1
© 2012 School of Government. e University of North Carolina at Chapel Hill
NO. 1 | DECEMBER 2012ESTATE ADMINISTRATION BULLETIN
Estate Proceedings in North Carolina
Ann M. Anderson
Introduction
In addition to their many other duties, North Carolina’s clerks of superior court have wide-
ranging judicial responsibilities.
1
One of broadest areas of their judicial authority involves
estates of the deceased: clerks have long been North Carolina’s ex ocio judges of probate. In
that role, they have exclusive jurisdiction to oversee the administration of North Carolina’s
decedents’ estates. In the course of an estate’s administration, it is common for conicts or
questions to arise that can—and often must—be answered or resolved by the court. For most
such matters, that “court” is the clerk.
2
e questions that come up during estate administration cover a wide range of topics. For
example, the parties may disagree as to who will be named the estate’s administrator or whether
that administrator may sell estate property. ey may contest the amount of a spouse’s elec-
tive share of the estate, whether a closed estate may be reopened to deal with new issues, and
any number of other issues in between. ere is no statutory list that attempts to cover every
possibility; the scenarios vary according to the situations the decedents leave behind. Recently
the General Assembly made signicant changes to the statutes governing decedents’ estates.
ese amendments included an eort to capture the range of contested estate issues into
a general, dened category and to set rules to govern them. e new legislation designates
these matters as “estate proceedings” and goes on to specify the procedures that apply to their
Ann M. Anderson is a School of Government faculty member specializing in civil procedure. is bul-
letin was originally published as Administration of Justice Bulletin Number 2012/04, December 2012
1. Clerks have authority to hear and make determinations on an array of matters, spanning substan-
tive areas as diverse as partitions of land, appointment of guardians for incompetent adults, and real
estate foreclosures, to name a few. e matters that come before a clerk essentially fall into three catego-
ries: civil actions, special proceedings, and—broadly stated—estates.
is judicial authority is held by the 100 elected county clerks of court. e assistant clerks of superior
court also are statutorily authorized to conduct hearings and perform related judicial functions, and “any
act of an assistant clerk is entitled to the same faith and credit as that of the clerk.” Section 7A-102(b) of
the North Carolina General Statutes (hereinafter G.S.); see also G.S. 28A-2-2 (“An assistant clerk . . . shall
have jurisdiction as provided by G.S. 7A-102”). Deputy clerks, on the other hand, are not authorized to act
as hearing ocers. Id. § 7A-102(b). In many counties, elected clerks often must delegate hearing authority
to assistant clerks, many of whom become specialized in handling specic types of hearings.
2. is jurisdiction is quite broad and also includes adjudication of matters related to testamentary
trusts, estates of minors, and estates of persons who have been adjudicated incompetent. is bulletin,
however, focuses specically on proceedings related to decedents’ estates.
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© 2012 School of Government. e University of North Carolina at Chapel Hill
adjudication—from ling to litigation to hearing to appeal. is bulletin discusses the new
procedural framework for contested estate proceedings.
3
e legislative amendments that created this new structure were eective January 1, 2012,
and they apply to estates of decedents dying on or after that date.
4
It should be noted, then,
that matters arising in estates of decedents dying prior to January 1, 2012, are governed by the
General Statutes as they existed prior to the eective date of the new legislation.
Clerks’ Jurisdiction over Estate Proceedings
Original and Exclusive Jurisdiction
As judges of probate, clerks of superior court have long held original, exclusive jurisdiction over
estate administration.
5
Within the wide scope of this jurisdiction, clerks have long been autho-
rized to adjudicate conicts among the interested parties—including those issues now dened
as “estate proceedings.” In 2011, the General Assembly amended G.S. Chapter 28A to provide
that the clerk’s probate jurisdiction “includ[es], but [is] not limited to, estate proceedings,”
6
which are dened as “matter[s] initiated by petition related to the administration, distribution,
or settlement of an estate, other than a special proceeding.”
7
“Original” jurisdiction means that a proceeding must be initiated with the clerk in order for
the North Carolina courts to have jurisdiction over it—it cannot be brought before a superior or
district court judge or before any other division of the court.
8
Except for a few categories dis-
cussed below, the clerk’s original jurisdiction over estate proceedings is also “exclusive”—that is,
the proceedings must remain with the clerk and cannot be transferred to a superior or district
3. is bulletin does not discuss estate administration generally. For information about the
complex law of estate administration in North Carolina, clerks, judges, court personnel, and others are
encouraged to consult J G. B A M. A, N C C
S C P M (2d ed., Chapel Hill: UNC School of Government, December
2012), which includes legislative changes from the 2011–2012 session of the General Assembly.
Practitioners and others seeking specic guidance on estate administration are also encouraged to
consult N.C. B A’, N C E A M (Supplemented 7th ed.
2010/2012), and, generally, J B. ML J. R T. B, W W
A E N C (4th ed. 2011).
4. See S.L. 2011-344.
5. G.S. 7A-241 provides that, “[e]xclusive original jurisdiction for the probate of wills and the admin-
istration of decedents’ estates is vested in the superior court division, and is exercised by the superior
courts and by the clerks of superior court as ex ocio judges of probate according to the practice and
procedure provided by law.” Although this statute provides that jurisdiction is vested in the “superior
court division,” G.S. 28A-2-1 species that the clerk is given exclusive original jurisdiction over estate
administration. See also In re Estate of Longest, 74 N.C. App. 386, 390, 328 S.E.2d 804, 807 (1985).
6. G.S. 28A-2-1.
7. Id. § 28A-1-1(1b). e General Statutes further provide that “[t]he clerks of superior court of this
State, as ex ocio judges of probate, shall have original jurisdiction of estate proceedings.” Id. § 28A-2-
4(a). e distinction between estate proceedings and special proceedings is discussed infra in the text
beginning at page 3.
8. In re Estate of Adamee, 291 N.C. 386, 398, 230 S.E.2d 541, 549 (1976).
Estate Proceedings in North Carolina 3
© 2012 School of Government. e University of North Carolina at Chapel Hill
court judge.
9
In proceedings over which the clerk has exclusive jurisdiction, the clerk “shall
determine all issues of fact and law.”
10
Estate Proceedings versus Special Proceedings
As noted above, “special proceedings” are specically excluded from the denition of “estate
proceedings.”
11
Special proceedings are a statutory category of matters brought and heard
before the clerk that generally are in the clerk’s exclusive jurisdiction.
12
A number of issues aris-
ing in the course of estate administration are designated by statute as special proceedings rather
than estate proceedings. e clerk’s exclusive jurisdiction over these special proceedings is not
aected by the creation of the statutory category of estate proceedings.
