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Can a Convicted Felon be an Executor for an Estate in North Carolina

Updated on March 11, 2013

The Question

In North Carolina, can a convicted felon, who has been released from prison, serve as the executor of an estate?

The Rule

Under NCGS § 28A-4-1, the order of people qualified to serve starts with those specified in a will, or if no will exists or nor personal representative is made, then down the following list:

  1. Surviving Spouse;
  2. Devisee of the testator (Person receiving under a will);
  3. Any heir of the decedent (Persons receiving under intestacy);
  4. Closest next of kin;
  5. Any creditor to whom the decedent became obligated prior to decedent's death;
  6. Any person of good character residing in the county who applies therefor; and
  7. Any other person of good character not disqualified under NCGS § 28A-4-2.

Under NCGS § 28A-4-2, the following persons are disqualified to serve as executors/personal representatives:

  1. Minors (under 8 years of age);
  2. Anyone adjudged as incompetent in a formal proceeding and remains under such disability;
  3. Anyone who is a convicted felon whose citizenship has not been restored;
  4. Anyone who is a nonresident of North Carolina and has not appointed a resident agent to accept service of process;
  5. Any corporation not authorized to act as a personal representative in North Carolina;
  6. Anyone who has lost that person's rights as provided by Chapter 31A (you killed the decedent);
  7. Anyone who is illiterate;
  8. Any person whom the clerk of superior court finds unsuitable;
  9. Any person who has renounced either expressly or by implication.

Specific Rule

Under this specific fact pattern, we're looking at someone who qualifies as an executor because he is an heir of the decedent with no will and no surviving spouse; therefore, under §28A-4-1 the third person on the list is the one that qualifies.

This person is a convicted felon, but has been released from prison. Under North Carolina law, his rights had been fully restored, so he is not disqualified explicitly under § 28A-4-2 unless he fits under one of the later disqualifications.

Even with these rules, it is important to note that the clerk has a lot of authority under these rules to accept or deny a person's request to be the executor of an estate.

Tip: Dress up and be nice to the clerk. If he or she doesn't like you, there's less of a chance to be qualified.

Analysis

Under NCGS § 28A-4-2, subpart 3, it would appear as though a convicted felon would be disqualified by default unless it can be shown that this person's citizenship has been restored; however, that is not the analysis of such a situation. Under North Carolina law, when a convicted felon is released from prison, all rights of citizenship are automatically granted. What this subpart 3 should read is any convicted felon still in prison; therefore, a person who is a convicted felon, yet released from prison is not disqualified under this section.

Any of the other subparts could come into play at any time. Simply avoiding one does not limit a person's possibility of becoming disqualified. It is also a possibility that a person can fit into several of the categories under § 28A-4-2. For our case, we must assume our personal representative does not fit any of the other categories.

Next, we must look to see if this person fits under § 28A-4-1 to determine if he may serve as an executor or personal representative. First and foremost, we look to any written instructions from the decedent. If there is no will, we must go through § 28A-4-1, like we have in this case.

The first person qualified to serve as an executor without a will would be the surviving spouse. Under our fact pattern, there is no surviving spouse, so we move to the next rung. Sincere there is no will, there can be no devisee; therefore any heir of the decedent may serve as executor. We are working with the only child of the decedent, so under North Carolina law, the choice is fairly clear. This person qualifies as the closest person under § 28A-4-1 and is not specifically disqualified because of his felony record.

Furthermore, this person should not be required to put down any bond to serve as executor because there are no other interests at stake. As noted earlier, he is the only child of the decedent, so there are no other people receiving property under this estate aside from creditors. Therefore, a bond would not protect anyone.

Summary

Under North Carolina law, convicted felons are not specifically excluded from serving as executors to an estate. They may be required to obtain a bond to protect other parties if the clerk feels it is in the best interest of the interested parties of the estate; however, the list of those who may serve as executor maps directly with who would receive property under intestacy laws. Therefore, the process is designed to ensure people are as protected as possible when processing someone's estate.

Does this statute do enough to protect the public?

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