North Carolina Estate Planning Legal Questions

You are going to need to hire an attorney . . . period, end of the story. You now have a "cloud" on the legal title to your property. You need to file a lawsuit to remove the cloud on your title and/or for the court to effectively declare ownership of the land in dispute. This will not be an inexpensive endeavor. However, it must be done or his deed can become effective through "color of title". This litigation is not something that you can handle on your own, unfortunately. I would strongly urge you to find the resources necessary to hire an attorney and proceed with a court action in the very near future. I would also warn you that not many attorneys handle these type of court actions. I would venture that a significant majority of attorneys have never dealt with a "cloud on title" court action. Thus, you need to search carefully for an attorney experienced in such land litigation issues.... Read More

There is no express time limit. However, the Clerk of Court generally wants an explanation of why an estate administration is not complete after one year. Also, a petition to remove an executor can be filed at any time for wrongdoing or for failure to meet the duties required of the executor.... Read More

I am not sure what you mean by "copy never signed". However, in general terms, you cannot simply apportion the house to equalize the debt owed by your brother unless your brother agrees. Depending on the terms of the Will, the house transfers to the heirs outside of the Estate. Thus, it takes the agreement of all heirs to apportion the house other than equally. If your brother will not cooperate, then it is a mess because the Estate may have to sue him if there are not other assets (other than the house) to equalize the debt he owes.... Read More

I am not exactly sure of your question. At one point you say the house/two acres is landlocked and then you say there is an easement. If there is a valid easement, then they have the right to go across your property (over the easement area) to get to the house/two acres. Are you trying to say they are leaving the two acres and the easement area and going onto the 14 acres and/or the surrounding 300 acres? If so, this would be trespassing. You can pursue trespassing civilly or criminally. In both cases, I would suggest that you have an attorney write them a letter advising them to stay off your property. It would be best if you can get your brother to agree to send the letter, too, so that the attorney can say he is writing the letter on behalf of both of the adjoining property owners. Once they are warned and then trespass again, you can proceed with your trespassing claim/charges. It might also make sense to mark your property lines with purple paint which is allowed to deal with trespassers.... Read More

You can go to the Clerk of Court's office where he lived and open an intestate estate for him, which means an estate with no Will. The person who opens his estate is appointed as administrator. The administrator is given Letters of Administration which give the power to administer his estate. You then will have the authority to claim his assets and distribute the assets to the rightful heirs after paying any creditors and the cost of administration.... Read More

You have not given enough facts for an exact answer . But one possible angle is to go to the Clerk of Court and effectively get the vehicle assigned to you as partial reimbursement of the funeral expenses . Assuming you did pay for the funeral with your own funds. You will need proof that the funeral is paid and that you paid it. Most Clerks of Court will walk you through the process with a small estate.... Read More

I assume you are referring to your husband. Some companies require the spouse (you) to sign off on certain pension elections such as the election to forego a reduced death benefit for a surviving spouse. I cannot tell from your question if you are separated. If you are separated, then you need to get to a family law attorney as soon as possible. I believe that some payment elections made at the time of retirement can be modified within a relatively short period of time after leaving your employment, others are non-modifiable. If he forged your name, then hopefully you will have a remedy. Either way, it sounds like you need to see a family law attorney. To hopefully answer your question, if he (lawfully) elected to receive a full pension with no survivor benefits, then you will get nothing at his death. But, you do have rights upon separation and divorce which often differ from your rights at death.... Read More

Not 100%, no. Your husband is being foolish, especially if he "hates" the children as you seem to indicate. I am assuming that you and your husband reside in NC. If that is the case, then the law provides that where someone dies intestate, i.e. without a will, that their property goes to their surviving spouse and children (assuming there are 2 or more children). The spouse inherits 1/3rd of the land, 1/3rd of the personal property and the first $30,000/$50,000 and the children inherit the rest. It depends of course on what you and your husband own and how it is titled. If your spouse intends to disinherit his children (which he is perfectly free to do) and have you inherit everything then your spouse absolutely needs to make a will. He (and you too) need financial and health care powers of attorney as well as an advance directive in addition to wills. If you and your husband live in another state, most states have provisions similar to NC in that the assets will be left to the spouse and children if there is no will. If there are 2 or more children, then the assets go 1/3rd to wife and 2/3rd to children. Of course, you should consult an estate planning attorney in the county/state where you reside for more specific advice about your situation.... Read More