13
Most of these special
proceedings are designated as such both for hearing and appeal purposes, but a few are included
as special proceedings in a more limited manner. e following are examples:
• Assignment of year’s allowance (appealed as special proceeding)
14
• Assignment of year’s allowance of more than $20,000
15
• Revocation of letters (heard as estate proceeding; appealed as special proceeding)
16
• Resignation of personal representative (heard as estate proceeding; appealed as special
proceeding)
17
• Proceeding against unknown heirs of decedent before distribution
18
• Sale of land to create assets
19
• Proceeding for sale, lease, or mortgage of real estate for payment of debts
20
• Surviving spouse’s right to elect a life estate (heard as special proceeding; appealed as estate
proceeding)
21
9. G.S. 28A-2-4(a). is statute sets out three categories of proceedings within the exclusive jurisdic-
tion of the clerk, but it also makes clear that the exclusive jurisdiction of the clerk is “not limited to” these
matters. e issues that may arise within the clerk’s exclusive jurisdiction are many, and thus the three
listed categories, while broad, are best seen as common examples rather than as exhaustive categories:
1 Probate of wills;
2. Granting and revoking of letters testamentary and letters of administration, or other
proper letters of authority for the administration of estates; and
3. Determination of the elective share for a surviving spouse as provided in G.S. 30-3.
G.S. 28A-2-4(a)(1)−(3).
10. Id. § 1-301.3(b).
11. Id. § 28A-1-1(1b).
12. Special proceedings vary in subject matter from adoptions to legitimations to name changes to
land partitions. For an outline of the clerk’s judicial authority over special proceedings, including a more
comprehensive list of designated matters, see B A, supra note 3, at Chapter 100,
“Introduction to Special Proceedings.”
13. G.S. 28A-2-5.
14. Id. §§ 30-15 through 30-25.
15. Id. §§ 30-27 through 30-31.2.
16. Id. §§ 28A-9-1 through 28A-9-7.
17. Id. §§ 28A-10-1 through 28A-10-8.
18. Id. § 28A-22-3.
19. Id. § 28A-17-1.
20. Id. § 28A-15-1.
21. Id. § 29-30.
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© 2012 School of Government. e University of North Carolina at Chapel Hill
General procedures for special proceedings are set out in G.S. 1-393 to 1-408.1. e North Caro-
lina Rules of Civil Procedure apply to special proceedings unless the specic governing statutes
provide otherwise or the rules conict with G.S. 1-393 to 1-408.1.
22
Appeal of a clerk’s order or
judgment in a special proceeding is to the superior court de novo, and the procedure is governed
by G.S. 1-301.2.
Transfer of Estate Proceedings
While most estate proceedings remain in the clerk’s jurisdiction from ling to nal order,
23
a
long-standing exception requires transfer of estate matters when clerks have certain conicts
of interest.
24
After the 2011 amendments, G.S. Chapter 28A now also sets out a list of proceed-
ings that may be transferred to superior court even in the absence of such a conict. e listed
proceedings are, therefore, within the clerk’s original—but not exclusive—jurisdiction. e list
includes proceedings to
• Ascertain heirs or devisees;
• Approve settlement agreements pursuant to G.S. 28A-2-10;
25
• Determine questions of construction of wills;
• Determine priority among creditors;
• Determine whether a person is in possession of property belonging to an estate;
• Order recovery of property of an estate in the possession of third parties; and
• Determine the existence of any immunity, power, privilege, duty, or right.
26
In these proceedings,
[a]ny party or the clerk of superior court may le a notice of transfer of a
proceeding pursuant to this subdivision to the Superior Court Division of the
General Court of Justice as provided in G.S. 28A-2-6(h).
27
e statutory requirements for ling and service of transfer must be met in order for trans-
fer to be eective. Time limits apply to both the parties and the clerk. A party seeking transfer
must serve a notice of transfer within thirty (30) days after being served a copy of the pleading
requesting the relief.
28
If a party fails to timely serve a notice of transfer, the party waives any
objection to the clerk’s exercise of jurisdiction over the proceeding.
29
If the transfer is pursuant
22. Id. § 1-393; Id. § 1A-1, Rule 1.
23. Appeal of an estate proceeding is to the superior court; this topic is discussed in greater detail
infra pages 15 through 18.
24. G.S. 7A-104(a), (a1). In qualifying conict situations, a party may move either to have the mat-
ter heard by a clerk in an adjoining county in the district or by a superior court judge in the appropriate
district. Id. § 7A-104(a2).
25. See the section titled “Settlement,” infra page 14.
26. G.S. 28A-2-4(a)(4). Accordingly, “[e]xcept as provided in subdivision (4) of [28A-2-4(a)], the juris-
diction of the clerk of superior court is exclusive.” Id. § 28A-2-4(a). When an estate is transferred to
superior court, the clerk’s exclusive jurisdiction over the matters set forth in G.S. 28A-2-4(a)(1)–(3) (non-
tranferrable issues) is not stayed unless so ordered by the superior court. Id. § 28A-2-6(i). is is true
notwithstanding the consolidation and joinder provisions discussed infra page 5. Id.
27. Id. §28A-2-4(a)(4).
28. Id. § 28A-2-6(h).
29. Id.
Estate Proceedings in North Carolina 5
© 2012 School of Government. e University of North Carolina at Chapel Hill
to the clerk’s motion, the clerk must serve the notice of transfer (1) prior to or at the rst hearing
duly noticed in the proceeding and (2) prior to the parties’ presentation of evidence (including in
a hearing at which the clerk orders a continuance).
30
Once a transfer is led and served, the clerk shall transfer the proceeding.
31
e rules and
procedures of the superior court apply to the matter once it is transferred.
32
Nevertheless, the
clerk retains authority to make whatever orders are appropriate to protect the interests of the
parties and to avoid unnecessary cost or delay.
33
e clerk also, of course, retains exclusive juris-
diction over the underlying administration of the estate, and he or she therefore continues to
have authority to ensure the administration proceeds according to the requirements of law.
In addition, the General Statutes allow for transfer of declaratory judgment claims. If a party
to an estate proceeding requests declaratory relief under the general declaratory relief statutes,
34
either party may, but is not required to, move for a transfer of the proceeding to the superior
court, as provided in G.S. Chapter 7A, Article 21.
35
Consolidation and Joinder
In addition to providing for transfer of certain types of estate proceedings, the 2011 legislative
changes also allow certain matters to be consolidated or joined with related civil actions led
in the superior court. When an estate proceeding before the clerk and a civil action before the
superior court involve a common issue of law or fact, the superior court may order the matters
consolidated in the superior court. is consolidation may be done “upon the court’s motion or
motion of a party to either the estate proceeding or the civil action.”
