You did your homework, made your estate plans, and executed your last will and testament.  However, after your death, your family or friends are unable to locate your original will.  They may have only a signed or unsigned copy or nothing at all.  Perhaps the original will was destroyed in a fire or lost in a move or a family member was told that the handwritten will wasn’t worth the paper it was written on and they tore it up and threw it away (true story) or your relatives simply are unable to find your original will (tip to friends and family – don’t forget to check the family bible or the freezer).

In these situations, is all hope lost?  Will your property descend pursuant to intestate succession (i.e. to heirs according to State law) despite your careful estate planning?  Well, not quite.  It is possible to probate a lost or destroyed will in North Carolina upon certain proof to the court.   This process is not set forth in statute, but instead is derived from case law.   So where exactly does one seeking to probate a lost or destroyed will start?   Below are some key questions to consider when facing this situation. Continue Reading

Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50^th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.

Subchapter I of G.S. Chapter 7B (the Juvenile Code) governs child abuse, neglect, dependency, and termination of parental rights cases in North Carolina. The Juvenile Code “sets out a sequential process for abuse, neglect, or dependency cases, wherein each required action or event must occur within a prescribed amount of time after the preceding stage in the case.” In re T.R.P., 360 N.C. 588, 593 (2006). Included in the statutory time frames are the timing for entry of orders. What exactly does the Juvenile Code require? And, why does it matter? Continue Reading

Before October 1, 1994, it was not always easy to tell if and/or when a court order or judgment had been entered. The law allowed entry of judgment based on an oral rendition by the judge in certain circumstances and it was not uncommon for disputes to arise over whether a proper notation of the rendition had been made upon the court record as required for an actual entry of judgment to occur. Because it generally is very important for parties and the court to know precisely when an order or judgment is entered and enforceable, Rule 58 of the Rules of Civil Procedure was amended effective October 1, 1994, to make the moment of entry of judgment more easily identifiable. According to Rule 58, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” This means that since October 1, 1994, statements made by the judge from the bench are not enforceable orders or judgments and a judge is not required to enter a written order or judgment that conforms to any statement made from the bench.

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On April 10, 2017, New York’s governor, Andrew Cuomo, signed legislation raising the age of criminal responsibility in the state of New York from 16 to 18. New York and North Carolina were previously the only two states that automatically prosecuted 16-year-olds as adults. Long-standing raise the age campaigns in both states have repeatedly failed due to conflicting views about the need to rehabilitate juveniles versus the need to maintain public safety. New York lawmakers recently reached a compromise that raises the age for most juveniles but still allows violent offenders to be tried as adults. A similar approach being considered by North Carolina lawmakers would raise the age of juvenile court jurisdiction to include 16 and 17-year-olds who commit misdemeanors and nonviolent felonies, but would exclude violent offenders. Here’s how NC’s raise the age proposal compares to NY’s new law.

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