A Guide to Wills, Estate, Trust and Guardianship Litigation

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XII. Litigation of Estate Disputes Before the Clerk of Court

Most disputes arising out of estates are brought before the Clerk of Superior Court.  These include actions to remove executors or administrators, actions to compel estate accountings as well as other actions arising.  This section will provide an overview of some of the rules that apply in such proceedings.

Estate Proceedings

1) “Estate Proceeding” means a matter initiated by petition related to the administration, distribution or settlement of an estate, other than a special proceeding. There may be more than one estate proceeding within the administration of a decedent’s estate. N.C. Gen. Stat. § 28A-1-1(1b).

2) The clerks of superior court of this State, as ex officio judges of probate, have original jurisdiction of estate proceedings. Except as provided in subdivision (4) of this subsection the jurisdiction of the clerk of superior court is exclusive. Estate proceedings include, but are not limited to, the following:

  • Probate of wills.
  • Granting and revoking of letters testamentary and letters of administration, or other proper letters of authority for the administration of estates.
  • Determination of the elective share for a surviving spouse as provided in G.S. 30-3.
    • Proceedings to ascertain heirs or devisees, to approve settlement agreements pursuant toS. 28A-2-10, to determine questions of construction of wills, to determine priority among creditors, to determine whether a person is in possession of property belonging to an estate, to order the recovery of property of the estate in possession of third parties, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right. Any party or the clerk of superior court may file a notice of transfer of a proceeding pursuant to this subdivision to the Superior Court Division of the General Court of Justice as provided in G.S. 28A-2-6(h). In the absence of a transfer to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to a trust proceeding pending before the clerk of superior court to the extent consistent with this Article.

N. C. Gen. Stat. § 28-2-4(a).

3) Other estate proceedings include:

  • Petition for probate of will in solemn form. N. C. Gen. Stat. § 28A-2A-7.
  • Petition for living probate of a will. N. C. Gen. Stat. § 28A-2D-1 et. seq.
  • Determination of a spouse’s estate in lieu of elective share. N. C. Gen. Stat § 29-30(f).
  • Controversies under the intestate succession act. N. C. Gen. Stat. § 29-12.1.
  • Decisions of the clerk concerning the preservation of assets during the pendency of will caveats. N.C. Gen. Stat. § 31-36(c).
  • Proceedings to contest the appointment of a personal representative or collector. N.C. Gen. Stat. § 28A-6-4.
  • Proceedings by a personal representative or collector to enforce his or her rights under N.C. Gen. Stat. § 28A-13-3(a).
  • The personal representative’s rights to petition for examination of any person reasonably believed to be in possession of property of an estate and to recover such property. N.C. Gen. Stat. § 28A-15-12 (b1).
  • Proceedings to reopen an estate. In re: Estate of Mullins, 182 N.C. App. 667, 669, 643 S.E. 2d 599, 601 (2007).
  • Approval of a fee paid to an attorney hired to represent an estate. Strickland v. Strickland, 206 N.C. App. 766, 699 S.E. 2d. 142 (2010) (unpublished).
  • Revocation of letters of Administration is heard as an estate proceeding and appealed as a special proceeding. N.C. Gen. Stat. § 28A-9-1(b); N.C. Gen. Stat. § 28A-10-6.
  • Resignation of a personal representative is heard as an estate proceeding and appealed as a special proceeding. N.C. Gen. Stat. § 28A-10-4; N.C. Gen. Stat. § 28A-10-6.

4) Without otherwise limiting the jurisdiction of the Superior Court Division of the General Court of Justice, the clerk of superior court shall not have jurisdiction under subsection (a) or (c) of this section of the following:

  • Actions by or against creditors or debtors of an estate, except as provided in Article 19 of this Chapter.
  • Actions involving claims for monetary damages, including claims for breach of fiduciary duty, fraud, and negligence.
  • Caveats, except as provided under G.S. 31-36.
  • Proceeding to determine proper county of venue as provided in G.S. 28A-3-2.
  • Recovery of property transferred or conveyed by a decedent with intent to hinder, delay, or defraud creditors, pursuant to G.S. 28A-15-10(b). C. Gen. Stat. § 28A-2-4(c).

