Chapter 28a Administration Of Decedents Estates

Chapter 28A – Administration of Decedents’ Estates

Definitions and Other General Provisions

§ 28A-1-1.  Definitions

As used in this Chapter, unless the context otherwise requires, the term:

(1)        “Collector” means any person authorized to take possession, custody, or control of the personal property of the decedent for the purpose of executing the duties outlined in G.S. 28A-11-3.

(1a)      “Devisee” means any person entitled to take real or personal property under the provisions of a valid, probated will.

(1b)      “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.

(2)        “Foreign personal representative” means a personal representative appointed in another jurisdiction, including a personal representative appointed in another country.

(3)        “Heir” means any person entitled to take real or personal property upon intestacy under the provisions of Chapter 29 of the General Statutes.

(4)        “Mortgage” includes a deed of trust.

(4a)      “Party,” in the context of a contested or uncontested estate proceeding pursuant to G.S. 28A-2-6, means a party joined as a petitioner or respondent.

(4b)      “Person” means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

(5)        “Personal representative” includes both an executor and an administrator, but does not include a collector.

(6)        Repealed by Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.  (1973, c. 1329, s. 3; 1981, c. 955, c. 4; 2011-344, s. 4.)

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§ 28A-1-2.  Repealed by Session Laws 1979, c. 88, s. 2.

Article 2

Jurisdiction for Probate of Wills and Administration of Estates of Decedents.

§ 28A-2-1.  Clerk of Superior Court

The clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited  to, estate proceedings as provided in G.S. 28A-2-4.  (R.C., c. 46, s. 1; C.C.P., s. 433; 1868-9, c. 113, s. 115; Code, s. 1374; Rev., s. 16; C.S., s. 1; 1931, c. 165; 1943, c. 543; 1951, c. 765; 1973, c. 1329, s. 3; 2011-344, s. 4.)

§ 28A-2-2.  Assistant Clerk of Superior Court

An assistant clerk of superior court shall have jurisdiction as provided by G.S. 7A-102. (1973, c. 1329, s. 3.)

§ 28A-2-3.  Jurisdiction Where Clerk Interested

Whenever the clerk of superior court is a subscribing witness to a will offered for probate in the clerk’s county or has an interest, direct or indirect, in an estate or trust within the clerk’s jurisdiction, jurisdiction with respect thereto shall be vested in the senior resident superior court judge of the clerk’s district, and shall extend to all things which the clerk of superior court might have done in the administration of such estate.  (R.C., c. 46, s. 1; C.C.P., s. 433; 1868-9, c. 113, s. 115; Code, s. 1374; Rev., s. 16; C.S., s. 1; 1931, c. 165; 1943, c. 543; 1951, c. 765; 1973, c. 1329, s. 3; 1975, c. 300, s. 1; 2011-344, s. 4.)

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    § 28A-2-4. Subject Matter Jurisdiction of the Clerk of Superior Court in Estate Proceedings

    (a)        The clerks of superior court of this State, as ex officio judges of probate, shall 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:

    (1)        Probate of wills.

    (2)        Granting and revoking of letters testamentary and letters of administration, or other proper letters of authority for the administration of estates.

    (3)        Determination of the elective share for a surviving spouse as provided in G.S. 30-3.1.

    (4)        Proceedings to ascertain heirs or devisees, to approve settlement agreements pursuant to G.S. 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 an estate proceeding pending before the clerk of superior court to the extent consistent with this Article.

    (b)        Nothing in this section shall affect the right of a person to file an action in the Superior Court Division of the General Court of Justice for declaratory relief under Article 26 of Chapter 1 of the General Statutes. In the event that either the petitioner or the respondent in an estate proceeding requests declaratory relief under Article 26 of Chapter 1 of the General Statutes, either party may move for a transfer of the proceeding to the Superior Court Division of the General Court of Justice as provided in Article 21 of Chapter 7A of the General Statutes. In the absence of a removal to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to an estate proceeding to the extent consistent with this Article.

    (c)        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 (b) of this section or G.S. 28A-2-5 of the following:

    (1)        Actions by or against creditors or debtors of an estate, except as provided in Article 19 of this Chapter.

    (2)        Actions involving claims for monetary damages, including claims for breach of fiduciary duty, fraud, and negligence.

    (3)        Caveats, except as provided under G.S. 31-36.

    (4)        Proceeding to determine proper county of venue as provided in G.S. 28A-3-2.

    (5)        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).

    (6)        Actions for reformation or modification of wills under Article 10 of Chapter 31 of the General Statutes.  (2011-344, s. 4; 2012-194, s. 12; 2017-102, s. 9; 2017-152, ss. 2(a), 3; 2019-243, s. 23.)

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