Short Answer

In North Carolina, you challenge a fraudulent or unauthorized deed affecting estate real estate by filing a civil action in Superior Court to quiet title and seek a court order canceling the deed, while using probate procedures to preserve the property. If someone who lacked authority signed the deed (for example, an heir or anyone other than a duly empowered personal representative), the conveyance may be void as to the estate and creditors, especially within two years of death if the personal representative did not join the sale. File suit, record a lis pendens, and seek an injunction to stop further transfers while the case proceeds.

Understanding the Problem

North Carolina probate: can you have the court set aside a deed recorded by the decedent’s mother that transferred the home to an investor without court approval while a will caveat is pending and you live in the home? The issue is whether the signer had legal authority to convey estate real estate, and which court you use to undo the deed.

Apply the Law

Under North Carolina law, title to a decedent’s real estate passes to heirs or devisees at death, but the personal representative (PR) can be authorized to take possession and, if needed, sell to pay claims. A deed signed by someone who has no title or no authority to convey does not pass good title. Within two years of death, a sale by heirs or devisees can be ineffective as to the estate and creditors unless the PR properly joins in the deed. Setting aside a deed or resolving competing title claims is done in Superior Court; at the same time, the Clerk of Superior Court can enter orders to preserve estate assets during a will caveat and the PR may bring actions to recover estate property.

Key Requirements

• Standing and preservation: Ensure a fiduciary is in place (PR, limited fiduciary, or collector during a caveat) so the estate can act, and request preservation orders to prevent transfers.
• Show a defect in authority or fraud: Prove the grantor lacked authority (not a devisee, not an heir with power, or not a duly empowered PR) or that the deed was procured by fraud or similar misconduct.
• Use the correct forum and parties: File in Superior Court for quiet title/declaratory relief; join the grantor, grantee, and any subsequent transferees or lienholders.
• Protect the title during suit: Record a lis pendens when you file to alert the world and restrict further transfers while the case is pending.
• Timing threshold: Within two years of death, heir/devisor sales are limited; fraud claims generally have a three‑year period from discovery; procedures and timing can vary by issue.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs or devisees) – Within two years of death, heir/devisee sales can be void as to the estate and creditors unless the PR joins in the conveyance.
• North Carolina Gen. Stat. § 28A-15-12 (Actions to recover property of decedent) – The PR may sue to recover estate property in Superior Court; interested persons may initiate an estate proceeding to examine holders of property.
• North Carolina Gen. Stat. § 31-36 (Preservation of assets during a caveat) – During a will caveat, the court restricts distribution and authorizes steps to preserve estate assets.
• North Carolina Gen. Stat. § 1-116 (Lis pendens) – Record notice of pending litigation affecting title to bind subsequent purchasers and encumbrancers.

Analysis

Apply the Rule to the Facts: Here, the decedent’s mother signed a non‑warranty deed to an investor without probate approval. If she was not a devisee under the will and not a duly authorized PR, she likely lacked authority to convey. Because a caveat is pending, the court should issue preservation orders, and the PR (or limited fiduciary) can file a Superior Court action to quiet title and cancel the deed. If the deed was recorded within two years of death and the PR did not join, that sale can be void as to the estate and creditors.

Process & Timing

1. Who files: The personal representative (or a court‑appointed limited fiduciary/collector during the caveat). Where: Superior Court in the county where the property is located; preservation requests and PR/collector appointments go to the Clerk of Superior Court in the estate file. What: Complaint for quiet title/declaratory relief and cancellation of deed; Notice of Lis Pendens; motion for temporary restraining order/preliminary injunction; motions/orders in the estate for preservation. When: File promptly after discovery; fraud claims are generally subject to a three‑year clock from discovery, and heir/devisor sales within two years of death face statutory limits.
2. Upon filing, record the lis pendens in the property county’s land records the same day; seek a temporary restraining order to stop further transfer/encumbrance and to maintain possession while the case is heard. Timeframes for injunction hearings are typically short (often within weeks).
3. Litigate title: join the mother, the investor, and any lienholders; obtain a court order canceling the deed if unauthorized or fraudulent. After judgment, record the order so the register of deeds updates the chain of title.

Exceptions & Pitfalls

• Subsequent transferees and lienholders: you must join all parties with recorded interests; missing a party can delay or limit relief.
• Failure to record lis pendens: without it, a later buyer may complicate your ability to unwind the transfer.
• Jurisdiction traps: the Clerk of Superior Court handles probate administration and preservation orders, but deed cancellation and quiet title relief belong in Superior Court.
• Good-faith purchaser issues: while unauthorized heir/devisee sales can be void as to the estate and creditors, buyers may assert defenses; precise pleading and timely action matter.
• Possession and eviction: to remove occupants or protect possession, ensure the PR has authority over the real property through the estate proceeding before seeking ejectment.

Talk to a Probate Attorney

If you’re facing a deed recorded by someone without authority while an estate and caveat are pending, 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.