5) The clerk of superior court and the superior court have concurrent jurisdiction over the matters set forth in N.C. Gen Stat. § 28A-2-4(a)(4) (see #2 above). Any party or the clerk of court may file a notice of transfer of such proceedings to superior court pursuant to N.C. Gen. Stat. § 28A-2-6(h). The notice of transfer must be served within thirty (30 days) after the moving party is served with a copy of the pleading requesting relief or, in the case of the clerk, prior to the presentation of evidence by the parties, including a hearing at which an order of continuance is entered. Failure to timely serve a notice of transfer is a waiver of any objection to the clerk’s jurisdiction. N.C. Gen. Stat. § 28A-2-6(h). In the event a matter is transferred, the clerk retains exclusive jurisdiction over other issues, unless it is stayed by the superior court. N.C. Gen. Stat. § 28A-2-6(i).

6) Nothing in Article 2 of Chapter 28A shall affect the right of a person to an action for a declaratory judgment in superior court. If declaratory relief is sought by a party to an Estate Proceeding the other party may file a motion to transfer the proceeding to Superior Court pursuant to Article 21 of Chapter 7A of the General Statutes. In the absence of removal Article 26 of Chapter 1 of the general statutes shall apply to the extent consistent with Article 2 of Chapter 28A of the General Statutes. N.C. Gen. Stat. § 28A-2-4(b). Generally, motions to transfer under N.C. Gen. Stat. § 7A-258(c) must be filed by a party other than the plaintiff within thirty (30) days of receipt of the pleading which justifies a transfer. A plaintiff must file a motion for transfer within twenty (20) days of receiving a pleading which justifies a transfer. A party must file a motion to transfer within ten (10) days of filing an amendment to a pleading which amendment justifies a transfer.

7) If the clerk of court has a conflict of interest, then jurisdiction over estate matters shall be vested in the senior resident court judge of the clerk’s district. N.C. Gen. Stat. § 28A-2-3.

8) When an estate proceeding pending before the clerk and a civil action pending in superior court have common issues of law or fact, upon the court’s own motion or upon the motion of a party, the superior court judge may order a consolidation of the estate proceeding and the civil action. N.C. Gen. Stat. § 28A-2-6(f).

9) Contested estate proceedings are commenced by the filing of a petition. N.C. Gen. Stat. § 28A-2-6(a). There may be more than one estate proceeding within the administration of a decedent’s estate. N.C. Gen. Stat. § 28A-1-1(1b). The clerk shall issue an estate proceeding summons to the respondents. Respondents must appear and file a response to the petition within twenty (20) days. N.C. Gen. Stat. § 28A-2-6(a). After the time for responding has expired any party or the clerk may give notice of hearing to all parties. (Sample pleadings and forms are attached in Appendix section on “Estate Proceedings”).

10) Any petition, response, or request for a hearing shall contain a short and plain statement of the claims sufficiently particular to allow the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, showing that the pleaders are entitled to relief, and demand for the relief to which the pleader is entitled. No technical form of motions or responses are required. N.C. Gen. Stat. § 28A-2-6(c).

11) Extensions of time may only be granted for more than ten (10) days upon the express finding by the clerk that justice so requires. The parties may agree without the approval of the clerk to extensions of time, not to exceed thirty (30) days. N.C. Gen. Stat. § 28A-2-6(d).

12) Pursuant to N.C. Gen. Stat. § 28A-2-6(e) the following Rules of Civil Procedure apply in all estate proceedings:

  • Rule 4 - Service of process;
  • Rule 5 - Service of subsequent pleadings and other papers;
  • Rules 6(a), (b), (d), and (e) – Time;
  • Rule 18 – Joinder of claims;
  • Rule 19 – Necessary joinder pf parties;
  • Rule 20 – Permissive joinder of parties;
  • Rule 21 – Procedure upon misjoinder/non-joinder;
  • Rule 24 – Intervention;
  • Rule 45 – Subpoenas;
  • Rule 56 – Summary judgment;
  • Rule 65 – Injunctions.

In applying the above Rules the term “judge” shall mean “clerk of superior court”.

13) C. Gen. Stat. § 28A-2-7 states:

  • Notwithstanding any other applicable rule of the Rules of Civil Procedure or provision of Chapter 1 of the General Statutes, in any contested or uncontested estate proceeding or special proceeding, whether brought before the clerk of superior court or in the Superior Court Division of the General Court of Justice, the parties shall be represented as provided in Article 3 of Chapter 36C of the General Statutes.
  • In the case of any party represented by another as provided in subsection (a) of this section, service of process shall be made by serving such representative.

