North Carolina Statutory Changes

By Anthony D. Nicholson

For Elder & Special Needs Law attorneys, there are some significant new North Carolina statutory changes we need to be aware of. Would you like to file all your probate, guardianship and other court filings online? I hope so. Soon you will be required to do so. Tired of going through the full guardianship process for a single transaction and then undoing the guardianship when the transaction is completed? There is a new fix for that. The basics are below. For a more detailed description of the statutory changes, see the Legislative Update section of the manuscript for the 2021 Annual Estate Planning & Fiduciary Law Program.

Odyssey – Electronic Filing of Court Documents – In a phased rollout plan over the next three years, all court documents will need to be filed electronically (pro se filers may still use paper filings). This includes all probate documents, guardianship filings, motions, orders, judgments, etc., whether filed before the Clerk of Court or in Superior Court. The first phase goes into effect on August 23, 2021, and includes the counties of Wake, Harnett, Johnston and Lee.

SL 2021-53 was signed by the governor on June 25. I want to highlight two of the changes; both will take effect on October 1, 2021:

  1. Living Probate for Trusts – Part I – Living Probate for a will has been an option for a few years. Now your client who has a revocable trust can utilize the process to lock in the disposition of his or her trust and avoid potential challenges to his or her trust on the basis of lack of capacity or undue influence.
  2. Single Protective Arrangement/Transaction Approval in Guardianship – Part II – This is a method for the approval of a single transaction or a protective arrangement for a person for whom a guardianship would otherwise need to be established in order to effect the transaction. The Clerk can approve the transaction without actually appointing a guardian. The AOC will likely modify the guardianship forms, but we’ll need to create our own petitions initially. This will be helpful in many situations (some common and some obscure):
    1. Creating or funding d4A trusts for minors or incompetent adults who would not need a guardian of the estate because, for example, they don’t have any other assets and their only income is SSI/SSDI.
    2. The signing of a deed for a minor child who inherits real estate, or the signing of deed for an incompetent spouse whose other assets are jointly held with the other spouse.
    3. A Medicaid spenddown for an incompetent senior who needs long-term care and who does not have a power of attorney.

SL 2021-85 was signed by the governor on July 8 and all the changes took effect on July 8.

  1. Location Requirement for Holographic Wills – Part I – A holographic will no longer needs to be found among the testator’s valuable papers or effects, or stored at the attorney’s office. Whether it is found on the living room floor, underneath the passenger seat of the car, or anywhere else, the location where the will is found is no longer a requirement for a valid holographic will. The other requirements remain in place.
  2. Updates to North Carolina Trust Code on Power Holders – Part II – Updates various provisions in NCGS 36C – 8A regarding power holders such as trust protectors, trust advisors, etc., to make the statute more consistent with the 2017 Uniform Directed Trust Act. The definition of “power holder” is expanded and the duties and liabilities of a power holder were rewritten and clarified.
  3. Powers of Appointments in Trusts Excluded From Rule Against Perpetuities – Part III – Although NCGS 41-23(h) states that the rule against perpetuities does not apply to trusts, the statutory change clarifies that powers of appointment created in trusts are not subject to the statutory rule against perpetuities.