Short Answer

In North Carolina, the personal representative of the parent’s estate typically must act to remove an occupant from real property wrongfully transferred under a power of attorney. First, restore or confirm the estate’s title by challenging the agent’s deed and transactions; then seek an order granting the estate possession and authority to eject the occupant. If the occupant is a tenant, use summary ejectment; otherwise, the personal representative may pursue ejectment through the estate proceeding or a related civil action. Remedies can also recover misappropriated personal property.

Understanding the Problem

In North Carolina probate, the question is: can you remove the former agent’s child who is occupying your parent’s real estate when that property was deeded away under a questionable power of attorney? Here, the parent showed cognitive decline, the agent deeded the home to themself and distributed personal items, the agent died, and their child now occupies the property under the agent’s trust. You want the home back under the parent’s estate and the occupant removed.

Apply the Law

North Carolina law gives a personal representative (PR) tools to recover real and personal property and to remove occupants once the estate’s right to possession is established. An agent under a power of attorney owes fiduciary duties; courts can order accountings, limit or terminate authority, and remedy breaches, including setting aside wrongful transfers and imposing constructive trusts. Title disputes and money-damages claims are handled in superior court, while the Clerk of Superior Court oversees estate proceedings like granting possession of real property to the PR and authorizing ejectment of non-tenants.

Key Requirements

• Standing: A personal representative acts for the decedent’s estate; heirs typically proceed through the PR.
• Title first, then removal: Challenge and unwind any improper POA deed or transfer so the estate’s right to possession is clear before ejectment.
• Correct forum: Use superior court to set aside deeds, impose constructive trusts, or seek damages; use the Clerk’s estate proceeding to obtain possession and eject non‑tenants once title is established.
• Tenant vs. non‑tenant: If the occupant is a tenant, removal must proceed by summary ejectment; non‑tenants can be removed through an estate proceeding order.
• Personal property recovery: The PR may bring an action to recover estate property and can examine persons holding estate assets.

What the Statutes Say

• N.C. Gen. Stat. § 32C-1-116 (Judicial relief re: POA) – Who can seek relief, where to file, and clerk vs. court roles.
• N.C. Gen. Stat. § 32C-1-117 (Agent’s liability) – Breach of fiduciary duty by an agent and available remedies.
• N.C. Gen. Stat. § 28A-13-3 (Powers of personal representative) – PR’s authority to obtain possession of real property and eject occupants; process through the Clerk.
• N.C. Gen. Stat. § 28A-15-12 (Actions to recover property of decedent) – PR actions and estate proceedings to recover estate assets.

Analysis

Apply the Rule to the Facts: A PR should be appointed for the parent’s estate to have standing. Because the agent deeded the home to themself and diverted personal items while the parent showed cognitive decline, the PR can sue in superior court to set aside the deed and transfers, seek a constructive trust, and compel an accounting. Once the estate’s title or right to possession is established, the PR can petition the Clerk for possession and an order authorizing ejectment of the agent’s child (unless the child is a tenant, in which case use summary ejectment). The PR can also pursue recovery of jewelry and furniture.

Process & Timing

1. Who files: Personal representative of the parent’s estate. Where: Open the estate with the Clerk of Superior Court in the county where the parent lived; if you need PR appointment, use AOC-E-201 (Application for Probate and Letters) or AOC-E-202 (Letters of Administration). What: File a civil action in Superior Court to set aside the POA deed, impose a constructive trust, and seek an accounting; record a lis pendens. After title/right to possession is confirmed, file an estate proceeding petition with the Clerk for possession and ejectment of a non-tenant occupant. When: File promptly to protect title and prevent further transfers.
2. After service and any preliminary relief (e.g., temporary restraining order if warranted), the superior court addresses title and POA issues. In parallel or afterward, the Clerk can hear the estate petition for possession and authorize ejectment of a non‑tenant. Timelines vary by county and court calendar.
3. Final step and outcome: With a court order restoring title and a Clerk’s order granting possession, the PR proceeds with ejectment (or, if the occupant is a tenant, files summary ejectment). The property is then administered by the estate.

Exceptions & Pitfalls

• If the occupant is a tenant, the PR must use summary ejectment; do not rely on a non‑tenant ejectment order.
• If the POA expressly authorized self‑dealing (e.g., transfers to the agent) and the parent had capacity, setting aside the deed may be harder; capacity and undue influence evidence matter.
• Join the right parties (e.g., the agent’s trust, trustee, and occupant) and record a lis pendens to prevent further transfers.
• Use the correct forum: monetary damages and deed challenges go to superior court; possession/ejectment orders for non‑tenants can be obtained via the Clerk’s estate proceeding.
• For personal property, consider an estate proceeding to examine holders and a civil action if turnover is disputed.

Talk to a Probate Attorney

If you’re dealing with title disputes and a holdover occupant after questionable POA transfers, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

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.