North Carolina Estate Planning Legal Questions

Settle the estate so that the beneficiary/ies or heir/s have legal authority to do something with the land,  whatever she/they may decide.  You may be able to file Affidavits of Heirship or may need a formal court proceeding.  Discuss the situation with a local probate attorney.... Read More

If you had authority to close the business under the business's operating agreement, the success of any suit for damages based on your closing it depends on the language of the lease.  If a suit is successful, the business, not you, should pay. If you did not have authority to close the business under the business's operating agreement, you should get it once the court admits your mother's estate to probate and appoints you administrator. Hire a probate lawyer who practices in the county in which your mother lived and died to apply to be appointed and advise you on whether and when any claim should be paid.  ... Read More

Merely being diagnosed with dementia does not mean that someone does not have a lucid moment in which they can make a Will.  As you know, dementia is progressive. After someone has died, it is difficult to determine whether they were, on a certain date, so advanced in their dementia that they no longer had legal capacity to make a Will.  This is true even for someone under guardianship. Similarly, undue influence is difficult to prove. If you would like to contest the Will (which you should have done in 2019 if ever), please discuss the matter with a lawyer who practices fiduciary litigation in the county in which your father died.    ... Read More

You can pass the life insurance outside your Will by designated a beneficiary on the policy. A Will must not only be notarized but also witnessed and signed with certain required language and formalities.  Not only is this more likely to be done properly by a lawyer but a lawyer can advise you how to successfully exclude someone from inheriting and about other provisions you would be wise to have in your Will to protect your spouse and minor children.... Read More

In most states the executor is not allowed to purchase property from the estate as that would be seen as a conflict of interest.  In most states, after a certain amount of time has passed, any beneficiary who has not received a distribution can ask the court to replace the executor. In most states, a beneficiary who inherits part of a property can sue for partition, forcing partition or a sale. Contact a local probate attorney.... Read More

If a court had admitted the Will to probate (proving) and appointed your brother executor, it would be his duty to gather the assets, pay the bills and distribute the rest in accordance with the Will.  Given the time that has passed, he would probably only be able to file a distribution deed distributing the property according to the Will.  BUT it is highly unlikely that a court would admit a unsigned Will to probate.  Hire a local probate lawyer to file an application to determine heirship and issue letters of administration and settle your mother's estate.  If both your parents have died and you and your brother are the only children, half the home is yours. ... Read More

Whoever the court appoints to settle the estate has authority over the deceased's property and the duty to gather the property, pay the bills and distribute the estate according to the Will or, if there is no Will, the state's laws of inheritance. Some states allow the estate to be settled independent of court supervision if all the heirs agree,  No state allows an heir to usurp the court's authority of apppointing someone to settle the estate.... Read More

The bills must be paid by someone or the lender will foreclose. You do not state whether you are the only child or whether your mother left anything beyond the house and some belongings. Share the details with a local probate lawyer to determine whether an Affidavit of Heirship or an Application for Determination of Heirship and Issuance of Letters of Administration will pass title to the home.... Read More

The answer depends on what has happened so far. If all the estate's creditors have been paid and all of the assets distributed, you can prepare a final accounting, provide it to the interested parties, and file the necessary documents with the court to close the estate.  If any of these things haven't been done yet, you can do them and then close the estate.  If there are still assets owned by the estate that need to be sold or some other reason that the estate cannot be closed yet, you can file a request to resign with the probate court.  The court may not grant this request if there is no one else willing to serve, so it is best to have someone to take your place and include that information with your request to resign. ... Read More

The language of the Will does not control the disbursement of the life insurance proceeds under your fact scenario. The beneficiary designation on the life insurance policy controls who receives the life insurance proceeds. In other words, under your fact scenario, the beneficiary designation on the life insurance trumps the language of the Will.... Read More

Based upon your description, it appears that you and your daughter own the property as tenants in common. If one tenant in common (your daughter) refuses to sell the property, then the other tenant in common (you) can file a petition to partition with the Clerk of Court to sell the property. The Clerk of Court will order it sold.... Read More