36
Once the judge enters a
consolidation order, jurisdiction for all matters pending in the estate proceeding and the civil
action “shall be vested in the superior court.”
37
Further, in any civil action before the superior court, the party asserting a claim for relief may
join as many claims, legal or equitable, as the party may have against the opposing party, even
if such claims are otherwise within the clerk’s exclusive jurisdiction.
38
When the court orders
either joinder or consolidation of an estate proceeding, the clerk or judge may make appropriate
orders to protect the interests of the parties and avoid unnecessary cost or delay.
39
No Jurisdiction
e clerk’s jurisdiction over estate-related conicts is very broad, but some limitations should
be noted. While the 2011 legislation codied these exclusions into one new statute, the catego-
ries set out in this statute should not themselves be seen as new exceptions, as they are found in
30. Id.
31. Id.
32. Id. (“e proceeding after the transfer is subject to the provisions of the General Statutes and to
the rules that apply to actions initially led in the court to which the proceeding was transferred.”)
33. Id. § 28A-2-6(i).
34. See id. Chapter 1, Article 26.
35. Id. § 28A-2-4(b). In particular, G.S. 7A-258 and 7A-259 govern the procedure for motions and
orders to transfer matters to a proper trial division.
36. Id. § 28A-2-6(f). It is unclear if the motion of the “court” may include a motion by the clerk.
37. Id.
38. Id. § 28A-2-6(g).
39. Id. § 28A-2-6(i).
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© 2012 School of Government. e University of North Carolina at Chapel Hill
existing statutes and in well-settled case law. Generally speaking, these categories are either civil
actions by nature or are otherwise matters traditionally adjudicated before the superior court.
e new statute provides that the clerk has no jurisdiction to hear the following matters:
1. Actions by or against creditors or debtors of an estate, except as
provided in G.S. 28A, Article 19 (concerning claims against the estate);
2. Actions involving claims for monetary damages, including
breach of duciary duty, fraud, and negligence;
3. Caveats;
40
4. Proceedings to determine the proper county of venue; and
5. Recovery of property transferred or conveyed by a decedent with
intent to hinder, delay, or defraud creditors pursuant to 28A-15-10(b).
41
What Matters Are Included in an “Estate Proceeding”?
In any given estate administration, there may be many dierent types of orders entered by the
clerk. Often these matters are a routine part of the administration or are otherwise uncontested,
and the clerk is authorized to make summary decisions about them without need of formal peti-
tion or hearing. is discussion will focus on estate proceedings in which there is likely to be a
hearing because the matter is contested and there is some material issue to be resolved.
42
As noted above, the statutory denition of “estate proceeding” is “a matter initiated by peti-
tion related to the administration, distribution, or settlement of an estate, other than a special
proceeding.”
43
is denition covers a broad range of issues indeed, and there may be multiple
estate proceedings conducted in any given estate administration. is is especially true where
estates are large or administration is complicated; the property is unusual, scattered, or hard to
value; the representative is unable or unwilling to fulll his or her duties; the family is in con-
ict; the will or other instrument is unclear; or the terms are not what the devisees wanted or
expected. And the list goes on.
So it is not particularly practical to try and list every matter that can arise as an “estate pro-
ceeding.” G.S. 28A-2-4(a), however, lists some common categories, stating that
[e]state proceedings include, but are not limited to, the following:
1. Probate of wills.
2. Granting and revoking of letters testamentary and letters of administration,
or other proper letters of authority for the administration of estates.
44
40. Will caveats are actions in rem to challenge the validity of a will that has been submitted to
probate. Caveats are led with the clerk but heard before a superior court judge by a jury. e statutes
governing will caveats, which were amended during the 2011–2012 legislative session, are found at
G.S. Chapter 31, Article 6. An outline of will caveat procedure for judicial ocials, prepared by Ann
M. Anderson in September 2012, can be downloaded from the School of Government’s website at
www.sog.unc.edu/node/2190.
41. G.S. 28A-2-4(c).
42. If a matter falls within the denition of “estate proceeding” but is uncontested, it must be com-
menced by a petition, though the clerk may decide it without a hearing. e clerk may also “hear and
decide the petition summarily.” Id. § 28A-2-6(b).
43. Id. § 28A-1-1(1b).
44. Note that, although this new subparagraph (2) to G.S. 28A-2-4(a) provides that proceedings “grant-
ing and revoking . . . letters” are “estate proceedings,” the statute that governs such proceedings explicitly
Estate Proceedings in North Carolina 7
© 2012 School of Government. e University of North Carolina at Chapel Hill
3. Determination of the elective share for a surviving spouse as provided in
G.S. 30-3.
45
4. Proceedings to ascertain heirs or devisees, to approve settlement agreements
pursuant to G.S. 28A-2-10, to determine questions of construction of wills,
to determine priority among creditors, to determine whether a person is in
possession of property belonging to an estate, to order the recovery of prop-
erty of the estate in possession of third parties, and to determine the exis-
tence or nonexistence of any immunity, power, privilege, duty or right . . .
46
e 2011 legislation also provides that certain other types of matters are heard as estate pro-
ceedings. Previously the adjudication standard for these matters was not specically codied or
was unclear, or the particular matter was classied as a special proceeding. Among the catego-
ries of other matters heard as estate proceedings are
• Petitions for probate of a will in solemn form;
47
• Determinations of a spouse’s life estate in lieu of intestate share;
48
• Controversies arising under the Intestate Succession Act;
49
• Decisions of the clerk regarding preservation of assets during pendency of will caveats;
50
• Proceedings contesting the appointment of (issuance of letters to) a personal representative
or collector;
51
and
• Proceedings by a personal representative to enforce his or her rights, as set forth in G.S.
28A-13-3(a).
52
Another example of an estate proceeding is a personal representative’s right to petition for
examination of “any persons reasonably believed to be in possession of property of any kind
belonging to the estate of the decedent” and to “demand . . . recovery of such property.”
53
is
type of proceeding can be essential to a personal representative’s ability to collect and distribute
estate property according to the terms of the decedent’s will and the requirements of law. Addi-
tional matters that have been treated as falling within the clerk’s authority include proceedings
to reopen an estate
54
and approval of a fee paid to an attorney hired to represent an estate.
55
provides for appeal “as a special proceeding.” Id. § 28A-9-4.
45. e 2011 legislation amended G.S. 30-3.4(e)(1) to make explicit that elective share determinations
are to be adjudicated as estate proceedings. Id. § 30-3.4(e)(1).
46. Id. § 28A-2-4(a) (emphasis added).
47. Id. § 28A-2A-7.
48. Id. § 29-30(f).
49. Id. § 29-12.1. For example, in In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010), the clerk
presided over the matter of whether a purported heir had met the statutory requirements for legitimation
that would entitle him to inherit from his putative father.
