§ 1-301.3. Appeal of estate matters determined by clerk. - North Carolina Statutes

§1‑301.3.  Appeal of estate matters determined by clerk.

(a)        Applicability. –This section applies to matters arising in the administration of testamentarytrusts and of estates of decedents, incompetents, and minors. G.S. 1‑301.2applies in the conduct of a special proceeding when a special proceeding isrequired in a matter relating to the administration of an estate.

(b)        Clerk to DecideEstate Matters. – In matters covered by this section, the clerk shall determineall issues of fact and law. The clerk shall enter an order or judgment, asappropriate, containing findings of fact and conclusions of law supporting theorder or judgment.

(c)        Appeal to SuperiorCourt. – A party aggrieved by an order or judgment of the clerk may appeal tothe superior court by filing a written notice of the appeal with the clerkwithin 10 days of entry of the order or judgment. The notice of appeal shallspecify the basis for the appeal. Unless otherwise provided by law, a judge ofthe superior court or the clerk may issue a stay of the order or judgment uponthe appellant's posting an appropriate bond set by the judge or clerk issuingthe stay. While the appeal is pending, the clerk retains authority to enterorders affecting the administration of the estate, subject to any order enteredby a judge of the superior court limiting that authority.

(d)        Duty of Judge onAppeal. – Upon appeal, the judge of the superior court shall review the orderor judgment of the clerk for the purpose of determining only the following:

(1)        Whether the findingsof fact are supported by the evidence.

(2)        Whether theconclusions of law are supported by the findings of facts.

(3)        Whether the order orjudgment is consistent with the conclusions of law and applicable law.

It is not necessary for a party toobject to the admission or exclusion of evidence before the clerk in order topreserve the right to assign error on appeal to its admission or exclusion. Ifthe judge finds prejudicial error in the admission or exclusion of evidence,the judge, in the judge's discretion, shall either remand the matter to theclerk for a subsequent hearing or resolve the matter on the basis of therecord. If the record is insufficient, the judge may receive additionalevidence on the evidentiary issue in question. The judge may continue the caseif necessary to allow the parties time to prepare for a hearing to receiveadditional evidence.

(e)        Remand AfterDisposition of Issue on Appeal. – The judge, upon determining the matterappealed from the clerk, shall remand the case to the clerk for such furtheraction as is necessary to administer the estate.

(f)         Recording ofEstate Matters. – In the discretion of the clerk or upon request by a party,all hearings and other matters covered by this section shall be recorded by anelectronic recording device. A transcript of the proceedings may be ordered bya party, by the clerk, or by the presiding judge. If a recordation is not made,the clerk shall submit to the superior court a summary of the evidencepresented to the clerk. (1999‑216, s. 1.)