Lis Pendens NC & freezing estate assets

Posted on Nov 2, 2016 in Contesting a Will, News, trust litigation NC, will contest attorney NC

Lis Pendens is one of the more important filings in a Will Contest or Fiduciary Litigation in North Carolina (NC). Lis Pendens roughly means ‘litigation pending’ and puts persons on notice that the real estate involved in the estate, trust or fiduciary matter is part of a lawsuit. In North Carolina litigation matters, this is an extremely powerful tool. Without the lis pendens, it’s possible for real estate that could be brought into the case gets transferred.

One of the main questions to be asked before pursuing an estate litigation claim is whether there are still assets around to collect against if the trial is won. If not, then why even pursue the case.

What do I mean? In law school they only taught students about winning the case. We assumed that when you won they would pay (similar to the ‘if you build it, they will come’ which of course comes from a movie and is fiction). Well, there’s a whole battle after that, it’s post judgment collections. You see, most people who lose a court case and owe money are not happy. They rarely whip out the checkbook and pay the amount owed without some additional prodding.

That’s where Lis Pendens are helpful. Why?

#1 it freezes the asset and in essence restricts its transfer. If anyone takes title to the property after the Lis Pendens is put on record, they’ve bought or received questionable title. The plaintiff in the case is going to challenge that transfer.

#2 Real estate is usually a valuable asset. Freeze that and you have a good chance at collecting.

#3 For Lis Pendens to be effective the litigation needs to effect that real property

In a will contest, estate litigation or trust litigation matter, more than likely real property is going to be involved. The decedent is going to be passing real estate in the matter. By filing a lis pendens, the other party can’t transfer or borrow money against the property, thus freezing up one of their assets until the case is resolved.

For more about fiduciary litigation matters, contact Kirk Sanders at 336-724-4707. Mr. Sanders case load is primarily estate and trust litigation related. He started off the year 2016 winning a will caveat case in Surry County (Mt. Airy, Dobson, Elkin) that was over $1,000,000 in value. The fiduciary litigation attorney represented the propounder (defender of the will) in that case. Over the course of 2016 he has handled to completion, 2 more will caveat cases for the caveators (challengers of the will) in Wake County (Raleigh NC) and Forsyth County. In one case he collected payment and in the other payment is en route. In addition, He won a constructive trust, resulting trust, equitable lien court case in Davidson County, and also settled a challenge to a beneficiary designation of retirement and brokerage accounts case in Forsyth County (Winston-Salem, Kernersville, Clemmons, Lewisville). Kirk Sanders is an estate litigation attorney NC.

A lis pendens in North Carolina, pursuant to NCGS 1-116 must contain 1) the name of the court where the action is pending, 2) names of the parties to the court case, 3) the nature of the action – court case, and 4) description of the property. It has to be served pursuant to Rule 4 of the Rules of Civil Procedure (same as a complaint). Best practices would be to serve simultaneously with the complaint and summons.

Many of Kirk Sanders cases are referrals from other attorneys. Referral arrangements are available.

Estate Dispute? Trust Dispute? Call 336-768-1515