§35A‑1341.1. Prerequisites to approval by judge of gifts to individuals.
The judge shall not approvegifts from principal to individuals unless it appears to the judge'ssatisfaction that all of the following requirements have been met:
(1) Making the giftswill not leave the incompetent's remaining principal estate insufficient toprovide reasonable and adequate income for the support, maintenance, comfort,and welfare of the incompetent in order to maintain the incompetent and anydependents legally entitled to support from the incompetent in the manner towhich the incompetent and those dependents are accustomed and in keeping withtheir station in life.
(2) The making of thegifts will not jeopardize the rights of any existing creditor of the incompetent.
(3) It is improbablethat the incompetent will recover competency during his or her lifetime.
(4) The judge determinesthat either a., b., c., or d. applies.
a. All of the followingapply:
1. The incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent.
2. Each donee isentitled to one or more specific legacies, bequests, devises, or distributionsof specific amounts of money, income, or property under either the paper‑writingor revocable trust or both or is a residuary legatee, devisee, or beneficiarydesignated in the paper‑writing or revocable trust or both.
3. The making of thegifts will not jeopardize any specific legacy, bequest, devise, or distributionof specific amounts of money, income, or property.
b. That so far as isknown the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, and each doneeis a person who would share in the incompetent's intestate estate, if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts.
c. The donee is aperson who would share in the incompetent's nonprobate estate, if theincompetent died contemporaneously with the signing of the order of approval.
d. The donee is thespouse, parent, descendant of the incompetent, or descendant of the incompetent'sparent, and the amount of the gift does not exceed the federal annual gift taxexclusion.
(5) If the incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent; then all residuary legatees, devisees, andbeneficiaries designated in the paper‑writing or revocable trust or both,who would take under the paper‑writing or revocable trust or both if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts and the paper‑writing was probated as the incompetent's will,the spouse, if any, of the incompetent and all persons identified in G.S. 35A‑1341.1(7)have been given at least 10 days' written notice that approval for the giftswill be sought and that objection may be filed with the clerk of superior courtof the county in which the guardian was appointed, within the 10‑dayperiod.
(6) If so far as isknown, the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, all persons whowould share in the incompetent's estate, if the incompetent diedcontemporaneously with the signing of the order of approval, have been given atleast 10 days' written notice that approval for the gifts will be sought andthat objection may be filed with the clerk of the superior court of the countyin which the guardian was appointed, within the 10‑day period.
(7) If the gift forwhich approval is sought is of a nonprobate asset, all persons who would sharein that nonprobate asset if the incompetent died contemporaneously with thesigning of the order of approval have been given at least 10 days' writtennotice that approval for the gifts will be sought and that objection may befiled with the clerk of the superior court of the county in which the guardianwas appointed within the 10‑day period. This notice requirement shall bein addition to the notice requirements contained in G.S. 35A‑1341.1(5)and (6) above.
The judge may order that thegifts be made in cash or in specific assets and may order that the gifts bemade outright, in trust, under the North Carolina Uniform Transfers to MinorsAct, under the North Carolina Uniform Custodial Trust Act, or otherwise. Thejudge may also order that the gifts be treated as an advancement of some or allof the amount the donee would otherwise receive at the incompetent's death. (1999‑270,s. 6.)
§35A‑1341.1. Prerequisites to approval by judge of gifts to individuals.
The judge shall not approvegifts from principal to individuals unless it appears to the judge'ssatisfaction that all of the following requirements have been met:
(1) Making the giftswill not leave the incompetent's remaining principal estate insufficient toprovide reasonable and adequate income for the support, maintenance, comfort,and welfare of the incompetent in order to maintain the incompetent and anydependents legally entitled to support from the incompetent in the manner towhich the incompetent and those dependents are accustomed and in keeping withtheir station in life.
(2) The making of thegifts will not jeopardize the rights of any existing creditor of the incompetent.
(3) It is improbablethat the incompetent will recover competency during his or her lifetime.
(4) The judge determinesthat either a., b., c., or d. applies.
a. All of the followingapply:
1. The incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent.
2. Each donee isentitled to one or more specific legacies, bequests, devises, or distributionsof specific amounts of money, income, or property under either the paper‑writingor revocable trust or both or is a residuary legatee, devisee, or beneficiarydesignated in the paper‑writing or revocable trust or both.
3. The making of thegifts will not jeopardize any specific legacy, bequest, devise, or distributionof specific amounts of money, income, or property.
b. That so far as isknown the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, and each doneeis a person who would share in the incompetent's intestate estate, if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts.
c. The donee is aperson who would share in the incompetent's nonprobate estate, if theincompetent died contemporaneously with the signing of the order of approval.
d. The donee is thespouse, parent, descendant of the incompetent, or descendant of the incompetent'sparent, and the amount of the gift does not exceed the federal annual gift taxexclusion.
