Probate Q&A Series

Understanding and Asserting Your Elective Share in North Carolina Probate

When your spouse dies without leaving you sufficient assets outright, North Carolina law allows you to claim an elective share. Under N.C.G.S. § 30-3.1, you may elect to take one-third of the net value of the probate estate rather than accept what the will provides or what intestacy rules might yield.

To protect your rights:

  • File a written election with the clerk of superior court in the county where probate occurs. You must do this within six months after the personal representative first qualifies. Missing this deadline generally bars your claim.
  • Identify all assets in the probate estate, including real property, personal property and financial accounts. The personal representative must file an inventory under N.C.G.S. § 28A-13-1. Review it carefully.
  • Calculate the net estate value. The net estate equals gross probate assets minus funeral expenses, debts, costs and allowances.
  • Work with counsel to prepare and file your election. A clear, timely election safeguards your claim if distributions stall or assets vanish.

Even after you file, executors or trustees must honor your claim. They must set aside and distribute to you your elective share before making further distributions.

Legal Tools When Distributions Stall or Assets Are Mismanaged

If the personal representative or trustee delays distributions or mismanages assets, you have remedies under North Carolina law:

  • Request an Accounting: Ask the court to compel the fiduciary to provide a full accounting under N.C.G.S. § 28A-13-1. Accountings show receipts, disbursements and remaining assets.
  • File a Petition for Removal: If mismanagement is serious, petition the clerk to remove the personal representative or trustee under N.C.G.S. § 28A-18-1. Removal may follow waste, breach of fiduciary duty or undue delay.
  • Pursue a Surcharge: You can hold the fiduciary financially liable for losses caused by misconduct under N.C.G.S. § 28A-18-2. The court may order the fiduciary to reimburse the estate for improper distributions or losses.
  • Motion to Compel Distribution: If the elective share remains unpaid, ask the court to enforce your election and compel the fiduciary to set aside the required funds or property.

Conclusion and Next Steps

Timely asserting your elective share protects your financial interests after a spouse’s death. If the fiduciary delays or mismanages the estate, North Carolina law offers clear paths to force accountings, seek removal, recover losses and compel distribution.

Pierce Law Group’s attorneys guide surviving spouses through the election process and enforce their rights under North Carolina statutes. Contact us today to discuss your case and safeguard your elective share. Email us at intake@piercelaw.com or call (919) 341-7055 for a consultation.