§ 35A-1341. Prerequisites to approval by judge of gifts for governmental or charitable purposes. - North Carolina Statutes

§35A‑1341.  Prerequisites to approval by judge of gifts for governmentalor charitable purposes.

The judge shall not approveany gifts from principal for governmental or charitable purposes unless itappears to the judge's satisfaction all of the following requirements are met:

(1)        The making of thegifts will not leave the incompetent's remaining principal estate insufficientto provide reasonable and adequate income for the support, maintenance, comfortand welfare of the incompetent and those legally entitled to support from theincompetent in order to maintain the incompetent and these dependents in themanner to which the incompetent and those dependents are accustomed and inkeeping with their station in life.

(2)        Each donee is adonee to which a competent donor could make a gift, without limit as to amount,without incurring federal or State gift tax liability.

(3)        Each donee is adonee qualified to receive tax deductible gifts under federal and State incometax laws.

(4)        The making of thegifts will not jeopardize the rights of any creditor of the incompetent.

(5)        It is improbablethat the incompetent will recover competency during his or her lifetime.

(5a)      Sufficient credibleevidence is presented to the court that the proposed gift is of a nature whichthe incompetent would have approved prior to being declared incompetent.

(6)        Either a. or b.applies:

a.         All of the followingapply:

1.         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.

2.         Specific legacies,bequests, devises, or nondiscretionary distributions of specific amounts ofmoney, income or property included in the paper‑writing or revocabletrust or both, will not be jeopardized by making the gifts.

3.         All residuarylegatees, devisees and beneficiaries designated in the paper‑writing orrevocable trust or both, who would take under the paper‑writing orrevocable trust or both, if the incompetent died contemporaneously with thesigning of the order of approval of the gifts and the paper‑writing wasprobated as the incompetent's will and the spouse, if any, of the incompetenthave been given at least 10 days' written notice that approval for the giftswill be sought and that objection may be filed with the clerk of superior courtof the county in which the guardian was appointed, within the 10‑dayperiod.

b.         Both of thefollowing apply:

1.         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

2.         All persons whowould share in the incompetent's intestate estate, if the incompetent diedcontemporaneously with the signing of the order of approval, have been given atleast 10 days' written notice that approval for the gifts will be sought andthat objection may be filed with the clerk of the superior court, of the countyin which the guardian was appointed, within the 10‑day period.

(7)        If the gift forwhich approval is sought is of a nonprobate asset, all persons who would sharein that nonprobate asset if the incompetent died contemporaneously with thesigning of the order of approval have been given at least 10 days' writtennotice that approval for the gifts will be sought and that objection may befiled with the clerk of superior court of the county in which the guardian wasappointed within the 10‑day period. This notice requirement shall be inaddition to the notice requirements contained in G.S. 35A‑1341(6)a.3. and(6)b.2. (1963, c. 112, s. 2; 1987, c. 550, s. 5; 1999‑270,s. 5.)