Administration of Estate ?

[Grace_Adler]

What is the name of your state? NC

Would someone please explain this statute to me? I'm trying to find out if my half sister has any legal claim to my father's estate. She's 30 yrs. old and paternity has never been legally established.


Article 3.
Civil Actions Regarding Illegitimate Children.
§ 49-14. Civil action to establish paternity.
(a)The paternity of a child born out of wedlock may be
established by civil action at any time prior to such child's
eighteenth birthday. A certified copy of a certificate of birth
of the child shall be attached to the complaint. The
establishment of paternity shall not have the effect of
legitimation. The social security numbers, if known, of the
minor child's parents shall be placed in the record of the
proceeding.
(b) Proof of paternity pursuant to this section shall be by
clear, cogent, and convincing evidence.
(c) No such action shall be commenced nor judgment entered
after the death of the putative father, unless the action is
commenced either:
(1) Prior to the death of the putative father;
(2) Within one year after the date of death of the
putative father, if a proceeding for administration
of the estate of the putative father has not been
commenced within one year of his death; or
(3) Within the period specified in G.S. 28A-19-3(a) for
presentation of claims against an estate, if a
proceeding for administration of the estate of the
putative father has been commenced within one year
of his death.
Any judgment under this subsection establishing a decedent to be
the father of a child shall be entered nunc pro tunc to the day
preceding the date of death of the father.
(d) If the action to establish paternity is brought more than
three years after birth of a child or is brought after the death
of the putative father, paternity shall not be established in a
contested case without evidence from a blood or genetic marker
test.
(e) Either party to an action to establish paternity may
request that the case be tried at the first session of the court
after the case is docketed, but the presiding judge, in his
discretion, may first try any pending case in which the rights
of the parties or the public demand it.
(f) When a determination of paternity is pending in a IV-D
case, the court shall enter a temporary order for child support
upon motion and showing of clear, cogent, and convincing
evidence of paternity. For purposes of this subsection, the
results of blood or genetic tests shall constitute clear,
cogent, and convincing evidence of paternity if the tests show
that the probability of the alleged parent's parentage is
ninety-seven percent (97%) or higher. If paternity is not
thereafter established, then the putative father shall be
reimbursed the full amount of temporary support paid under the
order.
(g) Invoices for services rendered for pregnancy, childbirth,
and blood or genetic testing are admissible as evidence without
requiring third party foundation testimony and shall constitute
prima facie evidence of the amounts incurred for the services or
for testing on behalf of the child. (1967, c. 993, s. 1; 1973,
c. 1062, s. 3; 1977, c. 83, s. 2; 1981, c. 599, s. 14; 1985, c.
208, ss. 1, 2; 1993, c. 333, s. 3; 1995, c. 424, ss. 1, 2;
1997-154, s. 1; 1997-433, ss. 4.2, 4.10; 1998-17, s. 1.)

 

[Grace_Adler]

Also this:

Article 6.
Illegitimate Children.
§ 29-19. Succession by, through and from illegitimate
children.
(a)For purposes of intestate succession, an illegitimate
child shall be treated as if he were the legitimate child of his
mother, so that he and his lineal descendants are entitled to
take by, through and from his mother and his other maternal
kindred, both descendants and collaterals, and they are entitled
to take from him.
(b) For purposes of intestate succession, an illegitimate
child shall be entitled to take by, through and from:
(1) Any person who has been finally adjudged to be the
father of such child pursuant to the provisions of
G.S. 49-1 through 49-9 or the provisions of G.S.
49-14 through 49-16;
(2) Any person who has acknowledged himself during his
own lifetime and the child's lifetime to be the
father of such child in a written instrument
executed or acknowledged before a certifying
officer named in G.S. 52-10(b) and filed during his
own lifetime and the child's lifetime in the office
of the clerk of superior court of the county where
either he or the child resides.
Notwithstanding the above provisions, no person shall be
entitled to take hereunder unless he has given written notice of
the basis of his claim to the personal representative of the
putative father within six months after the date of the first
publication or posting of the general notice to creditors.
(c) Any person described under subdivision (b)(1) or (2)
above and his lineal and collateral kin shall be entitled to
inherit by, through and from the illegitimate child.
(d) Any person who acknowledges himself to be the father of
an illegitimate child in his duly probated last will shall be
deemed to have intended that such child be treated as expressly
provided for in said will or, in the absence of any express
provision, the same as a legitimate child. (1959, c. 879, s. 1;
1973, c. 1062, s. 1; 1975, c. 54, s. 1; 1977, c. 375, s. 6; c.
591; c. 757, s. 3.)


