Lost Wills, Found Heirs: Your Guide to NC Probate Court

Probate hearings rarely make for casual conversation, but they're a critical part of estate administration that can become surprisingly contentious. Join Jane Dearwester and Haley Matson from McIntyre Elder Law as they pull back the curtain on these often-misunderstood legal proceedings in North Carolina.

Most people assume probate is just paperwork and forms, but contested estates can involve numerous hearings before the clerk of court. Jane and Haley expertly break down the different categories of probate hearings you might encounter, from competing qualification disputes (who gets to serve as executor?) to heir determination hearings (who's legally entitled to inherit?). They explore petitions for possession and sale of real property, motions to remove executors who mishandle estate funds, and the fascinating 28A examinations that can compel disclosure from those hiding estate assets.

The conversation takes particularly interesting turns when discussing lost will hearings—especially relevant in Western North Carolina, which has suffered hurricanes and wildfires destroying important documents—and will caveats that challenge a will's validity based on lack of capacity or undue influence. One compelling example involves a "crooked pastor" who convinced a cognitively declining person to disinherit their entire family. Jane and Haley explain how they successfully had that will invalidated.

Perhaps most valuable is their explanation of North Carolina's spousal protections. Unlike some states, North Carolina doesn't allow complete disinheritance of spouses, providing statutory remedies through elective share (based on marriage length) and spousal allowance (the first $60,000 of the estate). Throughout their discussion, they emphasize how Chapter 28A of the North Carolina General Statutes creates a complex framework that isn't intuitive or straightforward—making professional legal representation essential when navigating these waters.

Want to learn more about protecting yourself and your loved ones from probate complications? Visit mcelderlaw.com to explore their blogs and resources, or connect with their team at offices in Shelby, Charlotte, and Hendersonville.

Episode Transcript

Jane Dearwester (00:00):
Hi, I'm Jane Dearwester with McIntyre Elder
Law and I'm here today with mycolleague, Haley Matson to talk
to y'all about probate hearingsin North Carolina.
Hi, Haley, hey Jane.
Hey, we were just meetingbefore we hopped on here to
record and it's really kind ofincredible how many different

(00:22):
types of hearings we can have inprobate.
A lot of times when we thinkabout probate and estate
administration process, it'svery form-driven and it's very
possible to go through an entireestate administration and not
have to have any hearings.
That's possible or very few.
But if the estate is veryhighly and hotly contested,

(00:47):
there are a lot of avenues whereyou will have to appear before
a clerk.
It is definitely in your bestinterest to be represented by
counsel.
So you know the rules.
Chapter 28A of the NorthCarolina General Statutes
governs probate and most ofestate administration and it's
not intuitive or straightforward.

(01:08):
It is very specific, thetimelines are very specific, the
types of relief that you canseek are very specific as far as
who can bring this petition andin what capacity.
So you really are best servedto speak with one of our
attorneys here at McIntyre ElderLaw if you're dealing with a
contested estate and you knowyou're going to have to show up

(01:29):
at a probate hearing.
So we're going to talk about afew different groups of types of
hearings and I'm going to starttalking about competing
qualifications.
So if someone submits anapplication to qualify as
administrator or executor of anestate, there may be other

(01:50):
parties who either just don'twant that person to be in charge
, or they want to be in charge,or maybe they want a
disinterested third party, apublic administrator.
Each county will have a publicadministrator.
So sometimes if the parties areextremely adverse, or no one is

(02:10):
within the state or nobody isreally capable or willing to
serve as the executor oradministrator of the estate, you
may have to have a hearing ormove the court to appoint a
public administrator.
And people can really duke itout at those hearings as far as
who is the appropriate person toserve in this fiduciary

(02:31):
capacity to administer theestate.
There are very specificqualifications for the type of
person.
Right, this has to be a veryresponsible person, trustworthy
person, because they're dealingwith somebody else's money.
I'm going to let Haley talkabout our next group of

(02:52):
potential hearings in probateand we kind of group these
together as airshipdetermination or claims disputes
Ideas that would come next inthe process.

Haley Matson (03:02):
Yeah, so in probate creditors can actually
make claims on any of the assetsin the estate and sometimes
creditors will have competingclaims and so during this they
can have a hearing before aclerk and talk about those
claims and figure out whichclaims have priority Right.
Similarly, there's a lot ofestates where there are

(03:24):
undeterminable heirs or there'slost heirs or people are coming
out of the woodwork.
So you can also go to a hearingfor heir determination where
they bring out a bunch ofstatutes on who is a legitimate
and an illegitimate child.
It's heard before the clerk andsometimes those can get pretty
crazy as well, yeah.

Jane Dearwester (03:44):
Sometimes they're unknown.
There may be years that areundetermined, that are maybe way
down the chain.
So yeah, those can definitelybe interesting.
For sure.
Ever a dull moment at probate.

Haley Matson (03:59):
I know.
So we will talk about our thirdgrouping now.
I think Jane will take it overwith her pretty disbursed
petition for 28A.

Jane Dearwester (04:09):
Yeah, different petitions.
There are a variety ofdifferent petitions, so we've
just highlighted a few.
A very common one that we dovery often are petitions for
possession, custody, control andsale of real property.
So when someone passes away,real property vests in the heirs
unless there's something in thewill to the contrary.

