North Carolina § 35A-1310 - Where one spouse or both incompetent; special proceeding before clerk.

§ 35A-1310. Where one spouse or both incompetent; special proceeding before clerk.

In all cases where a husband and wife shall be seized of property as an estate by the entireties, and the wife or the husband or both shall be or become mentally incompetent to execute a conveyance of the estate so held, and the interest of said parties shall make it necessary or desirable that such property be mortgaged or sold, it shall be lawful for the mentally competent spouse and/or the guardian of the mentally incompetent spouse, and/or the guardians of both (where both are mentally incompetent) to file a petition with the clerk of the superior court in the county where the lands are located, setting forth all facts relative to the status of the owners, and showing the necessity or desirability of the sale or mortgage of said property, and the clerk, after first finding as a fact that either the husband or wife, or both, are mentally incompetent, shall have power to authorize the interested parties and/or their guardians to execute a mortgage, deed of trust, deed, or other conveyance of such property, provided it shall appear to said clerk's satisfaction that same is necessary or to the best advantage of the parties, and not prejudicial to the interest of the mentally incompetent spouse. All petitions filed under the authority of this section shall be filed in the office of the clerk of the superior court of the county where the real estate or any part of same is situated. History (1935, c. 59, s. 1; 1945, c. 426, s. 5; c. 1084, s. 5; 1987, c. 550, s. 2.) Editor's Note. - This Article is former Article 4 of Chapter 35 , as recodified by Session Laws 1987, c. 550, s. 2. Legal Periodicals. - For analysis of Article, see 13 N.C.L. Rev. 376 (1935). For note on tenancy by the entirety in real property during marriage, see 47 N.C.L. Rev. 963 (1969).