Short Answer

Usually, no. In North Carolina, when spouses held their share of real property as tenants by the entirety with survivorship, the decedent’s interest passes automatically to the surviving spouse. You do not need to open ancillary probate or file a deed of distribution to transfer that share. To reflect the change in title, record a certified death certificate (and, if desired, an affidavit of survivorship) with the county Register of Deeds and update the county tax records.

Understanding the Problem

You are coordinating North Carolina ancillary estate administration and want to know whether you must open an ancillary estate or prepare a deed of distribution to move the decedent’s share of North Carolina real property. Here, the deed states that the married co-owners (including the decedent and spouse) held their couple’s share as tenants by the entirety, with the decedent’s share directed to the spouse at death.

Apply the Law

Under North Carolina law, a tenancy by the entirety between spouses includes a right of survivorship. When one spouse dies, that couple’s entire share vests in the surviving spouse by operation of law. Because title does not pass through the estate, the personal representative has nothing to distribute and no ancillary probate is required just to transfer that share. The practical step is to record proof of death in the county land records and notify the county tax office so records reflect the surviving spouse as owner of that share. Ancillary administration is used when North Carolina assets require a personal representative’s authority (for example, where title does not pass by survivorship or a sale within two years involves heirs or devisees).

Key Requirements

• Clear survivorship title: The deed must show the spouses held their couple’s share as tenants by the entirety (with survivorship).
• Evidence of death in land records: Record a certified death certificate (and optionally an affidavit of survivorship) with the Register of Deeds in the county where the land lies.
• Tax record update: Provide the death certificate to the county tax office so it removes the decedent from the tax roll.
• No deed of distribution: A deed of distribution is used by a personal representative to transfer estate-owned real property; it is not used for survivorship property.
• Ancillary letters only if needed: If title did not pass by survivorship or estate administration is otherwise necessary (e.g., sale by heirs/devisees within two years), ancillary probate may be required.

What the Statutes Say

• N.C. Gen. Stat. § 41-56 (Tenancy by the entirety) – Spouses take as tenants by the entirety with survivorship.
• N.C. Gen. Stat. § 28A-15-2 (Title to real property at death) – Title to non-survivorship real property vests in heirs or devisees.
• N.C. Gen. Stat. § 28A-26-3 (Ancillary letters for nonresident decedents) – How and when ancillary letters issue in North Carolina.
• N.C. Gen. Stat. § 28A-17-12 (Sales by heirs or devisees within two years) – Joinder/notice rules for non-survivorship property sales within two years of death.

Analysis

Apply the Rule to the Facts: Because the deed states the decedent and spouse held their couple’s share as tenants by the entirety with survivorship, that share vested in the spouse at death. It never became an estate asset to distribute, so a deed of distribution and ancillary probate are unnecessary. To perfect the record, the spouse should record a certified death certificate with the Register of Deeds and provide a death certificate to the county tax office to remove the decedent from tax records.

Process & Timing

1. Who files: The surviving spouse (or their attorney). Where: Register of Deeds in the North Carolina county where the property sits, and the county tax office. What: Record a certified death certificate (and, if desired, an affidavit of survivorship). Submit a death certificate to the tax office to update ownership records. When: As soon as practical, especially before any refinance or sale.
2. After recording, the land records will show the surviving spouse as holding that couple’s undivided share; the tax office will remove the decedent from the tax roll. Timing varies by county but updates are typically prompt after receipt.
3. No deed of distribution or ancillary estate file is required solely to transfer the survivorship share. Keep copies of the recorded documents for your records.

Exceptions & Pitfalls

• If the deed did not clearly create tenancy by the entirety with survivorship, the decedent’s share may pass by will or intestacy, which can trigger ancillary probate or recording a foreign will before any transfer.
• Sales by heirs or devisees of non-survivorship property within two years of death can require a personal representative’s joinder or timely notice to creditors; plan ahead before contracting to sell.
• Title practice: many registers and title insurers expect a recorded death certificate (and sometimes a brief survivorship affidavit) to document the chain of title.
• Debt issues are different for survivorship property. A personal representative generally does not administer tenancy-by-the-entirety real property; however, lien and contribution issues may arise where the property secured a debt.

Talk to a Probate Attorney

If you’re dealing with updating title after a spouse’s death on North Carolina real estate, 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.