Legal Question in Wills and Trusts in North Carolina

Hello.

Wow. You have a very complicated set of facts. The law on the subject is complicated as well. Any information I could responsibly give you would depend on a lot of information you have not provided and that I would have to actually interview you to get. That takes time. Unfortunately, due to the limited nature of this type of interaction, the best thing for you to do is actually meet with an attorney. This forum lends itself better to people with one or two general questions asking an attorney for general information. If you would like to set up a time to come into my office, feel free to call at 704-953-1884. If you are not in my geographical area and cannot get to my office, I can refer you to another attorney who is more local. But whichever way you go, you will have to hire and pay an attorney. I wish you the best of luck with your situation.

You leave out the important facts. Such as - did your mother have a will? Who was appointed as personal representative of your mother's estate? Where did your reside at the time of her death? What assets are solely your mother's?

Assuming this is NC, then the question is whether your mother had a will. If your mother had a will, then your mother's probate assets will pass as per the terms of her will. Non-probate assets (like life insurance, IRAs or joint checking accounts) will pass outside of probate to the designated beneficiary or surviving joint account holder.

If there is no will, then 1/2 - 1/3 of the assets would pass to your step-father as he was married to your mother and the other portion would pass to you and any of your mother's other children (if your mother had 2 or more children, your stepfather gets 1/3 and you and your siblings get 2/3; if there is only you, you and your step-father split the assets).

Since I don't know if your mother had a will or what assets your mother had at the time of her death or how they were titled, I don't know what if anything you were entitled to receive.

Further complicating this is that your step-father is now incompetent. It may be unfair, but his guardian of his person and property can exclude you. It may be that they are working on settling your mother's estate. The assets should have been inventoried by now and there would be no harm in distributing mementos and other personal property, but obviously family dynamics are at work here and they are not going to be cooperative.

If that is the case, then you have two options: (1) you will have to find the money and get a lawyer, particularly if you are the beneficiary under your mother's will or the intestacy laws and there are substantial assets to which you are entitled; or (2) you will have to wait until your mother's estate is adjudicated.

Your starting point is to go to the probate court and get a copy of the estate file. At a minimum, you need a copy of the will (if any), a list of the named or intestate heirs, the preliminary inventory and 90-day inventory and an accounting.

Its been 2 years and there are no excuses for your mother's estate not being completed. If the personal representative is dragging his/her feet, then you can file a petition to have the personal representative removed. The clerk also can compel the personal representative to file the documents (like the inventory or accounting).

What do you mean that your mother's second husband is your "biological" but not legal father? Were you adopted by someone else?

There is a lot of information you are not divulging and a message board of this type is not the place to do so. I recommend that you get a copy of your mother's estate file and pay a probate litigation attorney to review the matter and advise you of your options. Perhaps the attorney can write a letter to counsel and get things moving without the need to file petitions.