§ 29-20. Descent and distribution upon intestacy of
illegitimate children.
All the estate of a person dying illegitimate and
intestate shall descend and be distributed, subject to the
payment of costs of administration and other lawful claims
against the estate, and subject to the payment of State
inheritance or estate taxes, as provided in this Article. (1959,
c. 879, s. 1; 1999-337, s. 6.)

 

[Grace_Adler]

I have some more questions as well.

1. Does anyone know how long it takes before the administrator of the estate can begin to work on distribution?

2. Are there any hearings the heirs need to go to? How does the procedure work?

3. If you signed a waiver for the administrator to put up a bond, can the clerk of court take legal action against them and force them to distribute things according to the law? There is no probate court here, the Clerk of Court is in charge of overseeing everything. I was just wondering what legal remedies there are since a waiver was signed, there will be no bond to go after.

4. There are statutes about advancements of an inheritance. I was wondering if an heir was "told" they already recieved their inheritance, is the person's word and a witness good enough to prove that they recieved their share of the inheritance? I can post the statutes if someone wants. I just thought I posted enough statutes for now. LOL

Thanks for any responses in advance.

 

[Lil Miss Smarty Panties]

The way I'm understanding it is, if paternity was never established and she's now 30 yrs old, she has no claim unless he specifically expressed that he wanted her to have something in his will. But what do I know LOL

 

[Grace_Adler]

LOL! Well still, it helps to know that someone else is reading it the same way as me. Thanks for answering me though.

Oh yeah, what is nunc pro tunc? Anyone? Anyone?

 

[CMSC]

well I emailed you this but it came back to me! I think I spelled your addy wrong or somethin'!LOL I know, I am a dork!



This part " (d) Any person who acknowledges himself to be the father of
an illegitimate child in his duly probated last will shall be
deemed to have intended that such child be treated as expressly
provided for in said will or, in the absence of any express
provision, the same as a legitimate child. (1959, c. 879, s. 1;
1973, c. 1062, s. 1; 1975, c. 54, s. 1; 1977, c. 375, s. 6; c.
591; c. 757, s. 3.)"


Is basically the only way your half sister will have any claim to anything. Unless dad had a will, which you don't think he does, and he named her in there as an heir to his estate or anything and lists her as a child. Ya know basically what LMSP


Also she could request paternity be established post mortem...not sure how likely that is to happen but ya just never know.

 

[CMSC]

I have some more questions as well.

1. Does anyone know how long it takes before the administrator of the estate can begin to work on distribution?

2. Are there any hearings the heirs need to go to? How does the procedure work?

3. If you signed a waiver for the administrator to put up a bond, can the clerk of court take legal action against them and force them to distribute things according to the law? There is no probate court here, the Clerk of Court is in charge of overseeing everything. I was just wondering what legal remedies there are since a waiver was signed, there will be no bond to go after.

4. There are statutes about advancements of an inheritance. I was wondering if an heir was "told" they already recieved their inheritance, is the person's word and a witness good enough to prove that they recieved their share of the inheritance? I can post the statutes if someone wants. I just thought I posted enough statutes for now. LOL

Thanks for any responses in advance.

goodness I have tried to come up with these answers and have had no luck. But I would suggest maybe taking these questions and making another post with just these? Maybe it will catch someones eye.

 

[Grace_Adler]

LOL Thanks for trying.

Ok, I will say it too. You are a dork. But hey, no more so than me. LOL

The thing that is throwing me off is the testing one year after the putative father's death. I'm thinking that means as long as it is prior to the child's 18th birthday and after that they are SOL. ?? I dunno.

All this is throwing me off too.

