A Guide to Wills, Estate, Trust and Guardianship Litigation

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XIII. Special Proceedings Arising out of Estates

1) Some proceedings arising out of estates are deemed to be special proceedings rather than
estates proceedings. Examples include:

    • Special proceedings to obtain possession, custody, or control of assets as provided in N.C. Gen. Stat. § 28A-13-3.
    • Special proceedings relating to the sale, lease, or mortgage of real estate as provided in N.C. Gen. Stat. § 28A-15-1 and in N.C. Gen. Stat. § 28A-17-1.
    • Special proceedings against unknown heirs before distribution of estate as set forth in N.C. Gen. Stat. § 28A-22-3.

2) Special proceedings are governed by the Rules of Civil Procedure. N.C. Gen. Stat. § 1-393.

3) Upon the commencement of a special proceeding, the clerk shall issue a special proceedings summons stating that a responsive pleading must be filed within ten (10) days of service of the summons. N.C. Gen. Stat. § 1-394.

4) The statutes governing special proceedings are found at N.C. Gen. Stat. § 1-395 through
1-408.

5) The Rules of Evidence apply to special proceedings. N.C. Gen. Stat. § 8C, Rule 1101(a).

6) N.C. Gen. Stat. § 1-301.2 states:

  • (b) Transfer. — Except as provided in subsections (g) and (h) of this section, when an issue of fact, an equitable defense, or a request for equitable relief is raised in a pleading in a special proceeding or in a pleading or written motion in an adoption proceeding, the clerk shall transfer the proceeding to the appropriate court. In court, the proceeding is subject to the provisions in the General Statutes and to the rules that apply to actions initially filed in that court.
  • (c) Duty of Judge on Transfer. — Whenever a special proceeding is transferred to a court pursuant to subsection (b) of this section, the judge may hear and determine all matters in controversy in the special proceeding, unless it appears to the judge that justice would be more efficiently administered by the judge’s disposing of only the matter leading to the transfer and remanding the special proceeding to the clerk.
  • (d) Clerk to Decide All Issues. — If a special proceeding is not transferred or is remanded to the clerk after an appeal or transfer, the clerk shall decide all matters in controversy to dispose of the proceeding.

7) N.C. Gen. Stat. § 1-301.2 further provides:

  • (g) Exception for Incompetency and Foreclosure Proceedings and Proceedings to Permit Sterilization for Medical Necessity.
  • Proceedings for adjudication of incompetency or restoration of competency under Chapter 35A of the General Statutes, or proceedings to determine whether a guardian may consent to the sterilization of a mentally ill or mentally retarded ward under G.S. 35A-1245, shall not be transferred even if an issue of fact, an equitable defense, or a request for equitable relief is raised. Appeals from orders entered in these proceedings are governed by Chapter 35A to the extent that the provisions of that Chapter conflict with this section.
  • Foreclosure proceedings under Article 2A of Chapter 45 of the General Statutes shall not be transferred even if an issue of fact, an equitable defense, or a request for equitable relief is raised. Equitable issues may be raised only as provided in G.S. 45-21.34. Appeals from orders entered in these proceedings are governed by Article 2A of Chapter 45 to the extent that the provisions of that Article conflict with this section.
  • (h) Exception for Partition Proceedings. — Notwithstanding the provisions of subsection (b) of this section, the issue whether to order the actual partition or the sale in lieu of partition of real property that is the subject of a partition proceeding shall not be transferred and shall be determined by the clerk. The clerk’s order determining this issue, though not a final order, may be appealed pursuant to subsection (e) of this section.

8) Notwithstanding Rule 58 of the North Carolina Rules of Civil Procedure orders of the Clerk shall be served on other parties only if otherwise required by law. N.C. Gen. Stat. § 1-301.2(f).

9)N.C. Gen. Stat. § 1-301.2(e) states:

  • (e) Appeal of Clerk’s Decisions. — Except as provided in G.S. 46-28.1(f), a party aggrieved by an order or judgment of a clerk that finally disposed of a special proceeding, may, within 10 days of entry of the order or judgment, appeal to the appropriate court for a hearing de novo. Notice of appeal shall be in writing and shall be filed with the clerk. The order or judgment of the clerk remains in effect until it is modified or replaced by an order or judgment of a judge. A judge of the court to which the appeal lies or the clerk may issue a stay of the order or judgment upon the appellant’s posting of an appropriate bond set by the judge or clerk issuing the stay. Any matter previously transferred and determined by the court shall not be re-litigated in a hearing de novo under this subsection.

10) Under Rule 58 a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.

* Number 1 above was taken from Ann. M. Anderson, Estate Proceedings in North (2012) published by the UNC School of Government.