14) While N.C. Gen. Stat. § 28A-2-6(c) contains language similar to Rule 11’s language on

signing pleadings in good faith, it does not contain Rule 11’s language authorizing the imposition of sanctions for frivolous pleadings. Rule 11 is not one of the Rules incorporated in estate proceedings pursuant to N.C. Gen. Stat. § 28A-2-6(e).

15) Upon motion of a party or upon the clerk’s own motion, the clerk may order that other rules of civil procedure may apply to the proceeding, including the discovery rules. N.C. Gen. Stat. § 28A-2-6(e). This means that other than the issuance of subpoenas pursuant to Rule 45, no discovery can be obtained in an estate action unless it is either agreed to by the parties or ordered by the clerk.

16) Summary judgment is available in estate proceedings. N.C. Gen. Stat. § 28A -2-6(e).

17) Hearings before the clerk in estate matters are formal hearings at which the North Carolina Rules of Evidence apply. N.C. Gen. Stat. § 8C-1, Rule 1101(a). However, in a rule particular to estate proceedings, “It is not necessary for a party to object to the admission or exclusion of evidence before the clerk in order to preserve the right to assign error on appeal to its admission or exclusion.” N.C. Gen. Stat. § 1-301.3(d).

18) In the discretion of the clerk or at the request of a party, all hearings of estate matters shall be recorded by an electronic device. N.C. Gen. Stat. § 1-301.3(f). Since appeals of estate matters are reviewed on the record, it is the better practice to have all hearings of estate matters recorded.

19) If a respondent does not respond, the clerk may hear the matter summarily, but default may not be entered. The petition still has the burden of proof and the clerk should issue a formal order with findings of fact and conclusions of law. Clerk of Superior Court: Procedures Manual, Vol. 2, 89.11 (2012).

20) At the conclusion of the hearing the clerk must enter an order containing findings of fact and conclusions of law supporting the order or judgment. N.C. Gen. Stat. § 1-301.3(b).

21) A party aggrieved by an order of judgment of the clerk may file a written notice of appeal “within ten (10) days after entry of the order of judgment after service of notice on that party.” N.C. Gen. Stat. § 28A-2-9; N.C. Gen. Stat. § 1-301.3(c). The language of N.C. Gen. Stat. § 1- 3(c) states the notice shall contain “a short and plain statement of the basis for the appeal.” This language became effective in 2011. Prior to Session Law 2011-344 the statute stated that the notice “shall specify the basis for appeal”. Cases decided under this prior language, such as In re: Estate of Whitaker, 179 N.C. App. 375, 633 S.E.2d 846 (2006), required notices of appeal to contain specific exceptions to the findings of fact and conclusions of law and the clerk’s order. There are no cases which have determined what level of specificity is required under the current statute. Under these circumstances it is prudent to be sure that any notice of appeal clearly addresses the matters to which objection is taken.

22) Upon appeal, the judge of the superior court shall review the order or judgment of the Clerk for the purpose of determining only the following:

  1. Whether the findings of fact are supported by the evidence.
  2. Whether the conclusions of law are supported by the findings of facts.
  3. Whether the order or judgment is consistent with the conclusions of law and applicable law.

N.C. Gen. Stat. § 1-301.3(d).

The last section of this Statute contains two rules that, as far as I know, apply only in estate proceedings. First, it is not necessary for a party to object to the admission or exclusion of evidence before the clerk in order to preserve the right to assign error on appeal to its admission or exclusion. If the judge finds prejudicial error, the superior court can either remand the matter to the clerk or resolve the matter on the basis of the record. This section also allows the superior court judge to determine that the record before the clerk is insufficient and may receive additional evidence on the factual issue in question. Neither the statutes nor the case law give any guidance as to how or when this power should be exercised. The only reported case, Strickland v. Strickland, 2010 N.C. App. LEXIS 1772 (2010) (unpublished) merely approves without discussion the superior court’s acceptance of new evidence.

23) Pursuant to N.C. Gen. Stat. § 6-21(2) costs, including attorneys’ fees, can be awarded in, “Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys’ fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.” N.C. Gen. Stat. § 6-21(2).

* For a more complete discussion of the above topics see Ann. M. Anderson, Estate Proceedings in North Carolina (2012) published by the UNC School of Government. Numbered sections 3, 12, and 21 were taken from that publication.

Stephen A. Brown

John N. Hutson, Jr.

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