50. G.S. 31-36(c).
51. Id. § 28A-6-4.
52. Id. § 28A-13-3(d). is statute provides that “[t]he personal representative has the power to insti-
tute an estate proceeding pursuant to Article 2 of this Chapter to enforce the rights set forth in this
section.”
53. G.S. 28A-15-12(b1).
54. See In re Estate of Mullins, 182 N.C. App. 667, 669, 643 S.E.2d 599, 601 (2007).
55. See Strickland v. Strickland, 206 N.C. App. 766, 699 S.E.2d 142 (2010) (unpublished, reported in
table).
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© 2012 School of Government. e University of North Carolina at Chapel Hill
Procedure for Estate Proceedings
An estate proceeding typically culminates in an evidentiary hearing during which the clerk
hears the parties’ testimony, evaluates the competent evidence, makes relevant fact ndings and
legal conclusions, and renders an order. ese hearings, for practical purposes, are formal court
proceedings: the clerk is a judge with broad hearing authority,
56
the parties and their counsel are
subject to the rules of court, and, as discussed below, the clerk’s order is nal and appealable.
Before the hearing can occur, the parties must follow specic procedures so that all are
aorded due process and the clerk may eciently and thoroughly dispose of the issues. e pro-
cedures, discussed in turn in this section, are set out in new Article 2 of G.S. Chapter 28A.
57
Applicable Rules of Civil Procedure
Prior to the 2011 legislation, it was unclear whether and to what extent the North Carolina
Rules of Civil Procedure
58
applied in estate hearings. G.S. 28A-2-6 now states that the following
Rules apply unless the clerk, in any given case, directs otherwise (many of these Rules are also
discussed in greater detail in the sections below):
Rule No. Topic
4 Process
5 Service of subsequent pleadings and other papers
6(a), (d), (e) Time
18 Joinder of claims
19 Necessary joinder of parties
20 Permissive joinder of parties
21 Procedure upon misjoinder/nonjoinder
24 Intervention
45 Subpoenas
56 Summary judgment
65 Injunctions
59
When these Rules are applied in estate proceedings, the use of the term “judge” must be inter-
preted to mean “clerk.”
60
In addition to the Rules that apply by default, the clerk may also direct that any other Rule
shall apply to a proceeding. is includes the discovery provisions, as discussed in more detail
below. e clerk may make this determination either upon the motion of a party or upon his or
her own motion.
61
56. G.S. 7A-103.
57. See id. §§ 28A-2-6 through 28A-2-10.
58. Id. § 1A-1, Rules 1 to 83.
59. Id. § 28A-2-6(e).
60. Id.
61. Id.
Estate Proceedings in North Carolina 9
© 2012 School of Government. e University of North Carolina at Chapel Hill
The Petition
Estate proceedings must begin with the ling of a petition. A motion or other less formal ling
is not adequate to notify the court of the relief the petitioner seeks. e petition must be led in
the existing estate administration le.
62
Costs are assessed as set forth in G.S. 7A-307.
e petition contains two essential elements, as outlined in G.S. 28A-2-6. First, it must
include a “short and plain statement of the claim that is suciently particular to give the court
and the parties notice of the transactions, occurrences, or series of transactions intended to be
proved showing that the pleaders are entitled to relief.” Second, it must also contain “a demand
for judgment for the relief to which the pleader is entitled.” While the petition must, therefore,
be somewhat specic, these pleading requirements seem not to require the same formality as a
typical complaint in a civil case. e statute goes on to state that the averments in the petition
“should be simple, concise, and direct” and that “[n]o technical forms of motions or responses
are required.” As with a complaint in a civil matter, the petition may include alternative state-
ments of claims or defenses.
63
e parties also may seek injunctive relief in the petition pursuant to the specic require-
ments of Rule of Civil Procedure 65.
64
Any preliminary injunctive relief may instead be sought in
a separate motion. e petition, however, must be led before the clerk may grant a temporary
restraining order,
65
and the petitioner must serve the petition and notice of injunction hearing
before the clerk may grant a preliminary injunction.
66
Finally, the petitioner (or attorney, if applicable) must sign the petition. In doing so, that
person certies that (1) the person has read the pleading; (2) to the best of that person’s knowl-
edge, information, and belief formed after reasonable inquiry, the pleading is well grounded in
fact and is warranted by existing law or a good faith argument for extension, modication, or
reversal of existing law; and (3) it is not interposed for any improper purpose, such as to harass
or cause unnecessary delay or needless increase in litigation costs.
67
is certication require-
ment parallels a portion of the language of Rule of Civil Procedure 11(a). Rule 11, however, is not
among the Rules that apply in estate proceedings.
68
It appears, therefore, that the enforcement
and sanction provisions of Rule 11 do not carry over into estate proceedings.
69
62. Id. § 28A-2-6(a).
63. Id. § 28A-2-6(c). In addition, the Rule of Civil Procedure governing joinder of claims applies in
estate proceedings. Id. § 28A-2-6(e); see also id. § 1A-1, Rule 18.
64. Id. § 28A-2-6(e).
65. See Revelle v. Chamblee, 168 N.C. App. 227, 231, 606 S.E.2d 712, 714 (2005) (“Because there is
no pending litigation between petitioner and respondent . . ., there is no action to which the ancillary
remedy . . . may attach and the trial court had no jurisdiction to grant the preliminary injunction.”);
Carolina Freight Carriers Corp. v. Local Union No. 61 of Int’l Bhd. of Teamsters, 11 N.C. App. 159,
161, 180 S.E.2d 461, 463 (1971) (“. . . procedure under Rule 65(b) is permissible only after an action is
commenced as provided by Rule 3.”).
66. See G.S. 1A-1, Rule 65(a); Helbein v. S. Metals Co., Inc., 119 N.C. App. 431, 433, 458 S.E.2d 518, 519
(1995).
67. G.S. 28A-2-6(c).
68. See id. § 28A-2-6(e).
69. Rule 11(a) provides that an unsigned pleading “shall be stricken unless it is signed promptly after
the omission is called to the attention of the pleader . . .” and that appropriate sanctions, including rea-
sonable expenses and attorney fees, may be imposed upon signatories who le pleadings in violation of
the rule. See id. § 1A-1, Rule 11(a).
10 ESTATE Administration Bulletin No. 1 | DECEMBER 2012
© 2012 School of Government. e University of North Carolina at Chapel Hill
Parties
e person bringing the petition is referred to as the petitioner, and adverse parties are
known as respondents. All parties to the estate administration who are not named or joined
as petitioners to the estate proceeding must be joined as respondents.
