Probate Disputes

In North Carolina probate dispute is a conflict that occurs during the estate administration process. There are typically several parties involved in probate proceedings who have different, sometimes conflicting interests. It is not surprising that the process can become adversarial at times, resulting in litigation. Probate disputes are litigation in the Superior Court because in North Carolina the Superior Court has jurisdiction over probate matters. G.S. § 28A-3-1. A probate dispute can have a profound impact on the administration process, causing significant delays and added expense. A probate dispute can even lead to a change in beneficiaries and removal of fiduciaries.

Will contest in North Carolina

A will contest is a lawsuit designed to invalidate a will. In North Carolina a will contest is called a will caveat. G.S. § 31-32. A will caveat may only be initiated by an interested party such as a family member who believes that there were abnormalities in the circumstances of the will’s creation or execution such that it should be invalidated. Legally acceptable reasons for challenging a will include:

  • Lack of testamentary capacity. North Carolina law requires that a testator must have been an adult and must have been mentally competent when they executed their will. Evidence to the contrary would be grounds for a will contest.
  • Undue influence. Undue influence occurs when a testator was illegally influenced into executing a will they would not have otherwise made. The influence must have been more than simple influence. The circumstances must have been such that the offender intentionally and illegally took advantage of a vulnerable testator for their own benefit.
  • Improper execution. In order for a will to be valid it must have been executed in manner that is consistent with the requirements of North Carolina law, otherwise the will would be invalid.
  • Duress. If the testator was forced to make a will by actual violence or by threats, the will would not be valid. A will must be made out of free will.

Successful will contests can result in a prior or later valid will being probated instead. A successful will contest may also result in the decedent being declared intestate. If that happens, the estate assets will be distributed to the decedent’s heirs based on North Carolina’s law of intestate succession.

Breach of Fiduciary Duty

A personal representative is a fiduciary with respect to the estate. As a fiduciary, a personal representative is required to perform their responsibilities with the utmost care, loyalty, and honesty, with the best interests of the estate in mind. If the fiduciary breaches their duty, they could face being suspended and would be held personally responsible for any losses the estate suffered. Common reasons for fiduciary litigation include improper investment, self-dealing, accounting discrepancies, or wasting estate assets.

Elective Share Disputes

In North Carolina married persons are entitled to receive a portion of their spouse’s estate, regardless of the terms of the will. The surviving spouse can choose to take an “elective share” of between 15% – 50% of the total net assets of the estate. The exact percentage depends on the length of the marriage. The spouse must make the election within 6 months of when the personal representative was appointed.

A dispute may develop if the personal representative and the spouse do not agree on the amount the spouse would be entitled to if the spouse made the election. Elective share disputes may also develop if there is a disagreement on whether the spouse made the election on time and in the manner required.

Will Construction

If there are terms of a will that are vague and open to different, contradictory interpretations, the parties may ask the court to interpret the ambiguous terms.

Creditor Disputes

In order to get paid, creditors must submit claims within the claims period. The personal representative must pay timely submitted claims, but only claims that are determined to be valid. Otherwise, the claim will be denied. If a creditor’s claim is denied, the creditor and personal representative may refer the claim to a disinterested party to settle the dispute.

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