death, was intended to defeat creditors, or reduces a surviving spouse’s elective share, the personal representative may seek to recover it for limited purposes. Timing and forum matter, and some items that pass outside probate can still be reached to pay valid claims.

Understanding the Problem

You are the surviving spouse and personal representative in North Carolina. You are preparing the estate’s inventory and want to know whether you can include property your spouse gave away shortly before death. The decision turns on what the decedent legally owned at death, whether the estate needs assets to pay claims, and whether you, as the surviving spouse, will seek an elective share.

Apply the Law

In North Carolina, the 90-day inventory lists the decedent’s assets as of the date of death, valued at fair market value. Completed lifetime gifts are not inventory assets. However, the personal representative can pursue certain pre-death transfers if needed to pay claims, and a surviving spouse’s elective share calculation may count some pre-death transfers even though they are not probate assets. Disputes over possession or recovery can be brought before the Clerk of Superior Court or in superior court.

Key Requirements

  • Owned at death: List only property the decedent owned when they died; value as of date of death on the 90-day inventory.
  • Completed gift test: A lifetime gift generally removes the item from the estate if there was intent to give, delivery, and acceptance.
  • Recovery to pay claims: The personal representative may recover certain transfers (for example, gifts made in contemplation of death, some survivorship funds) if the estate needs assets to pay lawful debts and claims.
  • Proceeding to recover: Use a verified estate proceeding before the Clerk to examine holders and seek return of estate property, or file a civil action in superior court if injunctions or broader remedies are needed.
  • Elective share overlay: A surviving spouse’s elective share can include certain property the decedent transferred shortly before death; the petition must be filed within six months of issuance of letters.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Because you are in the inventory phase, list only what your spouse owned at death. For bank accounts, confirm whether any were solely owned or held with right of survivorship; survivorship funds generally pass outside probate but may be reachable to pay claims if the estate is short. Your DMV title history will show whether vehicles were still owned at death; if a vehicle was validly gifted and retitled before death, it is not an inventory asset. Personal items like firearms, boats, and gear belong on the inventory only if still owned at death; if they were validly gifted, keep documentation, and consider recovery only if claims require it.

Process & Timing

  1. Who files: Personal representative. Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: File the 90‑day Inventory for Decedent’s Estate (AOC‑E‑505). When: Within three months of qualification; request a short extension if needed.
  2. If you believe a near‑death transfer should be recovered to pay claims, file a verified petition to recover property with the Clerk under § 28A‑15‑12 (estate proceeding). If you need injunctive relief (for example, to freeze funds), file a civil action in superior court under the same statute.
  3. If you intend to pursue your spousal elective share because gifts reduced your inheritance, file a petition for elective share in the same county estate file; the deadline is six months after letters issue. Continue with annual/final accounting (AOC‑E‑506) as required.

Exceptions & Pitfalls

  • Completed lifetime gifts are not inventory assets; do not overstate the inventory. Use a supplemental inventory if you later discover assets or need to correct values.
  • Gifts made in contemplation of imminent death (gifts causa mortis) and certain survivorship funds can be reached to pay claims if the estate is short; recovery beyond paying claims is limited.
  • Transfers intended to hinder or delay creditors may be recoverable; a civil action may be needed to obtain injunctions or a money judgment.
  • Advancements apply only in intestate estates and typically offset the recipient’s share rather than forcing a return; proof requirements apply.
  • Vehicles and titled items: verify ownership and survivorship status with DMV records before listing; incorrect classification can delay audit and closing.

Conclusion

In North Carolina, you list only what your spouse owned at death on the 90‑day inventory. Valid lifetime gifts— even those made shortly before passing—are not inventory assets. However, the personal representative can seek recovery of certain near‑death transfers to pay claims, and a surviving spouse may count some pre‑death transfers in an elective share. If you want those transfers considered for your spousal share, file an elective share petition with the Clerk of Superior Court within six months of the estate’s letters.

Talk to a Probate Attorney

If you’re dealing with near‑death gifts and how they affect the inventory, creditor payments, or your elective share, 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.