The Clerk of Superior Court serves as the Probate Court. The purpose of probate is to distribute a person's estate after death. When a person dies, whether with a Will or without one, that person's assets and property must first be used to pay off debts. After debts are paid, the remaining assets and property are distributed among persons named in the Will or, if the person died without a Will, the estate will be distributed among the family members specified by North Carolina law.
The Estates Division handles all probate matters, including settlement and administration of a decedent's, incompetent's or minor's estate (assets and property); the probate of Wills; small estates; spouse's years allowance; and appointment of guardians for minors and incompetents.
Many Estate forms are available from the Administrative Office of the Courts' web site. They can be found by accessing the North Carolina Administrative Office of the Courts website: www.nccourts.org/Forms/FormSearch.asp
Types of Guardians
There are three different types of guardians who may be appointed for an incompetent person or minor:
Guardian of the Person:
These guardians have the authority to decide medical care and treatment, placement, and all other decisions relating to the care, custody or control of the Ward. These guardians do not, however, have any authority to deal with financial matters or property.
Guardian of the Estate:
These guardians only have the power to control financial matters and property – they do not have any authority to make decisions regarding the care, custody or control of the Ward. A Guardian of the Estate must post a surety bond to protect the Ward's assets from mismanagement or fraud. The guardian must also file annual accountings to be audited by the Clerk of Court.
This type of guardian is one who is both a Guardian of the Person and a Guardian of the Estate – they may make all decisions for the Ward. Since a General Guardian has financial authority, a surety bond must be posted to protect the Ward's assets from mismanagement or fraud. A general guardian must also file accountings with the Clerk.
Bonding & Accounting Requirement
If you have been appointed Guardian for a minor or an incompetent person, you must post a surety bond to protect the Ward's estates from fraud or mismanagement and take an Oath of office. This surety bond acts like an insurance policy, and you will have to pay a premium based on the amount of protection needed (1.25 times the value of personal property or, if the value of the personal property exceeds $100,000, then 1.10 times that amount). Additionally, you will need to file an Inventory of the guardianship assets within three months of receiving your Letters of Guardianship and file yearly accountings with the Clerk's office for audit. These sworn accountings are carefully audited by the Estates Division. You will need to file proof of assets held, income received, and amounts disbursed.
Guardianship is a serious responsibility. Guardians, especially those with financial authority, are therefore advised to read the applicable guardianship statutes or consult with an attorney. Violation of a fiduciary duty may result in removal, loss of commissions, contempt of court, and/or criminal prosecution.
Many Guardianship forms are available through the web site for the Administrative Office of the Courts. They can be found by accessing the North Carolina Administrative Office of the Courts website: www.nccourts.org/Forms/FormSearch.asp
for an Incompetent
How May I Have a Guardian Appointed for a Minor?
A court-appointed legal guardian for a minor may be necessary where the minor will inherit property or receive a settlement arising from an accident. A guardian must be appointed to take charge of the property, protect it, and distribute it for the minor’s best interest. This type of guardian is called a Guardian of the Estate.
The Clerk of Superior Court only has jurisdiction to appoint a Guardian of the Person for any minor that has no living parents or other guardian. The Clerk of Superior Court cannot appoint a Guardian of the Person for a minor if that minor's parents are still living, regardless of whether the parents consent. In this event, the District Court must decide custody.
Parents may nominate a legal guardian for their child by making the nomination in a properly drafted Will – while this nomination will be given significant weight by the Clerk, another guardian may be appointed for good cause.
You may pick up the necessary forms for the appointment of a guardian for a minor from the Estates Division, located on the 2nd floor of the Buncombe County Courthouse.
How May I Have a Guardian Appointed for an Incompetent?
Adults are presumed legally competent to handle their own affairs. Before a person’s right to make basic decisions is taken away, that person must first be adjudicated incompetent at a hearing before the Clerk of Superior Court or a jury. This proceeding is filed as a Special Proceeding and is more fully discussed in the Special Proceedings Divisions section of this website.
Beginning Estate Administration
To better assist you we strongly recommend that you call prior to coming to the Clerk’s office and speak with one of our staff. You may contact us at 828-259-3404 to speak with our scheduling clerk. The clerk will ask you various questions to determine what type of estate you may need to administer and explain what type of information you may need to bring with you. You may set an appointment with one of our staff so that they will be available to help you throughout the administration of the estate.
You may need to bring the following items and information to the Estate division which is located on the 2nd floor, Room #206 of the Buncombe County Courthouse.
- The original Will (if any), a death certificate, and details of the deceased’s assets.
- The value of all assets is the fair market value at the time of death.
- Names of next of kin and/or beneficiaries under a Will, their relationship to the deceased, and their address.
- Bank account numbers and amounts.
- Copies of the signature cards for all bank accounts. (A copy of the Statement is helpful)
- Stock information, including the number of shares, names on stock certificates and the value at the time of death.
- Vehicle values and the names listed on the certificate of title.
- Real estate values and copies of deeds.
- Any gifts of property the deceased may have made within the preceding 3 years of his/her death.
- Any other assets of the decedents and the assets fair market value.
- Any other assets of the deceased.
- Any potential claim for wrongful death – you should see an attorney if the deceased died as a result of an automobile or other accident
Estate administration is oftentimes complex, requiring the completion of many procedures within a required time frame. Handling someone’s estate is a great responsibility. If you incorrectly administer an estate you may be or get sued by family members and/or held in contempt of court. You have a duty to administer the estate competently, accurately, and fairly. Having an experienced estates attorney and tax professional help you is advised, and these expenses may typically be charged against the estate.
While our staff will give you some materials that may help you through the process, the Clerk of Superior Court and staff are specifically prohibited by law from giving you legal advice.