(5) If the incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent; then all residuary legatees, devisees, andbeneficiaries designated in the paper‑writing or revocable trust or both,who would take under the paper‑writing or revocable trust or both if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts and the paper‑writing was probated as the incompetent's will,the spouse, if any, of the incompetent and all persons identified in G.S. 35A‑1341.1(7)have been given at least 10 days' written notice that approval for the giftswill be sought and that objection may be filed with the clerk of superior courtof the county in which the guardian was appointed, within the 10‑dayperiod.
(6) If so far as isknown, the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, all persons whowould share in the incompetent's estate, if the incompetent diedcontemporaneously with the signing of the order of approval, have been given atleast 10 days' written notice that approval for the gifts will be sought andthat objection may be filed with the clerk of the superior court of the countyin which the guardian was appointed, within the 10‑day period.
(7) If the gift forwhich approval is sought is of a nonprobate asset, all persons who would sharein that nonprobate asset if the incompetent died contemporaneously with thesigning of the order of approval have been given at least 10 days' writtennotice that approval for the gifts will be sought and that objection may befiled with the clerk of the superior court of the county in which the guardianwas appointed within the 10‑day period. This notice requirement shall bein addition to the notice requirements contained in G.S. 35A‑1341.1(5)and (6) above.
The judge may order that thegifts be made in cash or in specific assets and may order that the gifts bemade outright, in trust, under the North Carolina Uniform Transfers to MinorsAct, under the North Carolina Uniform Custodial Trust Act, or otherwise. Thejudge may also order that the gifts be treated as an advancement of some or allof the amount the donee would otherwise receive at the incompetent's death. (1999‑270,s. 6.)
§35A‑1341.1. Prerequisites to approval by judge of gifts to individuals.
The judge shall not approvegifts from principal to individuals unless it appears to the judge'ssatisfaction that all of the following requirements have been met:
(1) Making the giftswill not leave the incompetent's remaining principal estate insufficient toprovide reasonable and adequate income for the support, maintenance, comfort,and welfare of the incompetent in order to maintain the incompetent and anydependents legally entitled to support from the incompetent in the manner towhich the incompetent and those dependents are accustomed and in keeping withtheir station in life.
(2) The making of thegifts will not jeopardize the rights of any existing creditor of the incompetent.
(3) It is improbablethat the incompetent will recover competency during his or her lifetime.
(4) The judge determinesthat either a., b., c., or d. applies.
a. All of the followingapply:
1. The incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent.
2. Each donee isentitled to one or more specific legacies, bequests, devises, or distributionsof specific amounts of money, income, or property under either the paper‑writingor revocable trust or both or is a residuary legatee, devisee, or beneficiarydesignated in the paper‑writing or revocable trust or both.
3. The making of thegifts will not jeopardize any specific legacy, bequest, devise, or distributionof specific amounts of money, income, or property.
b. That so far as isknown the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, and each doneeis a person who would share in the incompetent's intestate estate, if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts.
c. The donee is aperson who would share in the incompetent's nonprobate estate, if theincompetent died contemporaneously with the signing of the order of approval.
d. The donee is thespouse, parent, descendant of the incompetent, or descendant of the incompetent'sparent, and the amount of the gift does not exceed the federal annual gift taxexclusion.
(5) If the incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent; then all residuary legatees, devisees, andbeneficiaries designated in the paper‑writing or revocable trust or both,who would take under the paper‑writing or revocable trust or both if theincompetent died contemporaneously with the signing of the order of approval ofthe gifts and the paper‑writing was probated as the incompetent's will,the spouse, if any, of the incompetent and all persons identified in G.S. 35A‑1341.1(7)have been given at least 10 days' written notice that approval for the giftswill be sought and that objection may be filed with the clerk of superior courtof the county in which the guardian was appointed, within the 10‑dayperiod.
(6) If so far as isknown, the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, all persons whowould share in the incompetent's estate, if the incompetent diedcontemporaneously with the signing of the order of approval, have been given atleast 10 days' written notice that approval for the gifts will be sought andthat objection may be filed with the clerk of the superior court of the countyin which the guardian was appointed, within the 10‑day period.
(7) If the gift forwhich approval is sought is of a nonprobate asset, all persons who would sharein that nonprobate asset if the incompetent died contemporaneously with thesigning of the order of approval have been given at least 10 days' writtennotice that approval for the gifts will be sought and that objection may befiled with the clerk of the superior court of the county in which the guardianwas appointed within the 10‑day period. This notice requirement shall bein addition to the notice requirements contained in G.S. 35A‑1341.1(5)and (6) above.
The judge may order that thegifts be made in cash or in specific assets and may order that the gifts bemade outright, in trust, under the North Carolina Uniform Transfers to MinorsAct, under the North Carolina Uniform Custodial Trust Act, or otherwise. Thejudge may also order that the gifts be treated as an advancement of some or allof the amount the donee would otherwise receive at the incompetent's death. (1999‑270,s. 6.)
