The basic requirements to serve as a personal representative (executor or administrator) of an estate in North Carolina are that the personal representative must be:
- At least 18 years old
- Of sound mind
- Literate
- A non-felon
- Otherwise suitable
These requirements are set forth in N.C. Gen. Stat. § 28A-4-2, which outlines those persons disqualified to serve as personal representative under North Carolina law.
No Felony Convictions Unless Citizenship Restored
North Carolina, like many states, prohibits a person who has been convicted of a felony and whose “citizenship has not been restored” from serving as a personal representative.
Restoration of citizenship means that the person must have completed their sentence and all terms of probation or parole, received an unconditional pardon, and satisfied all terms of a conditional pardon. N.C. Gen. Stat. § 13-1.
A North Carolina Representative Must Be Literate and Otherwise Suitable
North Carolina law states that a person is not qualified to serve as a personal representative if they are illiterate or are a person whom the clerk of superior court finds otherwise unsuitable. N.C. Gen. Stat. § 28A-4-2. “Otherwise suitable” is a case-by-case determination. If this is your basis to challenge the nominated executor from serving, or the person with priority to serve as administrator, you will need to present sufficient grounds to the court to support your challenge.
Acts Barring the Rights Of Spouse To Serve As Personal Representative
A spouse:
- from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained; or
- who voluntarily separates from the other spouse and lives in adultery and such has not been condoned; or
- who wilfully and without just cause abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such spouse’s death; or
- who obtains a divorce the validity of which is not recognized under the laws of this State; or
- who knowingly contracts a bigamous marriage,
loses the right to administer the estate of the other spouse. N.C. Gen. Stat. § 31-A-1.
Do You Have To Serve As Executor If You Are Nominated In a Decedent’s Will?
No, there is no obligation to serve just because you have been nominated to serve as executor in a testator’s North Carolina will. A North Carolina court will not appoint a person to serve as the executor if they decline the position or if they fail to qualify within 30 days after the estate goes into probate. N.C. Gen. Stat. § 28A-4-2. , 28A-5-1.
Can an Out-Of-State Personal Representative Serve In North Carolina?
Yes. An out-of-state personal representative can serve in North Carolina, but there are heightened requirements to do so. A nonresident executor is required to appoint a resident agent in North Carolina to accept service of process in all actions or proceedings with respect to the estate, and cause such appointment to be filed with the court. N.C. Gen. Stat. § 28A-4-2.
It is generally easier to name an executor that lives near you. The executor will be better equipped to handle marshalling your assets because they are in proximity to where you lived your daily life. It will also be easier for your North Carolina probate attorney to work with your executor to efficiently administer your estate.