70
Due to the sometimes
complex nature of estate administration, there may be occasions where persons who are not
already participating in the estate administration are necessary to resolution of an estate
proceeding. For this reason, G.S. 28A-2-6 allows the clerk to order that additional persons be
joined as respondents.
71
Interested persons may also seek to intervene in an estate proceeding
pursuant to Rule of Civil Procedure 24.
72
Summons and Service
When the petition is presented for ling, the clerk must issue an estate proceeding summons to
the respondents as well as to additional persons the clerk names as respondents.
73
e Admin-
istrative Oce of the Courts (AOC) has created a form to satisfy this specic statutory require-
ment: No. AOC-E-102, ESTATES PROCEEDINGS SUMMONS (1/12), available at the AOC’s
website.
74
e petition and summons must be served upon the respondents pursuant to Rule 4 of the
Rules of Civil Procedure.
75
Service is the responsibility of the petitioner. e requirements of
Rule 4 are exacting; all details should be reviewed carefully. Generally, Rule 4 provides that ser-
vice upon an individual—a “natural person”—may be made by
(a) delivery to the person or by leaving a copy of the petition and summons at
the person’s dwelling house or usual place of abode with an individual of
“suitable age and discretion then residing therein” (within North Carolina,
this personal service is almost always performed by the sheri);
76
(b) delivery to an agent authorized to accept service of process;
(c) mailing by registered or certied mail, return receipt requested;
(d) depositing with a designated delivery service (typically UPS or FedEx); or
(e) mailing by United States Postal Service, signature conrmation delivery.
77
70. Id. § 28A-2-6(a).
71. Id. In addition, the Rules of Civil Procedure related to joinder of parties apply in estate proceed-
ings. Id. § 28A-2-6(e); see also id. § 1A-1, Rules 19, 20, and 21.
72. Id. § 28A-2-6(e); see id. § 1A-1, Rule 24.
73. Id. § 28A-2-6(e).
74. e form can be downloaded at www.nccourts.org/forms/formsearch.asp. Prior to the 2011 leg-
islative amendments, parties to contested estate matters typically served a modied form of the special
proceedings summons, form AOC-SP-100. e new statute now expressly requires the use of an estates
proceedings summons, so parties to an estate proceeding should not be served using a modication of
another form.
75. G.S. 28A-2-6(a).
76. See id. § 1A-1, Rule 4(j)(1)a. (proper recipients); id. § 1A-1, Rule 4(a) (persons who may properly
eect service). For exceptions where the sheri is unavailable or unable to execute service, see id. § 1A-1,
Rules 4(h) and (h1).
77. See id. § 1A-1, Rule 4(j)(1)b.–e. For methods of service on parties who are not natural persons or
who are natural persons under a disability, parties should consult Rule 4(j)(2) through (9). Rule 4(j1) also
provides for service by publication where a party cannot after due diligence be served by one of the other
allowable methods. Parties or their counsel may also accept service pursuant to Rule 4(j5).
Estate Proceedings in North Carolina 11
© 2012 School of Government. e University of North Carolina at Chapel Hill
Any lings made in a proceeding after service has been accomplished—most commonly,
motions—must be served pursuant to the less stringent requirements of Rule of Civil
Procedure 5.
78
If a respondent is represented by another person as provided in G.S. Chapter 36C, Article 3
(e.g., by a parent representing a minor, a trustee representing a trust), service of process must be
made upon the representative.
79
A party or the party’s representative may waive notice by ling
in the proceeding a written waiver signed by the party or the party’s representative or attorney.
80
Response
e estates proceedings summons noties the respondent to “appear and answer” the peti-
tion within twenty days after service.
81
e purpose of this rule is to set a time after which the
parties or clerk may commence the actual hearing: “After the time for responding to the peti-
tion . . . has expired, any party or the clerk . . . may give notice to all parties of a hearing.”
82
e
twenty-day time limit should not be seen as a procedural parallel to Rule of Civil Procedure 12,
the default rule in civil actions.
83
Failure of a party to answer a petition in an estate proceeding
should not entitle the petitioner to a default judgment by the clerk. e clerk should still decide
the matter on its merits and upon the evidence in the record.
Extensions of Time
Before expiration. Where the statutes require or permit an action in the estate proceeding
within a certain period of time, and the time has not yet expired, the clerk may, under G.S. 28A-
2-6, enter an order enlarging that period of time “for cause shown.” e clerk may allow this
extension in his or her discretion and with or without motion or notice.
84
e “cause shown”
standard is very broad and allows the clerk to extend time for any of a number of reasons less
stringent than the “excusable neglect” standard that applies after the time period expires. e
extension may not, however, exceed ten days unless there is “good cause shown.”
85
If there is
“good cause shown,” the clerk may extend the time for a period greater than ten days, but only
“to the extent that the court [clerk] in its discretion determines that justice requires.”
86
After expiration. If the time in which a party must perform an act has already expired, the
clerk may permit the act where the failure was the result of excusable neglect.
87
Excusable
neglect “depends upon what, under all the surrounding circumstances, may be reasonably
78. G.S. 28A-2-6(e); see id. § 1A-1, Rule 5.
79. Id. § 28A-2-7. In any estate proceeding, “the parties shall be represented as provided in Article 3
of Chapter 36C of the General Statutes.” Id. § 28A-2-7(a). Further, nothing in Rule of Civil Procedure 17
shall require appointment of a guardian ad litem for a represented party except as provided by Chapter
36C, Article 3. Id. § 28A-2-6(e).
80. Id. § 28A-2-8.
81. Id. § 28A-2-6(a).
82. Id.
83. Note that Rules 8 through 12, which govern pleadings and answers in civil actions, do not apply in
estate proceedings. Id. § 28A-2-6(e).
84. G.S. 28A-2-6(d).
85. Id. (emphasis added).
86. Id.
87. Id.
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© 2012 School of Government. e University of North Carolina at Chapel Hill
expected of a party in paying proper attention to his case.”
88
Although excusable neglect is a
question of law, in general, an order allowing an extension of time for excusable neglect will not
be disturbed on appeal absent an abuse of the clerk’s discretion.
89
Stipulations. In lieu of an order by the clerk, the parties may enter into binding stipulations,
without clerk approval, enlarging applicable time requirements by up to thirty days.
90
is is a
common practice that preserves court resources. e parties should le such stipulations with
the clerk or otherwise inform the clerk regarding stipulation details.
Discovery and Subpoenas
In more contentious or complex proceedings, some types of discovery may be necessary to
fully develop the evidence the court will hear. e parties may be aided by discovery of various
types of documents, written admissions, answers to specic interrogatories, or sworn deposition
testimony of important witnesses. In such situations, the parties are allowed to ask the clerk’s
permission to conduct discovery pursuant to Rules of Civil Procedure 26 through 37.
