§ 30‑3.4. Procedure fordetermining the elective share.
(a) Exercisable OnlyDuring Lifetime. The right of the surviving spouse to file a claim for anelective share must be exercised during the lifetime of the surviving spouse,by the surviving spouse, by the surviving spouse's attorney‑in‑factif the surviving spouse's power of attorney expressly authorizes the attorney‑in‑factto do so or to generally engage in estate transactions, or, with approval ofcourt, by the guardian of the surviving spouse's estate or general guardian. Ifa surviving spouse dies before the claim for an elective share has beensettled, the surviving spouse's personal representative shall succeed to thesurviving spouse's rights to an elective share.
(b) Time Limitations. A claim for an elective share must be made within six months after the issuanceof letters testamentary or letters of administration in connection with thewill or intestate proceeding with respect to which the surviving spouse claimsthe elective share by (i) filing a petition with the clerk of superior court ofthe county in which the primary administration of the decedent's estate lies,and (ii) mailing or delivering a copy of that petition to the personalrepresentative of the decedent's estate. A surviving spouse's incapacity shallnot toll the six‑month period of limitations.
(c) Time for Hearing. Unless waived by the personal representative and the surviving spouse, theclerk shall set the matter for hearing no earlier than two months and no laterthan six months after the filing of the petition. However, the clerk may extendthe time of hearing as the clerk sees fit. The surviving spouse shall givenotice of the hearing to the personal representative, and to any persondescribed in G.S. 30‑3.5 who may be required to contribute toward thesatisfaction of the elective share.
(d) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(d1) Mediation. Theclerk may order mediation as described in G.S. 7A‑38.3B of any disputesin connection with an elective share proceeding.
(e) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(e1) Procedure. An electiveshare proceeding shall be an estate matter and may be appealed pursuant to G.S.1‑301.3.
(e2) Information AboutTotal Net Assets. In order to assist the clerk in determining whether asurviving spouse is entitled to an elective share, and, if so, the amountthereof, the following provisions apply:
(1) Submission withintwo months. In every case in which a petition to determine an elective sharehas been filed, within two months of the filing of the petition, the personalrepresentative shall submit sufficient information about the total assets forthe clerk to determine the elective share. To fulfill its obligation to provideinformation, the personal representative may prepare and submit to the clerk aproposed Form 706, United States Estate (and Generation‑SkippingTransfer) Tax Return, for the estate, regardless of whether that form isrequired to be filed with the Internal Revenue Service. The clerk may extendthe time for submission of the proposed Form 706 or other information as theclerk sees fit.
(2) Examinationregarding assets. If the personal representative, the surviving spouse, or aresponsible person has reasonable grounds to believe that any person has aclaim or has in its possession assets included in Total Net Assets, then thepersonal representative, surviving spouse, or responsible person may use theprocedures set out in G.S. 28A‑15‑12 to cause the clerk to examinethe person believed to have a claim or to possess assets included in Total NetAssets.
(f) Findings andConclusions. After notice and hearing, the clerk shall determine whether ornot the surviving spouse is entitled to an elective share, and if so, the clerkshall then determine the elective share and shall order the personalrepresentative to transfer that amount to the surviving spouse. The clerk'sorder shall recite specific findings of fact and conclusions of law in arrivingat the decedent's Total Net Assets, Property Passing to Surviving Spouse, andthe elective share.
(g) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1, 2009.
(h) Expenses. Theexpenses (including attorneys' fees) reasonably incurred by the personalrepresentative, other responsible persons, and the surviving spouse inconnection with elective share proceedings shall be equitably apportioned bythe clerk of court in the clerk's discretion among the personal representative,other responsible persons, and the surviving spouse. (2000‑178, s. 2; 2003‑296,s. 4; 2009‑368, s. 1.)
§ 30‑3.4. Procedure fordetermining the elective share.
(a) Exercisable OnlyDuring Lifetime. The right of the surviving spouse to file a claim for anelective share must be exercised during the lifetime of the surviving spouse,by the surviving spouse, by the surviving spouse's attorney‑in‑factif the surviving spouse's power of attorney expressly authorizes the attorney‑in‑factto do so or to generally engage in estate transactions, or, with approval ofcourt, by the guardian of the surviving spouse's estate or general guardian. Ifa surviving spouse dies before the claim for an elective share has beensettled, the surviving spouse's personal representative shall succeed to thesurviving spouse's rights to an elective share.
(b) Time Limitations. A claim for an elective share must be made within six months after the issuanceof letters testamentary or letters of administration in connection with thewill or intestate proceeding with respect to which the surviving spouse claimsthe elective share by (i) filing a petition with the clerk of superior court ofthe county in which the primary administration of the decedent's estate lies,and (ii) mailing or delivering a copy of that petition to the personalrepresentative of the decedent's estate. A surviving spouse's incapacity shallnot toll the six‑month period of limitations.
(c) Time for Hearing. Unless waived by the personal representative and the surviving spouse, theclerk shall set the matter for hearing no earlier than two months and no laterthan six months after the filing of the petition. However, the clerk may extendthe time of hearing as the clerk sees fit. The surviving spouse shall givenotice of the hearing to the personal representative, and to any persondescribed in G.S. 30‑3.5 who may be required to contribute toward thesatisfaction of the elective share.
(d) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(d1) Mediation. Theclerk may order mediation as described in G.S. 7A‑38.3B of any disputesin connection with an elective share proceeding.
(e) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(e1) Procedure. An electiveshare proceeding shall be an estate matter and may be appealed pursuant to G.S.1‑301.3.
