A Guardian for Your Child

August 20, 2015 | Cecil Harvell

Yesterday, the Governor signed Senate Bill 336 into law. Section 2 of that Act—which establishes new procedures for a judicial declaration that a will is valid prior to the petitioner’s death—goes into effect immediately. The full text of Section 2 appears below.

 SECTION 2. Chapter 28A of the General Statutes is amended by adding a new Article to read:

§ 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 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.

(c) Failure to use the procedure authorized by this Article shall not have any evidentiary or procedural effect on any future probate proceedings.

(d) For purposes of this Article only, a "petitioner" is a person who requests a judicial declaration that confirms the validity of that person's will or codicil.

Cecil S. Harvell
About the Author
Cecil S. Harvell is AV Martindale-Hubbell Peer Review Rated in the areas of Trusts and Estates, General Practice, and Aged and Aging. Mr. Harvell is a native of Morehead City, North Carolina and was admitted to the Georgia State Bar in 1983 and admitted to the North Carolina State Bar in 1987. Read More
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