§ 35A-1351. Prerequisites to approval of gift. - North Carolina Statutes

§35A‑1351.  Prerequisites to approval of gift.

The judge shall not approvethe gift unless it appears to his satisfaction that:

(1)        It is improbablethat the incompetent will recover competency during his or her lifetime;

(2)        The estate of theincompetent, after making the gift and after payment of any gift taxes whichmay be incurred by reason of the declaration of irrevocability, will besufficient to provide reasonable and adequate income 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 suchdependents in the manner to which the incompetent and such dependents areaccustomed and in keeping with their station in life (and in no event less thantwice the average, for the five calendar years preceding the calendar year ofsuch gift, of expenditures for the incompetent's support, maintenance, comfortand welfare);

(3)        Each donee of anypart of the life interest is a donee to which a competent donor could make agift, without limit as to amount, without incurring federal or State gift taxliability;

(4)        Each donee of anypart of the life interest is a donee qualified to receive tax deductible giftsunder federal and State income tax laws.

(5)        Either:

a.1.      Theincompetent, prior to being declared incompetent, executed a paper‑writing,with the formalities required by the laws of North Carolina for the executionof a valid will;

2.         Specific legacies,bequests or devises of specific amounts of money, income or property includedin such paper‑ writing, will not be jeopardized by making such gifts;

3.         All residuarylegatees and devisees designated in such paper‑writing, who would takeunder the paper‑writing if the incompetent died contemporaneously withthe signing of the order of approval of such gifts, and such paper‑writingwas probated as the incompetent's will and the spouse, if any, of suchincompetent have been given at least 10 days' written notice that approval forsuch gifts will be sought and that objection may be filed with the clerk ofsuperior court, of the county in which the guardian or trustee was appointed,within the 10‑day period; or

b.1.     That so far as is known the incompetent has not prior to being declaredincompetent, executed a will which could be probated upon the death of theincompetent; and

2.         All persons whowould share in the incompetent's estate, if the incompetent diedcontemporaneously with the signing of the order of approval, have been given atleast 10 days' written notice that approval for such gifts will be sought andthat objection may be filed with the clerk of the superior court, of the countyin which the guardian or trustee was appointed, within the 10‑day period.(1963, c. 113, s. 2; 1987, c. 550, s. 6.)