If your brother is buying your half of the property then he has to get his own attorney. A new deed is drafted conveying the property from you to him but you retain a lien on the property. This way, your brother will own the property and he will be responsible for insuring it, paying the taxes and paying you. If he stops paying you or stops paying the taxes, the property can be foreclosed on. Otherwise, the property will stay in your name and you will be liable for the taxes and insurance. You would need an agreement where you charge your brother rent to cover taxes and insurance and something towards the purchase price - it would be a land sale installment contract. The agreement would provide that when the property is paid for then it will be conveyed into your brother's name. You would be well-advised that if you are going to do something sophisticated like this then you need a real estate attorney to draft it for you. Unless there is some reason why this cannot be in your brother's name now, then he needs to get a real estate attorney to draft the deed and you should get an attorney to do the owner-financing/lending docs so that the property can be conveyed now to your brother but you will have a valid deed of trust/lien on the property so that you can foreclose if he fails to make his payments.... Read More

Yes. Your brother can transfer his interest in the property to you by quitclaim deed assuming that the administration of the estate has been completed and all debts are paid. I don't know what the property is worth but your brother may have gift taxes if his share of the property is worth more than $13,000. So he may want to consult his CPA about that. By transferring the property to you he will be deemed to make a gift to you. If the estate is still open and its been less than 9 months since your aunt died, your brother could also file a renunciation/disclaimer. In that case, he will be treated as if he died before your aunt and you would have to look at what her will says if someone predeceased her. If the property would be going to you then the renunciation/disclaimer would be the way to go. Have an attorney draft this for your brother.... Read More

You leave a lot out here. First, who is "she"? Who died? Your sister? When? Where did she live at the time of her death? NC? Somewhere else? Where is the real property at which you own jointly with the dead person? What does the deed say to the real property about who owns it? There are several possibilities here. Assuming that you owned the land jointly with your sister with a right of survivorship (the deed has to list you and your sister, as joint tenants with right of survivorship) then the land automatically passed to you as of the moment of death. In which case the land is all yours. If you and your sister did not own the land as joint tenants with a right of survivorship, then your sister's 1/2 of the land must go through probate. An estate will need probated for your sister in the county/state where she lived at the time of her death. If the land is located in another state, then an ancillary estate may need opened in the state where the land is located too. A personal representative (called an administrator since your sister had no will) will have to apply to the court. The personal representative's job will be to figure out what your sister owned and owed, pay off her debts and distribute what is left to her heirs. The sister's heirs would be a spouse, children or lineal descendants (grandchildren, great-granchildren); if none. then your parents if they are living; if there is no spouse, children or parents, then siblings. How many siblings are there other than you? Are there any dead siblings and did they have children? If so, they may share too. You mention that you loaned the sister money. if so, you will file a claim with the estate once its opened. How much is your sister's share of the land worth? Since you are owed money, the estate would have to pay your claim out of the assets. Depending on what the sister's share of the land is worth (assuming there is no joint tenancy with right of survivorship), the logical thing might be to sell your sister's 50% of the land to you for whatever its worth minus any monies owed to you by your sister. You mention that your sister died without a will. So what "agreement" could there be? Unless you have something in writing then any verbal agreement is not going to be enforceable as to how your sister may have wanted the land to pass. I do not know why people do not make wills but come up with all these creative ways to dispose of assets. Where land is concerned, creative agreements do not work. There has to be a writing and if people are disposing of assets in contemplation of death, that writing is called a will in most cases. So unless there is some kind of written agreement then whatever was supposedly "agreed" by your sister is a nullity. A promissory note is just a promise to pay money - it usually does not operate as a will to transfer an interest in property. If you are the best person to be the administrator of the estate, then you need to consult with a probate attorney who practices in the county/state where your sister lived at the time of her death. If someone else is the personal representative, then you need to find out (a) how the land was titled (check at the register/recorder of deeds in the county where the land is located and get a copy of the deed) and (b) file your claim for repayment of the loan with the estate and with the administrator. It still may be necessary to get your own probate lawyer if you are having difficulty communicating with the estate attorney or the administrator.... Read More

