Contesting a Will in NC – Testamentary Capacity
When contesting a will in NC based on lack of capacity, the general rule is: A testator-decedent has testamentary capacity if he: – comprehends the natural objects of his bounty; – understands the kind, nature, and extent of his property; – knows the manner in which he desires his act to take effect; and – realizes the effect his act will have upon his estate. This is the general rule. It means that even if someone is insane, they could still possibly have testamentary capacity. In addition, just because someone cannot read or write, they can still make a will. The...
Read MorePower of Attorney Abuse Settlement for $1.5million
NC Fiduciary Litigation Attorney, Kirk Sanders, and co-counsel, Bryan Thompson, settled a lawsuit against the power of attorney for an elderly octogenarian. The case was filed, along with discovery and a motion for a preliminary injunction to protect the assets. The case was reported in North Carolina Lawyers Weekly, September 28, 2015 edition. The elderly plaintiff had $1,000,000 in financial assets taken out of his control and name. Within 2 weeks, the power of attorney went to the plaintiff’s banks, closed all his accounts, and transferred the money to sequestered, unknown banks....
Read MoreProcess to Contest a Will
In North Carolina, to contest a will there is the following general process: 1) Caveat filing. This is the complaint to be filed by the attorneys for the caveators or challengers of the will. It’s filed in Superior Court in the county where the will was probated. This has to be filed within 3 years of the time of death/probate of will. 2) Bond paid to the clerk for the Caveat. Not a large bond. 3) Order to suspend estate except for maintenance. The Caveator’s attorney files this to be signed by the Clerk in the Estates division. Keeps the assets of the estate from being distributed prior to...
Read MoreProducing a Will in NC
Yes this does happen. You know the decedent did a will. Maybe they even showed you. But now that they died, Cousin/Sibling X went through the house and now the Will is gone. Perhaps Cousin X didn’t get exactly what they wanted in Decedent’s will. Maybe Cousin X has ulterior motives, eg. clean out the possessions beforehand or try to inherit intestate or they were disinherited. You can guess their motives. Nonetheless, not you can’t find the testator’s Last Will & Testament. In this situation, the Courts in North Carolina permit someone to file an application or an affidavit....
Read MoreEstate Challenge- failure to distribute (in NC)
One type of challenge in an estate is the failure of the Executor to carry out his or her duties. So, the will is fine, but the person fails to either 1) pay bills of the estate, 2) file accountings with the clerk, or 3) distribute assets to the beneficiaries. The basic rules in Chapter 28A require the executor (aka personal representative or administrator) to perform their duties. Below is the Statute. If you have problems with the executor failing to perform the duties, call NC Will Contest Attorney Kirk Sanders at 336-723-7200. § 28-A-132. General duties; relation to persons interested in...
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