(04:32):
So it doesn't vest in theestate but the the real property
interest vests immediately inthe heirs.
However, if there are claims inthe estate, the executor has
the ability to bring the realestate back into the estate to
sell it, to pay creditors.
So, as you can imagine, thatcan get very contentious, having

(04:54):
to bring the property in andsell, but we do it very often.
There also can be petitions toremove an executor.
So an executor that has beenappointed and has started doing
the work needed to move theestate forward.
If they are in breach of theirfiduciary duty, if they're not

(05:17):
doing what they're supposed tobe doing, if they're using the
estate bank account as their ownpersonal piggy bank, if they
are getting rid of assets andnot telling anybody or not
following the rules, forwhatever reason, you can bring a
petition to remove the executor.
And again, that's before theclerk.
Again, if there are otherunusual things happening within

(05:40):
the estate administration.
You can bring a motion for a 28Aexamination under the statute
for any party that may haveknowledge or control over estate
assets, to haul them in beforethe court and before the clerk
and have a full on.
It's really a deposition on therecord before the clerk, where

(06:02):
the clerk can also ask thisperson questions about where are
the assets, what have you beendoing with those assets?
And the court can thereafterenter an order ordering the
executor to produce the assets,to produce accountings, to
produce bank statements,anything and everything again to

(06:26):
make sure they're safeguardingthe assets of the person who's
deceased.
So there are a lot of differentpetitions that can kind of come
in the middle.
Those are kind of the ones weidentified as maybe some of the
most common or the ones that wedeal with.

Haley Matson (06:46):
Some other stuff that we deal with fairly
frequently is going to be lostwills.
In probate court they reallywant the original signed copy of
the will.
If you do not have the original, you're going to have to go
through a lost will hearing.
It's the same process whetheror not it's a copy of a will or
it's actually a lost will.
You're going to have to go infront of the clerk, have a

(07:07):
hearing.
You might need to bringwitnesses proof copy of the will
.
You need to show them thatyou've done a diligent search.
Nobody can find it.
You might have to pull peoplewho could have been there or
knew what the person wanted.
So we can do those hearings aswell.
Caveats are also another thing.

(07:29):
So this is usually for peoplewho disagree with a will.
So this is going to be anycontest to the contents of the
will or how the assets are goingto be distributed.
So this is also heard in frontof the clerk, but it does move
to superior court after it getsfiled.
But it does move to superiorcourt after it gets filed.
They hear it in superior courtand then, after everything is

(07:51):
finished and they've decided, itgets kicked back to probate
court.

Jane Dearwester (07:55):
Yeah, caveats are really unique type of action
.
That kind of goes betweenpractice and superior court and
we do a lot of will caveats.
Usually those are brought onthe basis of lack of
testamentary capacity, that theperson didn't know what they
were doing when they signed thewill, or also and or undue

(08:17):
influence, that there wassomebody really exerting
influence over someone who wassusceptible to that influence,
maybe suffering from cognitivedecline, and someone in the
family or outside the family hadone with a crooked pastor that
said, hey, leave me everythingand disinherit your entire
family.
And unfortunately the persondid disinherit their entire

(08:41):
family in favor of this crookedpastor.
But we got that case and thatwill set aside as being invalid
and a product of undue influence.
The last kind of grouping ofprobate hearings we're going to
talk about, or sections, areelective share and spousal
allowance.
These are both statutoryremedies particularly available

(09:05):
to a surviving spouse.
So North Carolina is a statewhere you cannot disinherit your
spouse because our laws on thebooks provide protection for
spouses, and elective share inparticular.
It depends on how long you'vebeen married as far as how much

(09:26):
or what percentage of the estateyou're going to share in.
Spousal allowance across theboard is the first $60,000 for
the surviving spouse, butelective share differs again
depending on the length of themarriage.
And again both of those can becontested, can be subject to
hearings before the clerk ofcourt.

(09:46):
And again, you are best servedto be represented by counsel at
any of these hearings.
And Haley and I said before wegot on we could do a recording
on each one of theseindividually.
So we know we're throwing a lotof information at you here, but
just want to let you know thereare a lot of different types of

(10:07):
hearings that come up inprobate.
Well, thank you for joining metoday, haley.
Another resource please checkout our blogs on the website
mcelderlawcom.
I just wrote a blog last monthabout lost wills.
So that is on there here.
Here in Western North Carolina Iwork in our Hendersonville

(10:29):
office.
Unfortunately, we have been thevictim of multiple natural
disasters over the past year.
We had Hurricane Helene comethrough last fall and then this
spring we had tens of thousandsof acres of wildfires where a
lot of homes were lost, liveswere lost.
So we would like to tap out offurther natural disasters for

(10:52):
the rest of this year and forthe rest of time.
Thank you very much, but we dohave a lot of clients and
potential clients who've beenasking about what happens if I
lose my documents.
So that goes for any of thesetopics.
Please check out our websiteand our blogs and other video
recordings for more informationand if any of you are dealing

(11:15):
with probate or any contestedprobate, please give us a call.
We have offices in Shelby,charlotte and Hendersonville and
we look forward to meeting you.
And thanks again, haley, we'llsee you soon.
Thanks, jane.