What you propose will be a nullity and it will be as if you died with no will at all. Georgia does not recognize these kinds of wills. To be valid in Georgia, a typed or printed will MUST be signed by you, the testator and witnessed by 2 persons who are not beneficiaries under the will. To be self-proving (meaning that your executor will not need to get the witnesses when the will is probated), your and the witnesses' signature has to be notarized. Georgia is very strict about the witnesses and you all signing in front of each other. There are obvious problems with you drafting your own will - you may have conflicting information or you may not take into account things that a lawyer would know to look for. Wills are much more affordable than you think. Failing that, I would recommend a do-it-yourself-will kit from one of the online vendors. I do not endorse these as they contain errors but its better than nothing. And you still can mess this up if you do not have it witnessed correctly. I strongly suggest that you consult with me or another local attorney if you need your will done. In addition to your will, you should have a financial power of attorney, health care power of attorney and a living will/advance directive. You can do what I call "poor man's" estate planning to avoid the need for probate. Retirement and life insurance are non-probate assets that pass outside your will provide that there is a named beneficiary for these things. So if you know who you want to receive your life insurance and retirement, make sure that you name a beneficiary and a backup just in case. Monitor these things so that if a beneficiary ever dies before you, you can revisit the beneficiary designation and name someone else. Either have another co-owner of a checking account or make it a POD (payable on death) account. That way, any money in the bank will also pass outside of probate to the named beneficiary. You have a car and that is problematic and will require a will unless you dispose of the car prior to your death. Personal items are always a big issue, particular items of no value other than sentimental. If you have 2 or 3 potential heirs, there is bound to be a fight over this unless you name one person as executor and either give him/her sole discretion or you provide some mechanism as to how this will be distributed among your heirs. If you die without a will, then your property will pass to your heirs under the state intestacy laws. Your heirs under the intestacy law may or may not be the people you would want to inherit. The preference under the laws is: (1) spouse and children or lineal descendants (grandchildren etc.); (2) parents if no spouse, children or lineal descendants; (3) siblings if parents are deceased; (4) nieces and nephews. If you wish to disinherit anyone then you definitely need a will. Again, please see an attorney. Don't do this on your own.... Read More

There are a number of things which you may wish to consider before spending money to speak to an attorney, such as whether there was anything in writing that promised the item to you, whether you have offered to purchase the item from the cousin, whether your mother received any money or thing of value for giving the dipper, whether you received any other items for which you could trade,the cash value of the item, how much you might spend on legal fees, whether it would make sense to bring in a mediator.... Read More

No. Since your father is alive, your father (and your mother) would be the heirs for your deceased brother. Being a guardian/conservator does not give people rights of inheritance. A guardian is appointed to care for the person if someone cannot manage his/her personal needs. A conservator manages the money or property for the incapacitated person. When the incapacitated person dies, then the person's property is distributed by the terms of their will. if any, or the state intestacy laws of the state where the incapacitated person lived prior to death. Usually, if the person had no spouse, children or lineal descendants (grandchildren, great grandchildren) then their property goes to their parents, if living. Only if both parents are dead would the siblings inherit. The duties of the conservator would be to turn over any assets to the personal representative of the incapacitated person's probate estate. In this case, your father would probably be the best person to assume that role and he would just change hats. You mention SC - I am not licensed to practice in SC. I am licensed in NC. Your father, since he is conservator, really needs to speak with a probate attorney to find out his responsibilities.... Read More

