GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2019-178
SENATE BILL 532
AN ACT (I) to Require that, in a living probate proceeding, the original will be introduced as evidence rather than being attached to the initial petition, (II) to permit the use of "minor" or "18+" or "Adult" in place of the actual age of an heir or devisee in an Application for letters of administration or letters testamentary, (III) to adjust this State's statutes dealing with out‑of‑state wills recognized in this state on the basis of compliance with the law of the state of execution in order to continue the requirement that the Testator Have Been physically present in that state at the time of the will's execution, (IV) to provide for notice that tenancy by the entireties property transferred to a tenancy by the entireties trust remains immune to the claims of one spouse's individual creditors and to specify that a person entering into a transaction involving the property may obtain confirmation from the trustee that the property continues to qualify for this immunity, and (V) to make technical corrections to the affected statutes, as recommended by the General statutes commission.
The General Assembly of North Carolina enacts:
SECTION 1.(a) G.S. 28A‑2B‑1 reads as rewritten:
"§ 28A‑2B‑1. Establishment before death that a will or codicil is valid.
(a) Any petitioner who is a resident of North Carolina and who has executed a will or codicil may file a petition seeking a judicial declaration that the will or codicil is valid.
(b) The petition shall be filed with the clerk of superior court and the matter shall proceed as a contested estate proceeding governed by Article 2 of Chapter 28A of the General Statutes. At the hearing before the clerk of superior court, the petitioner shall produce the original will or codicil and any other evidence necessary to establish that the will or codicil would be admitted to probate if the petitioner were deceased.
If an interested party contests the validity of the will or codicil, that person shall file a written challenge to the will or codicil before the hearing or make an objection to the validity of the will or codicil at the hearing. Upon the filing of a challenge or the raising of an issue contesting the validity of the will or codicil, the clerk shall transfer the cause to the superior court. The matter shall be heard as if it were a caveat proceeding, and the court shall make a determination as to the validity of the will or codicil and enter judgment accordingly.
If no interested party contests the validity of the will or codicil and if the clerk of superior court determines that the will or codicil would be admitted to probate if the petitioner were deceased, the clerk of superior court shall enter an order adjudging the will or codicil to be valid.
SECTION 1.(b) G.S. 28A‑2B‑3 reads as rewritten:
"§ 28A‑2B‑3. Contents of petition for will validity.
(b) The petitioner shall
the original a copy of the will or codicil with the petition.
petition and tender the original will or codicil at the hearing as
provided in G.S. 28A‑2B‑1(b). If an order is entered
declaring the will or codicil to be valid, the court shall affix a certificate
of validity to the will or codicil."
SECTION 2. G.S. 28A‑6‑1(a) reads as rewritten:
"(a) The application for letters of administration or letters testamentary shall be in the form of an affidavit sworn to before an officer authorized to administer oaths, signed by the applicant or the applicant's attorney, which may be supported by other proof under oath in writing, all of which shall be recorded and filed by the clerk of superior court, and shall allege all the following facts:
(1) The name, and to the
extent known, the domicile and the date and place of death of the
(2) The legal residence and
mailing address of the
(3) The names,
and mailing addresses of the decedent's heirs and devisees, including the
names and mailing addresses of the guardians of those having court‑appointed
guardians, so far as all of these facts are known or can with reasonable
diligence be ascertained;ascertained. It is sufficient to allege "minor"
for the age of an heir or devisee under the age of eighteen and "18+"
or "adult" for the age of an heir or devisee who is eighteen years of
age or older.
(4) That the applicant is the person entitled to apply for letters, or that the applicant applies after persons having prior right to apply are shown to have renounced under Article 5 of this Chapter, or that the applicant applies subject to the provisions of G.S. 28A‑6‑2(1), and that the applicant is not disqualified under G.S. 28A‑4‑2.
(5) The nature and probable
value of the decedent's property, both real and personal, and the location of
such property, so far as all of these facts are known or can with reasonable
(6) If the decedent was not domiciled in this State at the time of the decedent's death, a schedule of the decedent's property located in this State, and the name and mailing address of the decedent's domiciliary personal representative, or if there is none, whether a proceeding to appoint one is pending."
SECTION 3.(a) G.S. 31‑11.6 reads as rewritten:
"§ 31‑11.6. How attested wills may be made self‑proved.
(d) Any will
another state recognized as valid under G.S. 31‑46(1) or (2) and
shown by the propounder to have been made self‑proved under the laws of that
state the jurisdiction in which the testator was physically present at
the time of execution or the place where the testator was domiciled at the time
of execution or at the time of death shall be considered as self‑proved.
SECTION 3.(b) G.S. 31‑46 reads as rewritten:
"§ 31‑46. Validity of will; which laws govern.
A will is valid if it meets the
requirements of the applicable provisions of law in effect in this State either
at the time of its execution or at the time of the death of the testator, or if
(i) its any of the following apply:
(1) The will's execution
with the law of the place where it is executed jurisdiction in
which the testator was physically present at the time of execution; (ii)
(2) Its execution
complies complied with
the law of the place where the testator is was domiciled at the
time of execution or at the time of death; or (iii) it death.
(3) It is a military testamentary instrument executed in accordance with the provisions of 10 U.S.C. § 1044d or any successor or replacement statute."
SECTION 4.(a) G.S. 39‑13.7(a) reads as rewritten:
"(a) Any real property
held by a husband and wife as a tenancy by the entireties and conveyed
(i) (i) to a joint trust or (ii) in equal shares to two separate trusts;
trusts shall no longer be held by the husband and wife as tenants by
the entirety and shall be disposed of by the terms of the trust or trusts, but,
subject to the provisions of subsection (b) of this section, the real property
shall have the same immunity from the claims of the separate creditors of the
husband and wife as would exist if the spouses had continued to hold the
property as tenants by the entireties."
SECTION 4.(b) G.S. 39‑13.7 is amended by adding two new subsections to read:
"(f) Notice that the real property held in trust receives immunity from the claims of separate creditors may be given in a statement in the conveyance of the tenancy by the entireties real property to the trust that the real property is held under this section and that, as of the date of the conveyance, the requirements of subsection (b) of this section are met.
(g) A person entering into a transaction involving real property held in trust under this section may request confirmation from the trustee whether the requirements of this section providing immunity from the claims of separate creditors are met at the time of the transaction."
SECTION 4.(c) If Senate Bill 595, 2019 Regular Session, becomes law, this section is repealed.
SECTION 5. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 18th day of July, 2019.
s/ Carl Ford
Presiding Officer of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Roy Cooper
Approved 12:14 p.m. this 26th day of July, 2019