§ 35A-1336.1. Prerequisites to approval by judge of gifts to individuals. - North Carolina Statutes

§35A‑1336.1.  Prerequisites to approval by judge of gifts to individuals.

The judge shall not approvegifts from income to individuals unless it appears to the judge's satisfactionthat both the following requirements are met:

(1)        After making thegifts and paying federal and State income taxes, the remaining income of theincompetent will be reasonable and adequate to provide for the support,maintenance, comfort, and welfare of the incompetent and those legally entitledto support from the incompetent in order to maintain the incompetent and thosedependents in the manner to which the incompetent and those dependents areaccustomed and in keeping with their station in life;

(2)        The judge determinesthat either:

a.         The incompetent,prior to being declared incompetent, executed a paper‑writing with theformalities required by the laws of North Carolina for the execution of a validwill, including a paper‑writing naming as beneficiary a revocable trustcreated by the incompetent, and each donee is entitled to one or more specificlegacies, bequests, devises, or distributions of specific amounts of money,income, or property under the paper‑writing or the revocable trust orboth or is a residuary legatee, devisee, or beneficiary designated in the paper‑writingor revocable trust or both; or

b.         That so far as isknown the incompetent has not, prior to being declared incompetent, executed awill which could be probated upon the death of the incompetent, and each doneeis a person who would share in the incompetent's estate, if the incompetentdied contemporaneously with the signing of the order of the approval of thegifts; or

c.         The donee is thespouse, parent, descendent of the incompetent, or descendant of theincompetent's parent, and the amount of the gift does not exceed the federalannual gift tax exclusion.

The judge may order that thegifts be made in cash or in specific assets and may order that the gifts bemade outright, in trust, under the North Carolina Uniform Transfers to MinorsAct, under the North Carolina Uniform Custodial Trust Act, or otherwise. Thejudge may also order that the gifts be treated as an advancement of some or allof the amount the donee would otherwise receive at the incompetent's death. (1999‑270,s. 3.)