GENERAL ASSEMBLY OF NORTH CAROLINA
1989 SESSION

CHAPTER 407
SENATE BILL 889

AN ACT TO PROVIDE FOR COLLECTION OF PROPERTY IN DECEDENTS' ESTATES BY DEVISEES, PUBLIC ADMINISTRATORS, AND EXECUTORS.

The General Assembly of North Carolina enacts:

Section 1.  G.S. 28A-25-1(a) reads as rewritten:
"(a)	When a decedent dies intestate leaving personal property, less liens and encumbrances thereon, not exceeding ten thousand dollars ($10,000) in value, at any time after 30 days from the date of death, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the public administrator appointed pursuant to G.S. 28A-12-1, or an heir or creditor of the decedent, not disqualified under G.S. 28A-4-2, upon being presented a certified copy of an affidavit filed in accordance with subsection (b) and made by or on behalf of the heir or creditor or the public administrator  stating:
(1)	The name and address of the affiant and the fact that he or she is the public administrator or an heir or creditor of the decedent;
(2)	The name of the decedent and his residence at time of death;
(3)	The date and place of death of the decedent;
(4)	That 30 days have elapsed since the death of the decedent;
(5)	That the value of all the personal property owned by the estate of the decedent, less liens and encumbrances thereon, does not exceed ten thousand dollars ($10,000);
(6)	That no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction;
(7)	The names and addresses of those persons who are entitled, under the provisions of the Intestate Succession Act, to the personal property of the decedent and their relationship, if any, to the decedent; and
(8)	A description sufficient to identify each tract of real property owned by the decedent at the time of his death."
Sec. 2.  G.S. 28A-25-1.1(a) reads as rewritten:
"(a)	When a decedent dies testate leaving personal property, less liens and encumbrances thereon, not exceeding ten thousand dollars ($10,000) in value, at any time after 30 days from the date of death, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the public administrator appointed pursuant to G.S. 28A-12-1, a person named or designated as executor in the will, devisee, heir or creditor, of the decedent, not disqualified under G.S. 28A-4-2, upon being presented a certified copy of an affidavit filed in accordance with subsection (b) and made by or on behalf of the heir, the person named or designated as executor in the will of the decedent, the creditor, the public administrator, or the devisee, stating:
(1)	The name and address of the affiant and the fact that he is the public administrator, a person named or designated as executor in the will, devisee, heir or creditor, of the decedent;
(2)	The name of the decedent and his residence at time of death;
(3)	The date and place of death of the decedent;
(4)	That 30 days have elapsed since the death of the decedent;
(5)	That the decedent died testate leaving personal property, less liens and encumbrances thereon, not exceeding ten thousand dollars ($10,000) in value;
(6)	That the decedent's will has been admitted to probate in the court of the proper county and a duly certified copy of the will has been recorded in each county in which is located any real property owned by the decedent at the time of his death;
(7)	That a certified copy of the decedent's will is attached to the affidavit;
(8)	That no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction;
(9)	The names and addresses of those persons who are entitled, under the provisions of the will, or if applicable, of the Intestate Succession Act, to the property of the decedent; and their relationship, if any, to the decedent; and
(10)	A description sufficient to identify each tract of real property owned by the decedent at the time of his death."
Sec. 3.  G.S. 28A-25-3 reads as rewritten:
"§ 28A-25-3. Disbursement and distribution of property collected by affidavit.
(a)	If there has been no personal representative or collector appointed by the clerk of superior court, the affiant who has collected personal property of the decedent by affidavit pursuant to G.S. 28A-25-1 or G.S. 28A-25-1.1 shall:
(1)	Disburse and distribute the same in the following order:
a.	To the payment of the surviving spouse's year's allowance and the children's year's allowance assigned in accordance with G.S. 30-15 through 30-33;
b.	To the payment of the debts and claims against the estate of the decedent in the order of priority set forth in G.S. 28A-19-6, or to the reimbursement of any person who has already made payment thereof;
c.	To the distribution of the remainder of the personal property to the persons entitled thereto under the provisions of the will or of the Intestate Succession Act; and
(2)	File an affidavit with the clerk of superior court that he has collected the personal property of the decedent and the manner in which he has disbursed and distributed it. This final affidavit shall be filed within 90 days of the date of filing of the qualifying affidavit provided for in G.S. 28A-25-1 or  G.S. 28A-25-1.1. If the affiant cannot file the final affidavit within 90 days, he shall file a report with the clerk within that time period stating his reasons. Upon determining that the affiant has good reason not to file the final affidavit within 90 days, the clerk may extend the time for filing up to one year from the date of filing the qualifying affidavit.
(b)	Nothing in this section shall be construed as changing the rule of G.S. 28A-15-1 and G.S. 28A-15-5 rendering both real and personal property, without preference or priority, available for the discharge of debts and other claims against the estate of the decedent. If it appears that it may be in the best interest of the estate to sell, lease, or mortgage any real property to obtain money for the payment of debts or other claims against the decedent's estate, the affiant shall petition the clerk of superior court for the appointment of a personal representative to conclude the administration of the decedent's estate pursuant to G.S. 28A-25-5."
Sec. 4.  G.S. 28A-25-4 reads as rewritten:
"§ 28A-25-4. Clerk may compel compliance.
If any affiant who has collected personal property of the decedent by affidavit pursuant to G.S. 28A-25-1 or G.S. 28A-25-1.1 shall fail to make distribution or file affidavit as required by G.S. 28A-25-3, the clerk of superior court may, upon his own motion or at the request of any interested person, issue an attachment against him for a contempt and commit him until he makes proper distribution and files the affidavit.  In addition to or in lieu of filing this attachment, the clerk may require the affiant to post a bond conditioned as provided in G.S. 28A-8-2."
Sec. 5.  This act shall become effective October 1, 1989, and shall apply to persons dying on or after that date.
In the General Assembly read three times and ratified this the 22nd day of June, 1989.