Not generally. Cars can be transferred to the surviving spouse as part of the spousal allowance, but there is no spouse here. There is also more than one heir. Claims of creditors also are a concern here. There is a big problem if your mother had debts.Creditors must be paid before the heirs get anything and the only way to ensure that the creditors' issues are resolved are to go through probate or else you will be exposing yourself to a lawsuit. Where you live is not relevant. You do not indicate where your mother lived at the time of her death. It matters because each state has its owns mechanisms for probate. Most states have simplified estate procedures for very small estates (under $10,000). All of the the other heirs cannot just agree. They can renounce any interest they would have in the probate property but that would leave open that their interest would pass to their children, not your sister. They also could wait till probate was through and make a gift to your sister. The proper thing here would be to probate the estate and have your sister pay the estate for the van. You want to probate the estate because you will send notice (both personal and notice published in the newspapers). If proper notice is given, it would cut off any rights of creditors if they do not timely file a claim. The money would then be available to pay probate and funeral costs and if there is anything left (which is doubtful) the personal representative simply denies any claims that are filed because there are no assets left. I find it somewhat hard to believe that the only thing your mother had was a car. Where did she live? Did she rent? Own any land or have an interest in land? What about a bank account? Was it a joint account? What about personal property? Clothes, furniture, appliances or jewelry? Those are all probate assets even if not worth a whole lot. What about non-probate assets? Life insurance? Retirement? I suggest that you consult with a probate attorney who practices in the county/state where your mother lived at the time of her death and pay the lawyer to review everything here. You do not need to hire a lawyer for the probate but consulting with a lawyer for an hour will help you understand the process and what has to be done. Failing that, I would talk to the clerk of the probate court for the county where the estate will be probated. Most clerks are helpful and have the necessary forms and will be able to tell you if the small estate process is available to you. Further, fees are not all that much for probate. Fears of probate have been over-hyped by trust mills seeking to profit off the fear. Probate is not all that bad in NC and GA.... Read More

You do not indicate relevant details. I assume the estate for your mother was completed. However, estates can be re-opened if needed. Was the will drafted by an attorney? Did it contain a "residue" clause if so? Also, if there are oil and gas rights then those may be connected with ownership of land. Who owns the land? Have the mineral rights been severed or are they still a part of the land? Who owns the land and how is it titled? That may give you a clue. What does mother's death have to do with grandmother? Is grandmother still alive? Where did mother mother live at the time of her death? What about grandmother if she died too? Your question presents numerous scenarios and without reviewing the relevant documents its very difficult to answer. Assuming mother died prior to grandmother, mother's assets are distributed as per mother's will. If grandmother is also now deceased, did she have a will? If so, what does it say? If the land is bequeathed to a beneficiary then that beneficiary would get the mineral rights. If there is no will or no mention of mineral rights, then grandmother's interest will pass to her heirs under the intestacy law, which would be her children. Since mother died, mother's share will pass to mother's children. Thus, grandmother's 3 living children and mother's children would inherit and mother's children would divide her 1/4 share up equally. However, this assumes further that grandmother owned the land as well as the mineral rights. This is not always the case and review of the deeds would be necessary as well as to do a title search of the property to ensure that the mineral rights were not separated and sold to someone else. If so, then that person or entity would own the mineral rights. If mother died after grandmother then mother's share of any inheritance from grandmother would pass as per mother's will. If there is a residue clause, it would pass as per the residue clause. If there is no residue clause, then it would pass as per the intestacy laws of the state where she lived at the time of her death to her spouse, if any, and children. As I said, it is impossible to know which of these scenarios will apply without review of the actual documents. My advice would be to get the deed to the real property and get the will for mother and grandmother (if she is deceased) and take to a probate lawyer in the county where the estates were probated. You may also need a real estate lawyer in PA who practices in the county where the land is located to do a title search and make sure that the mineral rights are owned by the same person who owns the surface rights and title to the land. Pay the probate lawyer to review this information and advise as to who gets what.... Read More

No. If you are the named beneficiary, then you are free to use the money as you wish. The personal representative of the deceased person's estate must pay the estate debts out of the probate assets. If there are not enough assets, then claims are paid in order of priority; first funeral expenses (up to $3500), IRS debts, hospital debts incurred in the last 12 months of death and then everything else. If money is exhausted by the IRS and medical debts then the personal loan creditors get nothing. If there is enough assets, then the creditors get paid before the heirs get anything. Life insurance though is a non-probate asset so it is outside the reach of creditors' claims.... Read More

