I successfully got my sibling removed as Executor of my deceased parents estate. I have spoken to my attorney but I am still unclear on matters of appeal. If my sibling decides to appeal, will there be a whole new trial or just an inquiry as to the details of the 1st Hearing? Will they have to prove some error or can they simply demand a new hearing, trial?
Elder Law Attorney
I would recommend following up with your attorney for advice on the possible appeal. He or she should be able to give you more detailed advice concerning the appeals process for your specific case. However, generally someone has 10 days from the day the clerk's order was issued to file a written appeal in a case involving the removal of an Executor. On appeal, a Superior Court Judge will review the order made by the clerk and determine (i) whether the clerk's findings of fact are supported by the evidence, (ii) whether the clerk's conclusions of law are supported by the findings of facts, and (iii) whether the clerk's order or judgment is consistent with the conclusions of law and applicable law. The Judge may use the evidence provided to the clerk at the original hearing, but may ask for additional evidence if he or she feels it is necessary to make a more informed decision.
Guardianship Law Attorney
First, I suggest that you speak with your attorney again so he or she can answer your specific concerns. Second, although I do not practice in NC, most appellate courts only overturn a lower court's ruling if there is an error of law or a finding of fact that is clearly erroneous. Your brother cannot ask for a new trial simply because he doesn't like the decision.
Please note: The above is for general information purposes only. It is not intended to establish and does not establish any attorney-client relationship.