Short Answer

Yes. In North Carolina, an executor may waive a commission. But sale proceeds are not the executor’s money to take. Proceeds must be deposited into the estate (or paid out as the court orders) and distributed under the will and North Carolina law. Any commission—whether taken or waived—does not change the rule that the executor cannot self‑deal or bypass required accountings and approvals.

Understanding the Problem

You want to know if, in North Carolina, an executor (here, the spouse) can decline a fee while also taking a lump sum from the sale of the decedent’s residence. The will left the spouse a life estate in the home and set who gets sale proceeds. The spouse, serving as executor, sold the home and kept proceeds, and will not provide a signed prenuptial agreement.

Apply the Law

North Carolina allows executor commissions up to a statutory cap, subject to the Clerk of Superior Court’s approval. An executor can waive a commission. However, sale proceeds must be handled as estate funds and distributed according to the will and applicable orders. If a will gives the executor authority to sell and distribute cash, the entire sale price may be treated as estate receipts for commission purposes; if the sale is only to pay debts, only the portion applied to debts is commissionable. The executor must keep funds in an estate account, file required inventories and accounts, and act loyally and impartially toward all beneficiaries. Where a life tenant and remaindermen agree to sell, proceeds are typically divided using actuarial values unless the will directs otherwise. A prenuptial agreement can affect spousal rights, so it is a relevant record that can be compelled in an estate proceeding.

Key Requirements

• Commission rules: Any commission is capped by statute, set by the clerk, and often allowed at final accounting; the executor may waive it.
• No self-dealing: Sale proceeds belong to the estate or designated devisees—not the executor personally.
• Authority to sell: A sale must be authorized by the will (power of sale), by statute, or by court order; process differs if the sale is to pay debts versus to convert to cash for distribution.
• Proper handling of proceeds: Deposit into an estate account; pay claims and expenses, then distribute under the will or applicable order.
• Accountings: File a timely inventory and annual/final accounts; interested parties can compel a full accounting.
• Life estate coordination: If a life tenant joins a sale, allocate sale proceeds between the life tenant and remaindermen (often by actuarial value) unless the will says otherwise.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-23-3 (Executor commissions) – Clerk sets reasonable commissions up to 5% of commissionable receipts/disbursements; may be waived.
• North Carolina Gen. Stat. § 28A-17-10 (Sale of real property when devised to the personal representative) – Allows sales upon terms for the advantage of the estate, using judicial sale procedures when required.
• North Carolina Gen. Stat. § 28A-21-4 (Compelling an accounting) – Clerk or an interested party may order a full, satisfactory account; noncompliance can result in removal or contempt.
• North Carolina Gen. Stat. § 8-46 (Mortality tables) – Used to value life estates when allocating proceeds after a sale.

Analysis

Apply the Rule to the Facts: Even if the spouse-executor waives a commission, that does not authorize keeping lump-sum sale proceeds. If the will empowered a sale and directed distribution of cash, the entire sale price is handled through the estate and paid out per the will; if the sale was only to raise cash to pay debts, only the portion used for debts flows through the estate, with any excess going to the devisees. Because the will gave the spouse a life estate, if the home was sold, proceeds generally should be split between the spouse (life tenant) and the remaindermen by actuarial value unless the will’s instructions say otherwise. The prenuptial agreement is relevant to the spouse’s rights and can be sought in an estate proceeding; the executor must account and provide records.

Process & Timing

1. Who files: An interested heir or beneficiary. Where: Clerk of Superior Court (estate file) in the North Carolina county of administration. What: Petition/motion to compel accounting and production of records (including the prenuptial agreement), and to review commissions and distributions. When: The executor must file an inventory within roughly three months of qualifying and then annual/final accounts; if information is withheld, seek an order compelling a full accounting.
2. After the clerk issues an order to account, the executor typically must file a full, satisfactory account and supporting documents within the stated period; if the prenup affects spousal rights, request its production in the same proceeding.
3. The clerk audits the account, rules on commissions, and may order proper distribution or surcharge the executor for any improper receipt of proceeds; the estate then moves toward final accounting and closing.

Exceptions & Pitfalls

• If the will sets a different compensation method, that controls; otherwise, the clerk decides a reasonable commission up to the cap.
• “Double dipping” is not permitted—no separate sale fee plus a full commission on the same proceeds.
• Without a power of sale in the will, selling real property generally requires a special proceeding; title issues and upset-bid rules may apply.
• When a life tenant joins a sale, get a written agreement or order on how proceeds will be split by actuarial values unless the will says otherwise.
• Distributions before paying claims or without court-reviewed accountings risk surcharge and removal.

Talk to a Probate Attorney

If you’re dealing with an executor who sold estate real estate, waived a commission, and kept sale proceeds, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-555-0199.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.