State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_35A > GS_35A-1301


Article 14.

Sale, Mortgage, Exchangeor Lease of Ward's Estate.

§ 35A‑1301.  Specialproceedings to sell, exchange, mortgage, or lease.

(a)        Whenever usedherein, the word "guardian" shall be construed to include generalguardian, guardian of the estate, ancillary guardian, next friend, guardian adlitem, or commissioner of the court acting pursuant to this Article, but not aguardian who is guardian of the person only; and the word "mortgage"shall be construed to include deeds of trust.

(b)        A guardian mayapply to the clerk, by verified petition setting forth the facts, to sell,mortgage, exchange, or lease for a term of more than three years, any part ofhis ward's real estate, and such proceeding shall be conducted as in othercases of special proceedings.  The clerk, in his discretion, may direct thatthe next of kin or presumptive heirs of the ward be made parties to suchproceeding.  The clerk may order a sale, mortgage, exchange, or lease to bemade by the guardian in such way and on such terms as may be most advantageousto the interest of the ward, upon finding by satisfactory proof that:

(1)        The ward's interestwould be materially promoted by such sale, mortgage, exchange, or lease, or

(2)        The ward's personalestate has been exhausted or is insufficient for his support and the ward islikely to become chargeable on the county, or

(3)        A sale, mortgage,exchange, or lease of any part of the ward's real estate is necessary for hismaintenance or for the discharge of debts unavoidably incurred for hismaintenance, or

(4)        Any part of theward's real estate is required for public purposes, or

(5)        There is a validdebt or demand against the estate of the ward; provided, when an order isentered under this subdivision, (i) it shall authorize the sale of only so muchof the real estate as may be sufficient to discharge such debt or demand, and(ii) the proceeds of sale shall be considered as assets in the hands of theguardian for the benefit of creditors, in like manner as assets in the hands ofa personal representative, and the same proceedings may be had against theguardian with respect to such assets as might be taken against an executor,administrator or collector in similar cases.

The order shall specify particularlythe property thus to be disposed of, with the terms of leasing or sale orexchange or mortgage, and shall be entered at length on the records of thecourt.  The guardian may not mortgage the property of his ward for a term ofyears in excess of the term fixed by the court in its order.

(c)        In the case of award who is a minor, no sale, mortgage, exchange, or lease under this Articleshall be made until approved by the superior court judge, nor shall the same bevalid, nor any conveyance of the title made, unless confirmed and directed bythe judge, and the proceeds of the sale, mortgage, exchange, or lease shall beexclusively applied and secured to such purposes and on such trusts as thejudge shall specify.

(d)        All petitions filedunder this section wherein an order is sought for the sale, mortgage, exchange,or lease of the ward's real estate shall be filed in the county in which all orany part of the real estate is situated.

(e)        The procedure for asale pursuant to this section shall be as provided by Article 29A of Chapter 1of the General Statutes.

(f)         Nothing hereincontained shall be construed to divest the court of the power to order privatesales as heretofore ordered in proper cases.

(g)        On and after June1, 1973, no sales of property belonging to minors or incompetent persons priorto that date by next friend, guardian ad litem, or commissioner of the courtregular in all other respects shall be declared invalid nor shall any claim ordefense be asserted on the grounds that said sale was not made by a dulyappointed guardian as provided herein or on the grounds that said minor orincompetent person was not represented by a duly appointed guardian. (1987,c. 550, s. 1; 1989, c. 473, s. 6.)