(a) Order of Clerk. - Where a caveat is filed, the clerk of the superior court shall forthwith issue an order that shall apply during the pendency of the caveat to any personal representative, having the estate in charge, as follows:
(1) Distributions to beneficiaries. - That there shall be no distributions of assets of the estate to any beneficiary;
(2) Commissions. - That no commissions shall be advanced or awarded to any personal representative;
(3) Accountings. - That the personal representative shall file all accountings required by the clerk of superior court and that the personal representative may pay any applicable filing fees associated with those accountings from the assets of the estate;
(4) Preservation of estate assets. - That the personal representative shall preserve the property of the estate and that the personal representative is authorized to pursue and prosecute claims that the estate may have against others; and
(5) Taxes, claims and debts of estate. - That the personal representative may file all appropriate tax returns and that the personal representative may pay, in accordance with the procedures of subsection (b) of this section: taxes; funeral expenses of the decedent; debts that are a lien upon the property of the decedent; bills of the decedent accrued before death; claims against the estate that are timely filed; professional fees related to administration of the estate, including fees for tax return preparation, appraisal fees, and attorneys' fees for estate administration.
(b) Procedures. - In regard to payment of any of the items listed in subdivision (5) of subsection (a) of this section, the personal representative shall file with the clerk a notice of the personal representative's intent to pay those items and shall serve the notice upon all parties to the caveat, pursuant to G.S. 1A-1, Rule 4 of the Rules of Civil Procedure. If within 10 days of service any party files with the clerk a written objection to that payment, the clerk shall schedule a hearing and determine whether the proposed payment shall be made. If no such objection is filed with the clerk, the clerk may approve the payment without hearing, and upon that approval, the personal representative may make the payment. The parties to the caveat may consent to any such payment, and upon such consent, the clerk may approve the payment without hearing. The clerk may defer ruling on the payment pending the resolution of the caveat.
(c) Preservation of Estate Assets. - Questions regarding the use, location, and disposition of assets that cannot be resolved by the parties and consented to by the clerk shall be decided by the clerk. When a question has not been resolved by agreement, either party may request a hearing before the clerk upon 10 days notice and shall serve the notice upon all parties to the caveat, pursuant to G.S. 1A-1, Rule 4 of the Rules of Civil Procedure. Decisions of the clerk may be appealed to the superior court pursuant to G.S. 1-301.3. (C.C.P., s. 448; Code, s. 2160; Rev., s. 3137; C.S., s. 4161; 1927, c. 119; 2009-131, s. 1; 2011-344, s. 8.)
§ 31-37: Repealed by Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.
Notes of Decisions
Cited in
11
cases (
2 in the last 5 years), 1947–2022 · leading case:
In Re the Will of Durham, 698 S.E.2d 112 (N.C. Ct. App. 2010).
In Re the Will of Durham, 698 S.E.2d 112 (N.C. Ct. App. 2010).
· cites it 2× “§ 31-36 , upon the filing of a caveat, the “clerk of superior court shall forthwith issue an order that shall apply during the pendency of the caveat to any personal representative, having the estate in charge,” suspending the administration of the estate except for the…”
Matter of Will of Hester, 353 S.E.2d 643 (N.C. Ct. App. 1987).
· cites it 3× “When a caveat is filed with the clerk of superior court, it is the statutory duty of the clerk to make an entry upon the page of the will book where such last will is recorded, evidencing that such caveat has been filed. G.S. § 31-37. When such caveat results in final judgment…”
In Re the Prob. of the Last Will & Testament of Hine, 45 S.E.2d 526 (N.C. 1947).
“Also, where a caveat is entered and bond given, tbe clerk of Superior Court shall forthwith issue an order to any personal representative having tbe estate in charge, to suspend all further proceedings in relation to tbe estate, except tbe preservation of tbe property and tbe…”
Wing v. Goldman Sachs Tr. Co. (N.C. 2022).
· cites it 33× “We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
Wing v. Goldman Sachs Tr. Co., N.A. (N.C. 2022).
· cites it 33× “We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
In re Will of Tatum, 65 S.E.2d 351 (N.C. 1951).
“It appears tbat contemporaneously with tbe entry of tbe judgment below on 3 February, 1951, tbe court entered an order allowing attorney fees and appointing commissioners, with direction tbat they give bond and take over and handle tbe estate pending final determination of tbe…”
Hargrave v. Gardner, 141 S.E.2d 36 (N.C. 1965).
“G.S. 31-36. But this does not prevent the administrator from suing and being sued.”
In Re Tatum's Will, 65 S.E.2d 351 (N.C. 1951).
· cites it 2× “It appears that contemporaneously with the entry of the judgment below on 3 February, 1951, the court entered an order allowing attorney fees and appointing commissioners, with direction that they give bond and take over and handle the estate pending final determination of the…”
In re the Will of Lamb, 268 S.E.2d 831 (N.C. Ct. App. 1980).
· cites it 2× “31-33 and G.S. 31-36 to transfer the cause to the superior court for trial and to order the propounders to suspend proceedings under the will.”
— N.C. Gen. Stat. § 31-36(a) — 2 cases
Wing v. Goldman Sachs Tr. Co. (N.C. 2022).
“We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
Wing v. Goldman Sachs Tr. Co., N.A. (N.C. 2022).
“We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
— N.C. Gen. Stat. § 31-36(a)(1) — 2 cases
Wing v. Goldman Sachs Tr. Co. (N.C. 2022).
“We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
Wing v. Goldman Sachs Tr. Co., N.A. (N.C. 2022).
“We also hold that the Court of Appeals erred by applying N.C.G.S. § 31-36, a statute applicable to will caveats, to this trust proceeding.”
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