(e2) Information AboutTotal Net Assets. In order to assist the clerk in determining whether asurviving spouse is entitled to an elective share, and, if so, the amountthereof, the following provisions apply:
(1) Submission withintwo months. In every case in which a petition to determine an elective sharehas been filed, within two months of the filing of the petition, the personalrepresentative shall submit sufficient information about the total assets forthe clerk to determine the elective share. To fulfill its obligation to provideinformation, the personal representative may prepare and submit to the clerk aproposed Form 706, United States Estate (and Generation‑SkippingTransfer) Tax Return, for the estate, regardless of whether that form isrequired to be filed with the Internal Revenue Service. The clerk may extendthe time for submission of the proposed Form 706 or other information as theclerk sees fit.
(2) Examinationregarding assets. If the personal representative, the surviving spouse, or aresponsible person has reasonable grounds to believe that any person has aclaim or has in its possession assets included in Total Net Assets, then thepersonal representative, surviving spouse, or responsible person may use theprocedures set out in G.S. 28A‑15‑12 to cause the clerk to examinethe person believed to have a claim or to possess assets included in Total NetAssets.
(f) Findings andConclusions. After notice and hearing, the clerk shall determine whether ornot the surviving spouse is entitled to an elective share, and if so, the clerkshall then determine the elective share and shall order the personalrepresentative to transfer that amount to the surviving spouse. The clerk'sorder shall recite specific findings of fact and conclusions of law in arrivingat the decedent's Total Net Assets, Property Passing to Surviving Spouse, andthe elective share.
(g) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1, 2009.
(h) Expenses. Theexpenses (including attorneys' fees) reasonably incurred by the personalrepresentative, other responsible persons, and the surviving spouse inconnection with elective share proceedings shall be equitably apportioned bythe clerk of court in the clerk's discretion among the personal representative,other responsible persons, and the surviving spouse. (2000‑178, s. 2; 2003‑296,s. 4; 2009‑368, s. 1.)
§ 30‑3.4. Procedure fordetermining the elective share.
(a) Exercisable OnlyDuring Lifetime. The right of the surviving spouse to file a claim for anelective share must be exercised during the lifetime of the surviving spouse,by the surviving spouse, by the surviving spouse's attorney‑in‑factif the surviving spouse's power of attorney expressly authorizes the attorney‑in‑factto do so or to generally engage in estate transactions, or, with approval ofcourt, by the guardian of the surviving spouse's estate or general guardian. Ifa surviving spouse dies before the claim for an elective share has beensettled, the surviving spouse's personal representative shall succeed to thesurviving spouse's rights to an elective share.
(b) Time Limitations. A claim for an elective share must be made within six months after the issuanceof letters testamentary or letters of administration in connection with thewill or intestate proceeding with respect to which the surviving spouse claimsthe elective share by (i) filing a petition with the clerk of superior court ofthe county in which the primary administration of the decedent's estate lies,and (ii) mailing or delivering a copy of that petition to the personalrepresentative of the decedent's estate. A surviving spouse's incapacity shallnot toll the six‑month period of limitations.
(c) Time for Hearing. Unless waived by the personal representative and the surviving spouse, theclerk shall set the matter for hearing no earlier than two months and no laterthan six months after the filing of the petition. However, the clerk may extendthe time of hearing as the clerk sees fit. The surviving spouse shall givenotice of the hearing to the personal representative, and to any persondescribed in G.S. 30‑3.5 who may be required to contribute toward thesatisfaction of the elective share.
(d) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(d1) Mediation. Theclerk may order mediation as described in G.S. 7A‑38.3B of any disputesin connection with an elective share proceeding.
(e) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1 , 2009.
(e1) Procedure. An electiveshare proceeding shall be an estate matter and may be appealed pursuant to G.S.1‑301.3.
(e2) Information AboutTotal Net Assets. In order to assist the clerk in determining whether asurviving spouse is entitled to an elective share, and, if so, the amountthereof, the following provisions apply:
(1) Submission withintwo months. In every case in which a petition to determine an elective sharehas been filed, within two months of the filing of the petition, the personalrepresentative shall submit sufficient information about the total assets forthe clerk to determine the elective share. To fulfill its obligation to provideinformation, the personal representative may prepare and submit to the clerk aproposed Form 706, United States Estate (and Generation‑SkippingTransfer) Tax Return, for the estate, regardless of whether that form isrequired to be filed with the Internal Revenue Service. The clerk may extendthe time for submission of the proposed Form 706 or other information as theclerk sees fit.
(2) Examinationregarding assets. If the personal representative, the surviving spouse, or aresponsible person has reasonable grounds to believe that any person has aclaim or has in its possession assets included in Total Net Assets, then thepersonal representative, surviving spouse, or responsible person may use theprocedures set out in G.S. 28A‑15‑12 to cause the clerk to examinethe person believed to have a claim or to possess assets included in Total NetAssets.
(f) Findings andConclusions. After notice and hearing, the clerk shall determine whether ornot the surviving spouse is entitled to an elective share, and if so, the clerkshall then determine the elective share and shall order the personalrepresentative to transfer that amount to the surviving spouse. The clerk'sorder shall recite specific findings of fact and conclusions of law in arrivingat the decedent's Total Net Assets, Property Passing to Surviving Spouse, andthe elective share.
(g) Repealed by SessionLaws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedentsdying on or after October 1, 2009.
(h) Expenses. Theexpenses (including attorneys' fees) reasonably incurred by the personalrepresentative, other responsible persons, and the surviving spouse inconnection with elective share proceedings shall be equitably apportioned bythe clerk of court in the clerk's discretion among the personal representative,other responsible persons, and the surviving spouse. (2000‑178, s. 2; 2003‑296,s. 4; 2009‑368, s. 1.)
