Short Answer

Yes. North Carolina allows contingency fee agreements in civil cases, including trust asset recovery, so long as the agreement is in writing and clearly explains how the fee is calculated and who pays costs. If you also seek removal of a trustee or fee awards from the trust, parts of the case may proceed before the Clerk of Superior Court while claims for money damages and property recovery are handled in Superior Court.

Understanding the Problem

In North Carolina, can a trust beneficiary hire a lawyer on contingency to recover trust assets the trustee allegedly took, even with a summary judgment hearing approaching? One key fact: the disputed asset includes a large parcel of land. You are asking about fee structure (contingency) and where the case is handled (judge versus Clerk of Superior Court) to maximize recovery and protect your rights.

Apply the Law

North Carolina law permits a beneficiary to pursue remedies for breach of trust and wrongful taking of trust property. Claims for damages and recovery of property are civil actions in Superior Court, while certain trust administration issues (like removal of a trustee or accountings) begin before the Clerk of Superior Court. Courts have discretion to award costs and attorneys’ fees in trust administration proceedings and to direct whether fees are paid from the trust or personally by a party for mismanagement or bad faith.

Key Requirements

• Contingency fee basics: The agreement must be in writing, signed by the client, and state the percentage, what counts as “recovery,” and who pays case expenses.
• Right forum: Claims to recover money or land from a trustee (breach of trust, conversion, tracing, constructive trust) are filed in Superior Court; removal of a trustee or accountings are trust proceedings before the Clerk of Superior Court, with potential consolidation.
• Available remedies: Courts can restore misappropriated property, impose constructive trusts or liens, order accountings, surcharge a trustee, or award other appropriate relief.
• Fee shifting: In trust matters, a court may tax costs, including reasonable attorneys’ fees, to a party or the trust; a trustee may be charged personally for mismanagement or bad faith.
• Timing considerations: Deadlines for breach-of-trust claims can be short (sometimes as little as one year after receiving a report that adequately discloses the claim); act promptly.

What the Statutes Say

• N.C. Gen. Stat. § 36C-10-1001 (Remedies for breach of trust) – Authorizes money relief, accountings, and recovery or tracing of trust property.
• N.C. Gen. Stat. § 36C-10-1004 (Costs and expenses) – Allows courts to award costs and attorneys’ fees in trust proceedings as provided in § 6-21.
• N.C. Gen. Stat. § 6-21(2) (Taxing costs in trust/will matters) – Permits courts to tax costs, including reasonable attorneys’ fees, in actions construing or fixing rights under trusts.
• N.C. Gen. Stat. § 36C-2-203 (Jurisdiction in trust proceedings) – Sets what the Clerk of Superior Court can hear versus what goes to a Superior Court judge.

Analysis

Apply the Rule to the Facts: Because you allege the trustee stole trust assets, including land, a contingency arrangement is permissible and often used in recovery-focused cases. The core recovery claims (to get the land and other assets back or to obtain surcharges) belong in Superior Court, while any removal or accounting issues may start before the Clerk of Superior Court and be consolidated. Given the disputed memorandum and an approaching summary judgment hearing, new counsel can substitute in, seek a continuance if warranted, and target admissible evidence to meet or defeat Rule 56.

Process & Timing

1. Who files: The beneficiary. Where: Superior Court for damages/recovery; Clerk of Superior Court for removal/accounting (with potential consolidation in Superior Court). What: Civil complaint (breach of trust, constructive trust/lien, tracing, conversion, accounting) and, if needed, a trust petition before the Clerk; use the ESTATE SUMMONS FOR TRUST PROCEEDING (AOC‑E‑150) for Clerk matters. When: Move quickly to substitute counsel and, if necessary, request a continuance of the summary judgment hearing; to transfer certain nonexclusive Clerk matters, serve a notice of transfer within 30 days of service.
2. Expect early motions (continuance, injunction, expedited discovery) within weeks. Timing varies by county and the judge’s calendar, especially when a summary judgment hearing is already set.
3. Final relief may include an order imposing a constructive trust or lien, a judgment restoring property or surcharging the trustee, and, in the Clerk proceeding, an order removing the trustee and directing an accounting. Fee awards, if any, are by court order.

Exceptions & Pitfalls

• Contingency agreements must be in writing and should define recovery and costs; courts may require fee approval if payment is sought from trust assets.
• The Clerk of Superior Court cannot award monetary damages for breach of fiduciary duty; damages and title recovery must be sought in Superior Court.
• Courts may award attorneys’ fees in trust proceedings, but fee shifting is discretionary and not guaranteed; constructive trust relief alone may not support a fee award.
• Service and representation rules are strict in trust cases; ensure proper notice and representation of minors or unborn beneficiaries to avoid delays or invalid orders.

Talk to a Estate Planning Attorney

If you’re dealing with a trustee who diverted trust assets and you need recovery-focused representation, 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.