91
e clerk
has broad discretion to allow or disallow discovery and to permit some types of discovery and
disallow others. Also, as provided in Rule 26, the clerk may set limits on the scope and amount
of discovery to be conducted and may issue protective orders, as needed, to prevent excesses and
shield vulnerable parties.
92
e parties also are permitted to use subpoenas to gather documents in the custody of non-
parties and to bring non-parties before the court to obtain their testimony.
93
Rule of Civil Pro-
cedure 45 governs the issuance of subpoenas, and the parties should observe its requirements
carefully.
Hearing
After the time for the parties to respond has passed, any party or the clerk may give notice to
all the parties of a hearing.
94
For those proceedings in which the parties are allowed to conduct
discovery, the hearing will occur after the parties have a reasonable amount of time to respond
to discovery requests.
In addition, the 2011 legislation allows the use of summary judgment motions in estate
proceedings.
95
If summary judgment motions are led, the clerk may elect to hear those motions
on a date prior to the date scheduled for the hearing of the estate proceeding.
88. Monaghan v. Schilling, 197 N.C. App. 578, 584, 677 S.E.2d 562, 566 (2009) (quoting McIntosh v.
McIntosh, 184 N.C. App. 697, 705, 646 S.E.2d 820, 825 (2007)).
89. Johnson v. Hooks, 21 N.C. App. 585, 588–89, 205 S.E.2d 796, 799 (1974). For example, in Williams
v. Jennette, 77 N.C. App. 283, 290, 335 S.E.2d 191, 196 (1985), the clerk did not err in granting an exten-
sion of time where the movants alleged conicting schedules, previous commitments, and the inadver-
tent tardiness of their attorney, who believed that all the defendants had been served on the same day.
90. G.S. 28A-2-6(d).
91. Id. § 28A-2-6(e).
92. Id. § 1A-1, Rule 26(c).
93. Id. § 28A-2-6(e).
94. Id. § 28A-2-6(a).
95. Id. § 28A-2-6(e); see id. § 1A-1, Rule 56.
Estate Proceedings in North Carolina 13
© 2012 School of Government. e University of North Carolina at Chapel Hill
An estate proceeding is a formal hearing before a judicial ocer of the court. e clerk has
broad authority to control the proceedings, including the power to issue subpoenas
96
and,
subject to the provisions of G.S. Chapter 5A, to punish criminal contempt and hold persons in
civil contempt.
97
If the parties are represented by counsel, counsel should expect to conduct
themselves with decorum similar to that required in the trial court division by General Rule of
Practice 12.
98
Although contested proceedings before the clerk generally are less formal than proceedings
before the trial courts, the North Carolina Rules of Evidence nevertheless apply to them.
99
e
extent to which the rules will be enforced will depend upon the questions to be resolved, the
nature of the evidence, the sophistication of the parties, whether the parties are represented by
counsel, the clerk’s preferences, and other factors. Because there are no juries in estate proceed-
ings, the clerk may allow informality in the presentation of evidence. It is important also to note
that the essential Rule of Evidence requiring parties to object in order to preserve an issue for
appeal does not apply in estate proceedings.
100
In estate proceedings, “[i]t is not necessary for a
party to object to the admission or exclusion of evidence before the clerk in order to preserve
the right to assign error on appeal to its admission or exclusion.”
101
e evidence upon which the clerk relies, however, in making his or her ruling must be com-
petent. Upon making a determination in an estate proceeding, the clerk “shall enter an order
or judgment, as appropriate, containing ndings of fact and conclusions of law supporting the
order or judgment.”
102
As discussed in more detail below, the clerk’s written ndings of fact and
conclusions of law allow the superior court, in the event of an appeal, to conduct a proper review
of the record and to assess whether the clerk’s decision is based on competent evidence. e
hearing generally will be recorded electronically to preserve the record for the superior court’s
review.
103
96. Id. § 7A-103(1). Rule of Civil Procedure 45, governing the use of subpoenas, applies in estate pro-
ceedings unless the clerk directs otherwise. Id. § 28A-2-6(e).
97. Id. § 7A-103(7). G.S. Chapter 5A governs contempt proceedings by North Carolina’s judicial
ocers. Chapter 5A, Article 1, governs criminal contempt and Chapter 5A, Article 2, governs civil
contempt.
98. See N.C. G. R. P. S D. C, R. 12.
99. “Except as otherwise provided . . . by statute, these rules apply to all actions and proceedings in
the courts of this State.” G.S. 8C-1, Rule 1101(a).
100. Id. § 8C-1, Rule 103. is exception is discussed in more detail infra page 18.
101. Id. § 1-301.3(d).
102. Id. § 1-301.3(b). A “nding of fact” has been interpreted to mean a determination reached after
“logical reasoning from the evidentiary facts.” Sheer v. Rardin, 208 N.C. App. 620, 624, 704 S.E.2d 32,
35 (2010) (citing Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657−58 (1982)). Findings of fact are
not recitations of the evidence or summaries of the record. e clerk must reach factual conclusions from
the evidence in the record, resolving the material disputes in the form of judicial “ndings.” A “conclu-
sion of law” is the application of the ndings of fact to the controlling law. Id. In making written ndings,
the clerk is not required to include every “evidentiary fact” in the case. e order need only include those
“ultimate” or “controlling” ndings of fact necessary to make the relevant conclusions of law. Quick,
305 N.C. at 452, 290 S.E.2d at 658; Woodward v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951);
Estate of Mullins, 182 N.C. App. 667, 671–72, 643 S.E.2d 599, 602 (2007).
103. G.S. 1-301.3(f).
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© 2012 School of Government. e University of North Carolina at Chapel Hill
Settlement
It has long been the practice of many clerks to approve settlement agreements that resolve the
various disputes arising during estate administration. e 2011 legislation codied and claried
this authority by providing that a clerk is authorized, in his or her discretion, to consider and
approve settlement agreements where
(1) the controversy arose with respect to a matter over which the clerk has jurisdiction; and
(2) the controversy arose in good faith.
104
So, clerks are not authorized to approve settlement of an estate proceeding once jurisdiction
over that proceeding has been transferred to the superior court, and clerks may not approve any
settlement “resolving a caveat of a last will and testament.”
105
More generally, clerks may not approve agreements “modifying the terms of a last will and
testament.”