You do not provide many details. First, how was the land titled? Since your mother was married, but had a spouse, was it jointly owned by your mother and her husband as husband and wife or as a joint tenancy with right of survivorship? If you don't know, then get a copy of the deed and read who is listed as the grantees. Is it just your mother or mother and her husband? It makes a difference. Land may or may not be a probate assets. If land is owned by a husband and wife as a tenancy by the entireties (recognized by most states) or as a joint tenancy with right of survivorship (recognized by some states), then the land automatically passed to the husband as of the moment of your mother's death. If the land was solely owned by your mother, then the question is, did she have a will? If yes, then the land will pass as per the will. The personal representative would issue an executor's deed possibly to the beneficiary of the property. The regular estate in NC may need re-opened and an ancillary estate probated in the county in TN where the land is located. If there is no will, then the land automatically passed to your mother's husband and your mother's children (1/3rd to husband and 2/3rd to the children). There is no real need to re-open the estate, provided that all can agree on what is to be done with the land. If the husband is not concerned about the land, perhaps one or all of the children can buy out the husband's share. If the land is going to be sold, if all the children and husband can agree then they would just sell it. I am assuming that the estate for your mother has already been probated and all debts of the estate, if any, were paid. If for some reason there is a debt and the claim on it has not run and there are assets, then the estate may need to be re-opened, the personal representative can sell the land and pay the debts and distribute what is left to the heirs/beneficiaries. If you have any questions, then I suggest that you consult with a probate attorney who practices in the county where the estate for your mother was probated and see what he/she says. If there was no estate probated for your mother and 3 or more years have elapsed, then all claims would be barred anyway and there may be no need to probate an estate at all. But the husband still owns 1/3rd of the land and the children and spouse need to either sell the land or the children should buy out the share of the husband and then do what they want with the land.... Read More

I am sorry for you loss. Any one of the children can apply to open the estate and seek to be the administrator of your father's estate. That person must reside in Ohio and be able to qualify for a bond. Also, either the other siblings must agree to the appointment or it will be set for hearing and decided at that time. Depending on the size of the estate, you will either need a full estate or if a smaller estate, may be able to file an application for release of assets.... Read More

No. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. However, North Carolina can be a quasi-community property state for estate purposes. If the spouses lived in a community property state listed above and sold the community property and bought it in NC and then one spouse died, the laws here would treat any property acquired with community assets as community property. For divorce purposes though North Carolina is an equitable distribution state. Why are you asking?... Read More

If a FiFa (short for fieri facias - Latin for a writ of execution) was issued, that means a judgment was issued against your mother. A FiFa suggests this is in GA. In GA, judgments can be renewed for 7 years. Judgments never go away; the 7 years just means that it can be enforced if renewed. Your mother has handled this badly from the get go. Whether a car is surrendered voluntarily or not, its still treated as a reposession which means that your mother is still liable for the balance remaining on the car. Since a judgment was entered, the judgment has gotten bigger because judgments earn interest at roughly 7% per year. And I do not know why your mother who had a judgment against her chose to put land in her name. She has now placed the land at risk of seizure depending on its value and if it is owned free and clear or not. Your mother, if she were alive, would have the following options: (1) she can file bankruptcy if she has a lot of debts; or (2) she can try to resolve this judgment by either paying in full or settling. Since your mother is now deceased, an estate must be probated for your mother and you or some sibling would be the personal representative. The judgment is a debt of your mother's estate and must be settled or compromised. I don't know how the land was titled, but if it was solely in your mother's name, the judgment is going to have to be resolved before the land can be transferred into the names of the heirs. You should do now what your mother should have done years ago and get a probate lawyer. The lawyer will need to review the documentation pertaining to the lawsuit as well as the estate documents (a will if any), deeds to land to see how they are titled and so on. You or someone will have to be appointed as the personal representative of your mother's estate and probate procedure will have to be followed. The personal representative's duties, in a nutshell, are to find out what your mother owned, what she owed, to pay off her debts and to distribute what is left to the heirs/beneficiaries. To help the lawyer get started, I would contact the court in the county where the judgment was entered and make a complete copy of the court file, including the summons and return of service, complaint and any attachments, motion for default/summary judgment, entry of judgment, and attempt to execute on the judgment (motions to renew the judgment or issuance of the FiFa). Since your mother has a car repo, she may have other judgments against her as well. I would search the court records in all counties where she lived or owned property. Get a copy of the deeds to any land owned by your mother either jointly or by herself. Find out what the land is worth, how it was titled and if it was encumbered by a mortgage or home equity loan or any other kind of lien (like this judgment). I am guessing that your mother did not have a will, but if she did, then get the will. If she did not have a will, then make a list of all of your mother's children and whether she had a living husband to whom she was still married at the time of her death. Take all of the information to a probate attorney who practices in the county where your mother lived at the time of her death. Pay the lawyer to review all of the information and see which way you need to go here. Bankruptcy is not an issue but the judgment debt probably can be settled depending on what the property is worth and if its encumbered and what other debts there are of higher priority.... Read More