North Carolina’s laws for filing wills are encoded in Chapter 31, Article 5 of the North Carolina General Statutes. These statutes describe who can file a will for probate in the state’s superior courts, and under what circumstances. The North Carolina court system also provides probate forms that incorporate these laws and other general rules related to filing wills in the state.
Filing as Executor
Under North Carolina law, the named executor of a will is generally the individual who must file a will for probate. In fact, for the first 60 days, the executor is the only person who can file the will. The will must be submitted along with an application for letters testamentary, which is the official document issued by the court designating an individual as the executor. The executor must file the will prior to a final account in probate of the testator’s estate, but can only file the will within two years of the testator’s death unless the will has been fraudulently suppressed, stolen or destroyed. If a court action is initiating during the time in which the will could be filed by the executor, the two-year statutory period does not commence until the resolution of that proceeding.
According to section 28A-4-2, certain individuals are disqualified from serving as the executor of an estate, but may file a will as an interested party. Anyone who is under 18, illiterate, has been adjudged to be and continues to be mentally incompetent or convicted of a felony is automatically disqualified. A nonresident of the state cannot serve as the executor without consenting to the personal jurisdiction of the courts by appointing a representative for service of process in the state. Also, individuals who have lost or renounced certain rights to property cannot serve as executor.
Any interested party to the estate can file a will for probate after the first 60 days following the testator’s death. An interested party includes anyone entitled to receive property under the will, a next-of-kin of the decedent or a creditor to the estate. If there is no qualifying executor or successor to the executor in the will, section 28A-4-1 of the general statutes details the list of priority of persons who may become executor to the estate. In the case that someone other than the executor or person of highest priority files the will, all other persons of equal or higher preference must be given notice of the filing and will be considered first by the judge when appointing the executor.
Contents of Application
North Carolina's court system provides a form that contains spaces for all the information required by law for filing a will and requesting issuance of letters testamentary. Those filing a will must include a completed copy of the form, which requires a list of all the beneficiaries to the estate and an initial accounting of the property of the estate and its estimated value. Those entitled to property under the will must be identified by name, age, address and relationship to the testator. The form also requires indication of whether there's a potential claim for wrongful death which could result in damage awards in favor of the estate. The person who files the will does not automatically become the executor; the judge may appoint an executor when the application and the will are filed.
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