(2) Within one year after the date of death of the
putative father, if a proceeding for administration
of the estate of the putative father has not been
commenced within one year of his death; or
(3) Within the period specified in G.S. 28A-19-3(a) for
presentation of claims against an estate, if a
proceeding for administration of the estate of the
putative father has been commenced within one year
of his death.
Any judgment under this subsection establishing a decedent to be
the father of a child shall be entered nunc pro tunc to the day
preceding the date of death of the father.
(d) If the action to establish paternity is brought more than
three years after birth of a child or is brought after the death
of the putative father, paternity shall not be established in a
contested case without evidence from a blood or genetic marker
test.

3. Has already been done. Well I mean, my brother already filed to be administrator. I guess she could file to be co-administrator if the law says she is entitled to part of the estate. But then wouldn't she have to put up a bond? My brother doesn't have to since we signed a waiver. The law says it has to be like 1/4 of the estate or something. She doesn't have that kind of money. But I still don't really understand #3.

3d. Like I said, I'm wondering if that means the testing has to be done before the child's 18th birthday since that age is mentioned above. Also, how would they do a test now anyway? On me? I wouldn't think they would exume (sp?) the body. Who would be able to contest the case if anyone?

AAHHH! This is so confusing!

 

[Lil Miss Smarty Panties]

I do know that they could do a DNA test using one of his relatives DNA. I saw that done on the history channel. They used Prince Edwards DNA to check against the woman who claimed she was Princess Anastasia. He was apparently a relative of the russian royal family that was slaughtered.

The way I'm reading it, she would have to be 18 or under? to dispute paternity after his death. Are you absolutely sure there is nothing confirming paternity? I wish a lawyer would answer this LOL

 

[Grace_Adler]

I'm about 99% sure. I know she said it says "father unknown" on her birth certificate and as far as I know he never signed an Affadavit of Paternity. I dunno if they even had them in VA in 1972. She also said he wanted him to do a paternity test so she could change her birth certificate and last name. I know he never did one. She also said to me that my brother and sister weren't going to stand in her way of getting her inheritance, even if it meant exuming the body. Her half brother also told my father this right before Christmas. (Nice huh?)

Also my father said to her (he said it in front of me and my husband and my mother as well) that she already got all her inheritance as far as he was concerned and wasn't getting another thing from him. (Hell, she got more than what she would be entitled to now.) So that's why I wanted to know if that would be considered heresay or if it is enough proof to prove she got an advancement, which would mean she isn't entitled to anything else under that statute either. Oh then there is the part of how he "disowned" her 5 yrs ago. That's a long story.

I still want to know about my other questions too. I'm sure more will come up.

Dangit! I wish a lawyer would help us out too. Where are they when you need one? Maybe I ticked someone off and didn't know it? I don't think IAAL is speaking to me right now. LOL

Is there a lawyer in the house?

 

[CMSC]

LOL Thanks for trying.

Ok, I will say it too. You are a dork. But hey, no more so than me. LOL

The thing that is throwing me off is the testing one year after the putative father's death. I'm thinking that means as long as it is prior to the child's 18th birthday and after that they are SOL. ?? I dunno.

All this is throwing me off too.

(2) Within one year after the date of death of the
putative father, if a proceeding for administration
of the estate of the putative father has not been
commenced within one year of his death; or
(3) Within the period specified in G.S. 28A-19-3(a) for
presentation of claims against an estate, if a
proceeding for administration of the estate of the
putative father has been commenced within one year
of his death.

My Response: Okay I don't think it means if the child is under 18. It just says that any civil action to prove paternity can't happen after 2&3 have happened.

Basically 2 says that paternity can still be established after one year of your dad's death IF the estate hasn't been settled yet.

Number 3, says ummm I don't know!LOL sorry!


Any judgment under this subsection establishing a decedent to be
the father of a child shall be entered nunc pro tunc to the day
preceding the date of death of the father.
(d) If the action to establish paternity is brought more than
three years after birth of a child or is brought after the death
of the putative father, paternity shall not be established in a
contested case without evidence from a blood or genetic marker
test.

3. Has already been done. Well I mean, my brother already filed to be administrator. I guess she could file to be co-administrator if the law says she is entitled to part of the estate. But then wouldn't she have to put up a bond? My brother doesn't have to since we signed a waiver. The law says it has to be like 1/4 of the estate or something. She doesn't have that kind of money. But I still don't really understand #3.

My Response: Oh, you know what, I think your brother could have her sign the same papers he had you sign saying that he is the administrator and she gives up all rights to be an admin. Is that something that you signed? I think I am going to call you in a bit if you are still awake!

