What can I do if a named executor fails to probate a will within 60 days in North Carolina?
Detailed Answer
Under North Carolina law, an executor named in a will must qualify by filing for probate within 60 days of the decedent’s death. If the executor does not file within that time, beneficiaries and interested parties can take action to move the estate administration forward.
North Carolina General Statutes allow for removal of a personal representative who neglects or refuses to qualify. Specifically, N.C.G.S. § 28A-6-1 authorizes any interested person—such as a residuary beneficiary—to petition the clerk of superior court to remove the named executor. When the clerk grants this petition, the court issues letters of administration with the will annexed to the petitioner. You then step into the role of administrator and gain all duties and powers the original executor would have held.
To initiate this process, file a petition in the clerk’s office of the county where the decedent lived. Include:
- The decedent’s death certificate;
- The original will with any codicils;
- An affidavit stating that the executor failed to qualify within 60 days;
- A proposed order removing the executor and granting you letters of administration.
The clerk will schedule a hearing and require you to notify all interested parties at least 10 days in advance. If the clerk finds sufficient grounds—namely neglect or refusal to serve—they will remove the executor and issue letters of administration with will annexed to you.
If the named executor later qualifies but then mismanages the estate or continues to neglect duties, beneficiaries can also seek removal under N.C.G.S. § 28A-6-2. That statute covers removal for causes such as willful waste, mismanagement of assets, or other neglect of duty.
Once you receive letters of administration with the will annexed, you take on all responsibilities: collecting assets, paying debts, filing tax returns, and distributing property according to the will.
Key Steps to Take
- Confirm the executor has not qualified within 60 days of the date of death.
- Prepare and file a petition under N.C.G.S. § 28A-6-1 for removal of the executor and issuance of letters of administration with will annexed.
- Include the death certificate, original will, affidavit of nonqualification, and proposed order.
- Serve or mail notice of the hearing to all interested parties at least 10 days before the date.
- Attend the clerk’s hearing and present evidence of neglect.
- Upon a favorable ruling, receive letters of administration and assume estate duties.
- If the executor later qualifies but mismanages the estate, consider a removal petition under N.C.G.S. § 28A-6-2.
Following these steps ensures the probate process moves forward and the decedent’s wishes are honored.
Contact Pierce Law Group for assistance navigating probate delays and executor removal. Our attorneys guide you through petition preparation, service of notice, and hearings. Email us at intake@piercelaw.com or call (919) 341-7055 to get started.
