Short Answer

In North Carolina, a personal representative may ask the Clerk of Superior Court for permission to forgo pursuing a low-value or burdensome asset or claim if doing so is in the estate’s best interest. The petition should be verified and explain the asset, expected costs versus likely recovery, who is affected, and why abandoning pursuit is prudent. Attach supporting documents and notify all interested persons; request a written order authorizing the decision before filing the final account.

Understanding the Problem

In North Carolina probate, can a personal representative ask the Clerk of Superior Court to approve not pursuing a small investment account that appears unrecoverable, when the estate’s priority expenses and the surviving spouse’s allowance have already been paid?

Apply the Law

Under North Carolina law, a personal representative must administer the estate prudently and in the estate’s best interest, and may decide whether to pursue or compromise claims. If an asset or claim is likely to cost more to recover than it would bring in, the representative may seek the clerk’s approval—through an estate proceeding—for authority to abandon the recovery effort and to be directed accordingly. The proceeding is filed with the Clerk of Superior Court in the county where the estate is administered, and parties with an interest must receive proper notice. A practical timing trigger is before the final account is approved, allowing the decision to be reflected in the accounting.

Key Requirements

• Verified petition: File a sworn petition in the estate file requesting authority to forgo recovery and explaining why it serves the estate’s best interest.
• Clear asset description: Identify the asset or claim, estimated value, and the person or entity believed to hold it.
• Cost–benefit analysis: Provide a practical showing that expected investigation, collection, or litigation costs and risks outweigh likely recovery.
• Interested persons and notice: List heirs/devisees who would be affected (and any unpaid creditors if relevant), note any minors/unborn beneficiaries, and ensure proper service and representation.
• Evidence and proposed findings: Attach statements, correspondence, demand/history, and estimates; ask the clerk to find that non‑pursuit is prudent and authorize the representative to abandon recovery.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-13-2 (Duties of personal representative) – Administer “as expeditiously and with as little sacrifice of value as is reasonable.”
• North Carolina Gen. Stat. § 28A-13-3 (General powers of personal representative) – Authorizes prudent acts, including compromising and settling claims.
• North Carolina Gen. Stat. § 28A-15-12 (Actions to recover property of decedent) – Provides recovery tools; helps explain when pursuit may be impractical.
• North Carolina Gen. Stat. § 28A-2-6 (Estate proceedings procedures) – Governs petitions before the clerk, notice, service, and hearings.

Analysis

Apply the Rule to the Facts: Here, the personal representative has already used priority assets to pay expenses and the surviving spouse’s allowance. The remaining item is a small investment account for the decedent’s children that appears unrecoverable or not worth the cost to chase. A verified petition should explain the asset, provide a practical cost–benefit showing (e.g., likely search, collection, or litigation costs versus value), identify the affected beneficiaries (children) and any creditors, and ask the clerk to authorize non‑pursuit as prudent.

Process & Timing

1. Who files: Personal representative. Where: Clerk of Superior Court (Estates Division) in the North Carolina county administering the estate. What: Verified petition for instructions/authority to forgo asset recovery; include exhibits; if contested, use the Estate Proceeding Summons (AOC‑E‑102) and serve per Rule 4. When: Before submitting the final account; allow at least 20 days for respondents to answer in a contested estate proceeding.
2. Serve all interested persons. If any beneficiary is a minor or unborn, address representation (virtual representation or guardian ad litem if needed). File any required Servicemembers Civil Relief Act declaration for non‑appearing respondents. The clerk will calendar a hearing; timing varies by county.
3. Attend the hearing. If the clerk finds abandonment is in the estate’s best interest, the clerk enters a written order with findings authorizing non‑pursuit. File the order in the estate file and reflect it in the final account.

Exceptions & Pitfalls

• Unpaid creditors or insolvent estates: If creditors remain unpaid, be prepared to show that pursuing the asset is still uneconomical; the clerk may scrutinize prejudice to creditors.
• Minors and unborn interests: Ensure proper representation; the clerk may require a guardian ad litem if virtual representation is inadequate.
• Notice and service traps: Use Rule 4 service in contested proceedings and include a servicemember status declaration when required; missing parties can undermine the order.
• Evidence gaps: Provide concrete support (account statements, correspondence, cost estimates). If funds are already spent or transferred, note that certain recovery tools may be ineffective, reinforcing the prudence of non‑pursuit.

Talk to a Probate Attorney

If you’re dealing with whether to pursue a small, hard‑to‑collect estate asset, 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.