How can I petition to become estate administrator if the named executor hasn’t probated the will within 90 days in North Carolina?

Detailed Answer

When a person dies with a will in North Carolina, the named executor must present the original will to the Clerk of Superior Court and qualify for letters testamentary. Under North Carolina law, an executor who fails to present the will within 60 days of the testator’s death forfeits the right to serve. If more than 90 days have passed since the death and the executor still hasn’t probated the will, you—an interested party—can ask the court to appoint you as the estate administrator instead.

Statutory Basis

Two key North Carolina statutes govern this process:

N.C. Gen. Stat. § 28A-6-1 (Presentation of Will): Requires the named executor to present the will within 60 days. View statute: ncleg.gov/GS_28A-6-1.
N.C. Gen. Stat. § 28A-6-2 (Letters of Administration): Allows the court to issue letters of administration with the will annexed when no executor qualifies. View statute: ncleg.gov/GS_28A-6-2.

Step-by-Step Process

Confirm the Deadline Has Passed: Verify that more than 90 days have elapsed since the testator’s death and that the named executor still has not qualified.
Prepare Your Petition: File a Petition for Letters of Administration with Will Annexed in the clerk’s office of the county where the decedent last resided. In your petition, state your relationship to the decedent and explain that the executor failed to qualify.
Gather Required Documents:
- Original will (if in your possession).
- Certified copy of the death certificate.
- Names and addresses of heirs and devisees.
Provide Notice: Serve notice of the petition on the named executor and other interested parties at least ten days before the hearing.
Post Bond and File Oath: Be prepared to post a bond and take the oath required by the court. The bond amount usually equals the value of the estate.
Attend the Hearing: Appear at the scheduled hearing. If the court finds that the executor has not qualified, it will issue you letters of administration with will annexed.

Key Points to Consider

The 60-day window in N.C.G.S. § 28A-6-1 is mandatory. After that, the named executor loses the right to serve.
You must qualify as an “interested person” to petition—this generally includes heirs and beneficiaries under the will.
Filing in the correct county is crucial. The estate’s administration follows the decedent’s last residence.
Timely notice to all interested parties helps prevent delays or disputes.
The court may require a bond to protect the estate against mismanagement.
If the named executor later qualifies before your hearing, the court may dismiss your petition.

Next Steps

If the named executor fails to act, you can protect the estate and beneficiaries by seeking administration yourself. At Pierce Law Group, our attorneys have guided many families through these probate challenges. Let us review your situation, prepare the necessary documents, and represent you at the hearing.