Aug112025
Probate Q&A Series

Can I sue my late father’s power of attorney for abusing her authority and withholding my inheritance after probate in North Carolina?

Short Answer

Yes—if your father’s agent (power of attorney) misused his money before he died, North Carolina law allows claims to recover those assets. Usually, the estate’s personal representative brings the case in Superior Court for monetary relief, and you can also ask the Clerk to compel the agent to account. The agent’s authority ends at death, so the real issue is pre‑death misuse that reduced what should have been in the estate. If the estate has closed, you can ask the court to reopen it so a personal representative can pursue recovery.

How North Carolina Law Applies

Under North Carolina’s Uniform Power of Attorney Act, an agent owes fiduciary duties and must act in the principal’s best interests. If an agent self‑deals, exceeds the authority granted in the document, or fails to keep proper records, that can be a breach of fiduciary duty. After death, the agent’s authority ends, but the estate can still seek an accounting and sue to restore assets the agent diverted while the principal was alive. In practice, that means the estate’s personal representative (executor/administrator) typically brings claims like breach of fiduciary duty, constructive fraud, conversion, and asks the court to impose remedies such as a constructive trust and surcharge.

A leading North Carolina practice guide explains that: (1) the Clerk of Superior Court can order an agent to account and address questions about the agent’s authority, but (2) claims for money damages (for example, breach of fiduciary duty) must be filed in Superior Court. It also notes that a violation of the Act is itself a breach of fiduciary duty and that courts can order restoration of property, disgorgement of profits, and even award attorneys’ fees in appropriate cases. Another North Carolina estate administration manual emphasizes the personal representative’s duty to discover and recover estate assets, including using special estate proceedings to examine people believed to be holding estate property and filing civil actions to recover it.

If you believe the agent “withheld your inheritance,” the usual path is to: (a) have the estate’s personal representative demand an accounting and records; (b) if misconduct appears, file a Superior Court lawsuit to recover the money or property for the estate; and (c) distribute properly to heirs/beneficiaries after recovery. If the estate is closed, you can move to reopen it so a personal representative can be appointed (or re‑appointed) to pursue these claims.

Key Requirements

  • Standing: The personal representative of the deceased principal’s estate usually sues for damages. Heirs can petition the Clerk to compel an accounting and to direct the personal representative to act; in some matters an “interested person” may initiate an estate proceeding to examine someone holding estate property.
  • Misconduct: Show the agent exceeded the POA, acted for self‑benefit, or failed to act in the principal’s best interests. Records, transfers, gifts, or unexplained withdrawals are critical.
  • Proper forum: Monetary damages claims go to Superior Court; accountings and similar relief can begin before the Clerk.
  • Timing: Many claims must be filed within three years (for conversion and most fiduciary duty claims), with fraud often running from discovery; some related claims can have up to ten years. The clock often starts when the fiduciary relationship ends (typically at death or termination), but deadlines vary by claim.
  • Relief available: Accounting, restoration of property, disgorgement of profits, constructive trust, suspension/removal of agent, and possible attorneys’ fees.

Process & Timing

  1. Collect documents: Obtain the POA, bank and brokerage statements, checks, wire details, and any gift or transfer paperwork.
  2. If the estate is open: Ask the personal representative to request records from the agent and to demand a formal accounting.
  3. Compel an accounting: File an estate proceeding with the Clerk to compel the agent to account and produce records if the agent resists.
  4. File the lawsuit for damages: The personal representative files a civil action in Superior Court for breach of fiduciary duty and related claims to restore assets and impose remedies (e.g., constructive trust, surcharge).
  5. Discovery & remedies: Use subpoenas, depositions, and tracing to identify diverted assets. Seek restoration, disgorgement, liens, and other appropriate relief; fees may be available.
  6. If the estate is closed: Move to reopen the estate and (re)appoint a personal representative so the estate can pursue claims. If the current PR won’t act, seek court direction or removal and appointment of someone who will.
  7. Deadlines: Don’t delay—many claims have three‑year limitations, sometimes tolled until discovery while the agent still served. Specific timelines depend on the claim.

What the Statutes Say

Exceptions & Pitfalls

  • Wrong plaintiff: Heirs usually cannot sue directly for damages that belong to the estate. Work through the personal representative or seek appointment/replacement.
  • Wrong forum: Monetary damages claims must be filed in Superior Court, not with the Clerk.
  • POA document terms: Some gifts or transactions may be authorized by the POA or by statute; the analysis turns on the document and the law.
  • Non‑probate assets: Life insurance and certain beneficiary‑designated assets don’t pass through the estate; different remedies and proof may be required.
  • Deadlines: Statutes of limitation and repose can bar claims. Tolling rules vary by claim and facts.
  • Proof problems: Courts look for bank records, tracing, and credible explanations. Inadequate documentation can sink a case.

Helpful Hints

  • Get the POA document early; its exact wording matters.
  • Gather 2–3 years of bank, brokerage, and credit card records to trace transfers.
  • Ask the personal representative in writing to demand an accounting from the agent and to pursue recovery.
  • If the agent resists, file an estate proceeding with the Clerk to compel an accounting and production of records.
  • If the estate is closed, request to reopen and appoint (or replace) a personal representative so the estate can sue.

Sources & References

  • North Carolina Fiduciary Litigation Manual (NC Bar Association CLE, 2022): Chapter XVI (Powers of Attorney), esp. XVI‑19 to XVI‑25; Chapter IX (Breach of Fiduciary Duty), IX‑20; Chapter XIII (Compelling Fiduciary Accountings), XIII‑6.
  • 2024 North Carolina Clerks Manual (UNC School of Government/AOC): Chapters 2–4 on estate proceedings and Clerk vs. Superior Court jurisdiction; sections discussing G.S. 28A‑2‑4 and procedures to compel accountings and handle contested estate matters.
  • North Carolina Estate Administration Manual, Supplemented 10th Edition (NC Bar Association): Chapter IX (Handling Assets), IX‑14 to IX‑19, IX‑66 to IX‑69; Chapter XVIII (Estate Proceedings), XVIII‑16 to XVIII‑17 (use of G.S. 28A‑15‑12); Chapter X (Inventories & Accountings) (PR duties to discover and recover assets).

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney‑client relationship.

Talk to a Probate Attorney

If you’re dealing with possible power‑of‑attorney abuse that reduced your inheritance, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

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.