3d. Like I said, I'm wondering if that means the testing has to be done before the child's 18th birthday since that age is mentioned above. Also, how would they do a test now anyway? On me? I wouldn't think they would exume (sp?) the body. Who would be able to contest the case if anyone?

They could test the siblings. I believe it would be the siblings who would contest it as well.

AAHHH! This is so confusing!

Oh and nunc pro tunc is used to express that a thing is done at one time which ought to have been performed at another. Leave of court must be obtained to do things nunc pro tunc, and this is granted to answer the purposes of justice, but never to do injustice. A judgment nunc pro tunc can be entered only when the delay has arisen from the act of the court.

Not that that definition made ANY sense but I think I get it!LOL Lets say in a divorce some papers or something was suppose to be included in the proceeding but it wasn't. Then it will be filed nunc pro tunc and be treated as if it was originally filed when it was suppose to be?

I don't know but I have a feeling some attorneys are laughing their asses off right now watching me try to explain any of this.

 

[Grace_Adler]

OK, I liked your example better than your explanation. LOL I was like HUH?

Maybe that's why none of the attorneys have responded. They are probably having a good laugh at all of our expenses.

Hey, I'm eating some birthday cake and ice cream. You guys want some?

 

[Whyte Noise]

Brain....... spinning......

Synaptic.......overload.....

Too much input!!!
Too much input!!!

Johnny 5 is ALIVE!!!



Ok, lets see here... I get part 3(d). What that says is that the ONLY way that paternity can be established after the death of the putative father or 3 years after the birth of the child in a contested case is by DNA evidence only. And, since she's 30, I'd say it was more than 3 years after her birth. In other words, she has to prove she's his legal heir by DNA testing. But I get ahead of myself... let's try this one section at a time...

Article 3, 49.14(a)... thats the one that says paternity may be established in a civil action before the child's 18th b'day.
(b) has to be by clear and convincing evidence (i.e. DNA testing)
(c)Long story short, a paternity action can't be started after the death of the father. If it has "started" before he died, but the results werent in yet, thats a different thing. it can still go through. OR if within one year of the father's death, no proceeding has been started concerning the administration of the estate, she could ask for a paternity test. But your brother has already started proceedings, correct? OR if she's brought a claim against the estate. Then, (d) I have up there ^^^^. But this is confusing... it tells you in (a) that it is to be within three years of the birth of the child, or before the alleged father's death, then in (d) it tells you what to do IF it's been longer than 3 years after birth....So D kinda contradicts what A says...

Ah, to hell with it.... the way I read all these statutes is this.... your father never acknowledged anything in writing in the courts establishing her as his daughter. His name not on BC, no AOP, no nothing. The only way she's going to get anything is if she can prove, thru DNA that she is INDEED his child. Yes, she can contest the estate and try to get her "entitlement" she thinks she's due, but unless she has PROOF that he's her father, and that proof is DNA evidence like it says it has to be in the statutes, she's pissing in the wind. The statutes read that the only way paternity can be established in a contested case (like yours apparently is because she's wanting her "cut") is thru "evidence from a blood or genetic marker test." as it states in (d).

Gawd, Probate Law makes my head hurt!! LOL Family Law is so much easier to figger out!

Y o ) }}}}}

 

[Grace_Adler]

ROTFLMAO Poor thing. Is there anything I can get you to help you out with your overload? Birthday cake? Ice cream? A smoke? A shot? LOL

Thank you so much for trying. I was thinking it contradicted itself too. So are you saying the court could make us take a DNA test? Is it possible after the 18th birthday? They wouldn't exume the body would they? I mean, how the hell do they go about this? S*** how long can she keep this in probate? GAWD, I'm still confused. LOL

Yes, my brother has already started proceedings for administration. Yes, it appears she is trying to stake a claim or whatever you call it. My brother recieved a letter in the mail yesterday from her attorney. I'm surprised she got the money to retain one. I don't even know how they got his address unless her attorney went to the courthouse and looked up filings for all this and saw his address on a file or something.


Oh yeah, after you get your circuts working again do you want to take a stab at my other questions? I can posts some links to the statutes if you want.

 

[Lil Miss Smarty Panties]

is that a left boobie up there? ^^^^^^