Working with an estate lawyer in Cary NC can be very beneficial for both you and your family. There are a variety of issues that can arise when it comes to Administrators and implied renunciation
Dangers of Implied Renunciation | Estate Lawyer Cary NC
Eldreth Law Firm, PLLC was contacted by an heir who was concerned that her brother had been appointed as Administrator for their mother’s estate without her consent or knowledge. She informed us that her brother is a convicted felon and did not believe he had the right to serve as an Administrator.
After thoroughly investigated the estate matter we found that her brother was properly appointed as Administrator for the estate by the Clerk of Court. Pursuant to North Carolina law if no heir has applied to administer the estate within ninety days from the date of the decedent’s death, it is assumed that they have no interest in applying, at which time any interested party may apply for an appointment without the consent of the other heirs. This is typically referred to as “implied renunciation.” In this case, the brother applied to be the Administrator of the estate before the Clerk of Court for more than six months from the date of the decedent’s death.
Under North Carolina law an Administrator must be bonded to cover the assets of the estate unless all other heirs waive this requirement. The bond is a type of insurance policy issued to protect the assets of the estate from misuse by the Administrator. Upon review of the estate file, it appears that the brother posted a surety bond at the time of his appointment. Since real estate passes outside of the estate administration and directly to the heirs, the bond does not cover this property.
North Carolina law prohibits any felon whose rights have not been restored from serving as an Executor or Administrator. A search of his criminal record shows that the Administrator was convicted of two felonies, however, the North Carolina Parole Commission verified that his rights had been restored, which then allowed him to serve as Administrator.
Because the Administrator was properly appointed, and because there is no evidence showing that he has violated his fiduciary duties there is nothing that can be done to revoke his letters of appointment or have him removed unless evidence can be shown that the Administrator violated his fiduciary duties.
In the event of someone passing, especially without a will (intestate), it is important that we file an application with the Clerk of Court or some other writing indicating your intent as soon as reasonably possible, but preferably within thirty days from the decedent’s death. This will help ensure that your wishes are heard and avoid the dangers of implied renunciation.
When planning your estate, you may want to consider which assets are subject to probate and which are not so that you can make the best decisions in how you designate heirs. If you need additional help, reach out to our estate lawyer in Cary NC to ensure that you are creating the best plan for your situation.
As always, please contact us with any questions or concerns you may have concerning legal issues. Also, contact our estate lawyer in Cary NC to schedule a consultation if you have yet to start estate planning. If you don’t have an estate plan in place or haven’t reviewed yours in several years, now might be the best time to start. In addition to estate planning, our lawyer is here to help you with all your small business needs, trademarking, copyrighting, and other legal issues.