106
e probate of wills is an in rem type of proceeding, and the clerk has a role in
protecting the intent of the testator, even where the living have diculty accepting the testator’s
choices. e heirs, devisees, and other survivors should not be permitted to override the court’s
role in the administration process (and thus overrule a testator’s intent) simply by agreeing
among themselves to do so. A couple of examples illustrate this exclusion:
• Jane died a widow and excluded two of her ve daughters from her will. e estate
administration becomes very contentious, and the two excluded daughters threaten
to le a caveat to claim that Jane’s will was the product of the undue inuence of the
other three daughters. Soon the ve daughters agree to a settlement that would divide
the assets equally among them. ey submit the settlement to the clerk so the estate
may be administered accordingly. e clerk may not approve this agreement because it
fundamentally alters the terms of Jane’s will.
• Joseph died leaving his three sons as heirs, each taking one-quarter of his estate, with
the remaining one-quarter going to a church. Joseph’s oldest son is executor. e estate
includes many dicult-to-value antiques and collectables. e two younger sons are
unhappy with the executor’s proposed division of assets among the devisees. ey have
objected to the distribution and petitioned the clerk to remove their brother as executor.
Soon all the sons and the church present the clerk a settlement meticulously listing the
items to be distributed to each devisee and agreeing that the list equally divides the assets
into quarters. e clerk is authorized to approve this settlement as a resolution of the
parties’ disputes and to allow administration to proceed accordingly. Rather than altering
the will’s provisions, the settlement simply resolves the valuation of estate assets so that the
executor is able to satisfy the will’s provisions.
104. Id. § 28A-2-10.
105. Id. As discussed supra note 40, will caveats are formal in rem challenges to the validity of a
will that has been submitted to probate. e procedure for will caveats is governed by G.S. Chapter 31,
Article 6. e parties to a will caveat may enter into a settlement agreement resolving the caveat any time
before a judgment is entered. e settlement agreement must rst be approved by a superior court judge
before it may be entered as a judgment in the matter. A clerk has no authority to approve such a settle-
ment agreement. G.S. 31-37.1.
106. Id. § 28A-2-10.
Estate Proceedings in North Carolina 15
© 2012 School of Government. e University of North Carolina at Chapel Hill
Appeal
e trial division—the superior courts and, to a much more limited extent, the district courts—
have appellate jurisdiction over most appealable orders entered by clerks.
107
G.S. 1-301.1 through
1-301.3 give the basic framework for appeal of a clerk’s order or judgment according to the type
of proceeding being appealed.
108
Appeal of an estate proceeding is to the superior court, and the
procedure for such an appeal is governed by G.S. 1-301.3.
109
Standard of Review
In appeals of estate proceedings, the superior court does not conduct a new trial of the matter—
in other words, review is not de novo. Instead, the court reviews the matter under the more
deferential “on the record” standard:
Upon appeal, the judge of the superior court shall review the order or judgment
of the clerk for the purpose of determining only the following:
(1) Whether the ndings are supported by the evidence.
(2) Whether the conclusions of law are supported by the ndings of facts.
(3) Whether the order or judgment is consistent with the conclusions of law
and applicable law.
110
e superior court judge has no authority to modify or substitute the clerk’s ndings of fact.
111
In the recent case of In re Severt, the clerk had jurisdiction over administration of an estate val-
ued at over $100 million. In the course of the estate’s administration, the clerk heard a complex
set of issues related, among other things, to the deceased’s domicile, and he entered an order
with twelve ndings of fact and ten conclusions of law. Upon appeal, the superior court judge
reversed the clerk’s order and entered an order making his own ndings of fact, some of which
107. G.S. 7A-251 provides that
(a) In all matters properly cognizable in the superior court division which are heard originally before
the clerk of superior court, appeals lie to the judge of superior court having jurisdiction from all
orders and judgments of the clerk for review in all matters of law or legal inference, in accordance
with the procedure provided in Chapter 1 of the General Statutes.
(b) In all matters properly cognizable in the district court division which are heard originally before
the clerk of superior court, appeals lie to the judge of district court having jurisdiction from all
orders and judgments of the clerk for review in all matters of law or legal inference, in accordance
with the procedure provided in Chapter 1 of the General Statutes.
108. ese statutes were enacted in 1999 at the recommendation of the General Statutes Commission
to give clear procedural guidance to clerks, judges, practitioners, and litigants while largely maintaining
the essential substance of existing law. Prior to enactment of these provisions as part of S.L. 1999-216,
the law was a collection of sometimes inconsistent post–Civil War statutes and decades-old cases. For
a more detailed discussion of the history of these laws, see D W. O (.), N C
L Ch. 6, (Chapel Hill, UNC Institute of Government, 1999).
In addition, many of the statutes governing particular types of hearings before the clerk contain fur-
ther (and more specic) appeal requirements. ose looking for guidance concerning appeals from the
clerk should look closely at both Chapter 1 of the General Statutes and the relevant substantive chapters
governing the types of proceedings at issue.
109. G.S. 28A-2-9(c).
110. Id. § 1-301.3(d).
111. In re Severt, 194 N.C. App. 508, 513−14, 669 S.E.2d 886, 889−891 (2008).
16 ESTATE Administration Bulletin No. 1 | DECEMBER 2012
© 2012 School of Government. e University of North Carolina at Chapel Hill
“re-characterized the ndings made by the clerk.”
112
e Court of Appeals vacated the superior
court order, stating
ere is no language in the superior court’s order that tells this Court whether
or not the clerk’s ndings of fact were supported by the evidence. Even if the
superior court had made such a determination, our statutes make no provision
for the trial court to make such a modication to the clerk’s ndings of fact.
Here, the superior court seems to have ignored completely those ndings of fact
made by the clerk . . . and substituted its own in their place. In doing so, the trial
court exceeded its statutorily proscribed standard of review.
113
Because the superior court’s review is limited to an examination of the clerk’s written nd-
ings and conclusions (and their support in the record), the clerk must provide the requisite
written order for the judge to review. e record is insucient if the clerk has merely recited his
or her decision orally at the conclusion of the hearing or entered an order containing only the
clerk’s nal decree or disposition.
114
In the absence of a sucient order, the superior court typi-
cally remands the proceeding to the clerk for proper ndings and conclusions.
Notice of Appeal
Upon making a determination in an estate matter, the clerk “shall enter an order or judgment,
as appropriate, containing ndings of fact and conclusions of law supporting the order or
judgment.”
115
Parties “aggrieved by an order or judgment of the clerk” who wish to appeal must
le a written notice of the appeal with the clerk. e notice must be led within ten (10) days of
the entry of the order or judgment after service of the order on that party.
116
“Entry” of an order
or judgment occurs when it is reduced to writing, signed by the clerk, and led in the clerk’s
oce.
117
e written notice of appeal “shall contain a short and plain statement of the basis for
the appeal.”
