Short Answer

In North Carolina, you generally need legal authority from the Clerk of Superior Court before you can control estate property. The usual path is to qualify as the estate’s administrator (or, in urgent situations, as a temporary collector), then ask the clerk for an order allowing you to take possession, custody, and control of the real property. With that order, you can secure the home, change locks, and insure it to prevent waste. If a tenant is in the home, you must use the landlord-tenant court process to remove them.

Understanding the Problem

In North Carolina probate, can an heir secure and access a deceased person’s house before probate is finished? Here, the decedent died without a will, and there are two heirs to a house with acreage. One heir wants to protect the property while the estate is being opened and while claims (including a possible Medicaid claim) are sorted out.

Apply the Law

Under North Carolina law, title to a decedent’s real estate vests in the heirs at death if there is no will. Even so, no single heir has unilateral authority to control or exclude others before probate. The Clerk can appoint an administrator and, upon request, authorize that fiduciary to take possession, custody, and control of the real property when doing so benefits the estate’s administration. The Clerk of Superior Court is the forum for these estate and special proceedings. Creditors must be given notice, and most claims must be presented within at least 90 days after the first publication of notice to creditors.

Key Requirements

• Get legal authority: Qualify as administrator (letters of administration) or, if time-sensitive, seek appointment as a temporary collector to act while full letters are pending.
• Possession order for real property: Ask the Clerk to authorize the administrator (or collector) to take possession, custody, and control of the real estate when it is in the estate’s best interest (for example, to secure, insure, or prevent waste).
• Duty to preserve assets: Once authorized, promptly secure the home (locks, insurance, utilities as needed) and maintain records; the fiduciary must preserve estate assets.
• Creditor process: Publish and mail notices to creditors; most claims are barred unless filed within the statutory window. Medicaid estate recovery is a potential claim that must be addressed.
• Sale/partition limits before final accounting: Within the first two years, most heir sales are ineffective as to creditors unless the personal representative joins; do not transfer or partition in ways that impair creditor payment.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-15-2 (When title vests) – Real property vests in heirs at death; title under a will relates back upon probate.
• North Carolina Gen. Stat. § 28A-13-3 (Powers of personal representative) – Clerk may authorize possession, custody, and control of real property; outlines eviction authority and limits.
• North Carolina Gen. Stat. § 28A-19-3 (Presentation of claims) – Creditor claim timing; most claims must be presented within at least 90 days of notice publication.
• North Carolina Gen. Stat. § 108A-70.5 (Medicaid Estate Recovery) – State may recover certain Medicaid benefits from the estate; notice and claim handling apply.

Analysis

Apply the Rule to the Facts: Because the decedent died intestate with a house and two heirs, title vested in both heirs at death, but neither has solo control. To secure the property, one heir should apply to be administrator and then petition the Clerk to authorize possession, custody, and control of the house so they can change locks and insure it. Given a potential Medicaid claim, the administrator should promptly publish and mail creditor notices, including notice to the State, before making any sale or partition decisions.

Process & Timing

1. Who files: An heir. Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: Apply for Letters of Administration (AOC-E-202); if urgent, request appointment as a temporary collector and then petition for an order authorizing possession, custody, and control of the real property under G.S. 28A-13-3(c). When: File as soon as possible to prevent waste; publish notice to creditors promptly after qualification, as the claims window runs at least 90 days from first publication.
2. Hearing and order: The Clerk schedules a hearing on possession/custody/control. If granted, the order lets the administrator secure the house (locks, insurance, access) and, if needed, seek ejectment of non-tenant occupants through the estate proceeding. Bona fide tenants must be removed through a separate summary ejectment case in District Court.
3. Claims and next decisions: Mail notice to known creditors (including NC DHHS for Medicaid estate recovery) and publish general notice. After the claim period, determine whether a sale is needed to pay allowed claims; if so, pursue the appropriate real-estate proceeding. If co-owners cannot agree on use or disposition after claims are handled, consider a partition action.

Exceptions & Pitfalls

• Do not change locks or exclude others without letters and, for real property, an order authorizing possession/custody/control; acting without authority risks disputes and liability.
• Tenants require summary ejectment under landlord-tenant law; do not use an estate order to remove a bona fide tenant.
• Within two years of death, heir-conveyed deeds can be ineffective as to creditors unless the personal representative joins; coordinate any sale with the estate.
• Medicaid estate recovery: promptly mail notice to NC DHHS and resolve any claim before distributing or partitioning; the State can pursue recovery if unpaid.
• Bond and filings: administrators of intestate estates often must post bond and file an inventory on time; missing these can delay orders and access.

Talk to a Probate Attorney

If you’re dealing with securing a loved one’s North Carolina home during probate and coordinating creditor issues, our firm has experienced attorneys who can help you understand your options and timelines. Call us today to get started.

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.