Issue: In a case regarding wills in North Carolina, can a petition be transferred to an ancillary proceeding in another state?
| Area of Law: | Estate Planning & Probate |
| Keywords: | Ancillary proceeding; Transfer to another state; Estate proceedings |
| Jurisdiction: | North Carolina |
| Cited Cases: | 252 N.C. 454; 430 S.E.2d 446; 407 S.E.2d 607; 303 N.C. 452 |
| Cited Statutes: | N.C. Gen. Laws §§ 28A-26-1 to -9; N.C. Gen. Stat. § 28A-26-3(a), § 28A-26-3(b), § 28A-4-1; G.S. 28A-4-2, §§ 28A-6-1 to -5, § 28A-26-5, N.C. Gen. Stat. § 31-27(a); |
| Date: | 05/01/2001 |
North Carolina=s statutes relating to ancillary administration, N.C. Gen. Laws §§ 28A-26-1 to -9 (1999), indicate that an ancillary proceeding is generally commenced by the personal representative:
Any domiciliary personal representative of a nonresident decedent upon the filing of a certified or exemplified copy of letters of appointment with the clerk of superior court who has venue under G.S. 28A-3-1 may be granted ancillary letters in this State notwithstanding that the domiciliary personal representative is a nonresident of this State or is a foreign corporation.
N.C. Gen. Stat. § 28A-26-3(a). If no application for ancillary letters has been made within ninety days of the testator=s death, or within sixty days after domiciliary letters are issued, which ever is shorter, then “any person who could apply for issue of letters had the decedent been a resident may apply for issue of ancillary letters.” Id. § 28A-26-3(b) (emphasis added). Those provisions are set forth in ‘ 28A-4-1.
Under § 28A-4-1, testamentary letters may be granted to “[a]ny devisee of the testator,” “[a]ny person of good character residing in the county who applies therefore” and “[a]ny other person of good character not disqualified under G.S. 28A-4-2.” Id. ‘ 28-4-1(b). These last two designations have lower priority. Section § 28A-4-1(a), however, provides that persons designated in subsection (b) are to be selected if the executor named in the will, a substitute or successor executor named in the will, or “some other person nominated by a person upon whom the will expressly confers the authority to […]