118
Unless statutes or case law provide otherwise, a superior court judge or the clerk may issue a
stay of the order or judgment upon the appellant’s posting an appropriate bond set by the judge
or clerk issuing the stay. While the appeal is pending, the clerk retains authority to enter orders
aecting the administration of the estate, subject to any order entered by a judge of the superior
court limiting that authority.
119
Stating Reasons for the Appeal
Prior to the 2011 revisions to G.S. 1-301.3, appellants were required to le a written notice
of appeal which “shall specify the basis for the appeal.” In Estate of Whitaker,
120
the court of
appeals interpreted this language to require the aggrieved party to point to specic ndings
and conclusions of the clerk. In Whitaker, the clerk held a hearing on a motion by a co-executor
112. Id. at 512, 669 S.E.2d at 889.
113. Id. at 513, 669 S.E.2d at 889.
114. G.S. 1-301.3(b), (d).
115. Id. § 1-301.3(b); see also supra note 102.
116. Id. § 1-301.3(c). e 2011 amendments added the language “after service of the order on that
party” to the statute.
117. Id. § 1A-1, Rule 58.
118. Id. § 1-301.3(c).
119. Id.
120. 179 N.C. App. 375, 633 S.E.2d 849 (2006).
Estate Proceedings in North Carolina 17
© 2012 School of Government. e University of North Carolina at Chapel Hill
of an estate, the administration of which had been very contentious up to that point. e co-
executor sought reimbursement for expenses and attorney fees she had allegedly incurred dur-
ing the complicated administration. e clerk granted in part and denied in part the motion in
an order consisting of sixty-six ndings of fact and several conclusions of law. e co-executor
appealed to the superior court, stating that “the ndings of fact are not supported by evidence,
the conclusions of law are not supported by ndings of fact, and the order is inconsistent with
the conclusions of law, prior court orders and applicable law.”
121
e superior court noted that
this assignment of error was merely a general objection and thus inadequate to properly state
an appeal. e judge nevertheless reviewed the ndings and conclusions and entered an order
arming them. e court of appeals agreed with the superior court judge that the statement of
error was inadequate:
In the present case, petitioner’s appeal to the superior court did not refer speci-
cally to any of the clerk’s 66 ndings of fact. . . . [e] statement constitutes only
a broadside attack on the ndings of fact and thus the trial court did not err by
concluding that petitioner had only made a “general objection.”
122
e court of appeals stated that an appeal from a clerk’s order must make a specic challenge or
it will be “ineective.”
123
Session Law 2011-344 amended the language “shall specify the basis for the appeal” to read,
“shall contain a short and plain statement of the basis for the appeal.”
124
is amendment
appears eectively to overrule Whitaker to the extent Whitaker requires specic objection to
particular ndings and conclusions. e new statutory language reduces the burden of address-
ing each potential error separately. It does, however, require some explanation of the basis for
the appeal, even if that explanation need only be “short and plain.” us, to the extent it requires
more than a mere general objection to (or “broadside attack on”) all ndings and conclusions,
Whitaker likely continues to be good law.
Record of the Clerk’s Hearing
To determine “whether the ndings are supported by the evidence,” the superior court judge
must have reasonable access to the evidentiary record before the clerk. G.S. 1-301.3 therefore
provides that,
In the discretion of the clerk or upon request by a party, all hearings and other
matters covered by this section shall be recorded by an electronic recording
device. . . . If a recordation is not made, the clerk shall submit to the superior
court a summary of the evidence presented to the clerk.
125
Electronic recordation is far and away a better option than a summary of the evidence. As a
practical matter, when a clerk hears a contested estate matter that is reasonably likely to be
appealed, a clerk is well served to record the proceeding. Recording will eliminate the diculty
inherent in relying on notes and memory to re-create a record, particularly when signicant
time has passed since the hearing was conducted. When the parties use the services of a court
121. Id. at 382, 633 S.E.2d at 854.
122. Id.
123. Id.
124. G.S. 1-301.3(c) (emphasis added).
125. Id. § 1-301.3(f).
is bulletin is published and posted online by the School of Government to address issues of interest to government
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To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu
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ChapelHill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.
18 ESTATE Administration Bulletin No. 1 | DECEMBER 2012
reporter, a “transcript of the proceedings may be ordered by a party, by the clerk, or by the pre-
siding judge.”
126
Special Evidentiary Exception
As discussed on page 13 above, contested proceedings before the clerk tend to be less formal
than proceedings before the trial courts, but the North Carolina Rules of Evidence nevertheless
generally apply to them.
127
When G.S. 1-301.3 was enacted, however, a signicant exception was
carved out for estate matters. Rule 103, the general Rule of Evidence regarding objections, states
that parties may not raise an issue on appeal if they do not properly object to it in the underlying
proceeding: “Error may not be predicated upon a ruling which admits or excludes evidence
unless a . . . timely objection or motion to strike appears of record.”
128
In estate proceedings,
under G.S. 1-301.3, however, “[i]t is not necessary for a party to object to the admission or exclu-
sion of evidence before the clerk in order to preserve the right to assign error on appeal to its
admission or exclusion.”
129
If the judge nds prejudicial error in the clerk’s admission or exclu-
sion of evidence,
[T]he judge, in the judge’s discretion, shall either remand the matter to the clerk
for a subsequent hearing or resolve the matter on the basis of the record. If the
record is insucient, the judge may receive additional evidence on the factual
issue in question.
130
e statute further provides that the judge “may continue the case if necessary to allow the par-
ties time to prepare for a hearing to receive additional evidence.”
131
Conclusion
e broad hearing authority of North Carolina’s clerks of superior court is an abiding part of
their role as ex ocio judges of probate. e 2011 legislation discussed in this bulletin did not
alter that fundamental part of our court system’s structure. What it did attempt to do is better
dene the categories over which clerks have jurisdiction, set parameters for transfer of that
jurisdiction, and provide rules—designed to be exibly administered—for commencement,
litigation, and hearing of estate proceedings. e result is more procedural certainty for clerks,
parties, and superior court judges when navigating these matters through the judicial process.
126. Id.
127. “Except as otherwise provided . . . by statute, these rules apply to all actions and proceedings in
the courts of this State.” Id. § 8C-1, Rule 1101(a).
128. Id. § 8C-1, Rule 103(a)(1).
129. Id. § 1-301.3(d).
130. Id. For example, in Strickland v. Strickland, 206 N.C. App. 766, 699 S.E.2d 142 (2010) (unpub-
lished, reported in table), the Court of Appeals held it was proper for the judge to receive additional
evidence on a factual point (upon nding the clerk’s ndings of fact insucient) and then to enter the
court’s own nding of fact based upon that newly received evidence.
131. G.S. 1-301.3(d).
