Short Answer

In North Carolina, how the deed titled the property controls what happens at the first spouse’s death. If spouses owned the home as tenants by the entirety or as joint tenants with right of survivorship, the survivor becomes the sole owner outside probate. If the deed did not include survivorship (for example, tenants in common), the deceased spouse’s share passes by will or intestacy and you may need probate steps to sell, including recording authenticated probate papers or opening an ancillary estate if the land is in North Carolina.

Understanding the Problem

In North Carolina, can you inherit a jointly owned house after one spouse dies, and what filing do you need to sell it when the closing lawyer asks for ancillary probate? Here, the property is under contract and closing counsel wants an ancillary filing to confirm title before closing.

Apply the Law

North Carolina looks first to the deed. Spouses typically hold as “tenants by the entirety,” which carries automatic survivorship. Joint tenancy can also have survivorship, but only if the deed says so. If there’s no survivorship (for example, tenants in common or joint tenancy without survivorship language), the deceased spouse’s share passes under the will or by intestacy and title evidence from probate is needed. For North Carolina real estate owned by a nonresident who died elsewhere, you clear title by recording an authenticated copy of the foreign will and probate order in the North Carolina county where the land sits, or by opening ancillary administration there. Sales within two years of death trigger extra creditor‑protection rules that often require a qualified personal representative to publish notice to creditors and join the deed.

Key Requirements

• Confirm deed ownership type: Read the recorded deed to see if it states “tenants by the entirety” or “with right of survivorship.” Without clear survivorship wording, North Carolina treats co‑owners as tenants in common.
• Survivorship passes outside probate: Entireties and express survivorship deeds vest full title in the survivor at death; the will does not control that asset.
• No survivorship means probate controls: If tenants in common (or joint tenants without survivorship), the deceased spouse’s share vests in heirs/devisees upon death and is conveyed under the will or intestacy.
• For NC land and an out‑of‑state probate: Record a certified/exemplified copy of the will and domiciliary probate order with the Clerk of Superior Court in the NC county where the land is located, or open an ancillary estate there.
• Two‑year sales rule: Within two years of death, a sale by heirs/devisees is void as to creditors until notice to creditors is published; after notice but before final account, the personal representative must join the deed.

What the Statutes Say

• North Carolina Gen. Stat. § 39-13.6 (Tenancy by the entirety) – Deeds to married persons are entireties property unless a contrary intent appears.
• North Carolina Gen. Stat. § 41-2 (Joint tenancy survivorship) – No survivorship in joint tenancy unless the instrument expressly provides it.
• North Carolina Gen. Stat. § 28A-2A-17 (Foreign wills and NC real estate) – Record an authenticated copy of the foreign will and probate to pass North Carolina land.
• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs/devisees within two years) – Sets creditor‑protection rules and when a PR must join the deed.

Analysis

Apply the Rule to the Facts: Because the property was “jointly owned,” start by pulling the deed. If it shows tenancy by the entirety or joint tenancy “with right of survivorship,” the survivor owned 100% at the first death, so the will did not transfer that interest. If the deed lacks survivorship, the deceased spouse’s share passed under the will, and closing counsel can clear title to North Carolina land by recording authenticated probate papers or (if required) opening ancillary administration; within two years of death, a qualified personal representative typically must publish notice to creditors and join the deed.

Process & Timing

1. Who files: The domiciliary personal representative or a devisee/heir. Where: Clerk of Superior Court in the North Carolina county where the property is located. What: File a certified/exemplified copy of the foreign will and probate order; if there is no need to qualify a PR in NC, use probate without qualification for real estate only (AOC‑E‑199) when appropriate. When: Before closing; if within two years of death, expect the PR to qualify and publish notice to creditors before joining the deed.
2. Clerk reviews proper execution and authenticity of the foreign probate; if needed, the Clerk may take additional proof. Counties vary, but recording authenticated documents and obtaining a clerk order commonly takes 2–6 weeks.
3. Record the clerk’s filings and any required orders; proceed to closing with a deed from the surviving owner (if survivorship) or from the PR plus heirs/devisees (if no survivorship and within creditor period).

Exceptions & Pitfalls

• Assuming survivorship exists without checking the deed. In North Carolina, survivorship must appear in the instrument; otherwise co‑owners are typically tenants in common.
• Skipping authenticated copies. Some clerks require exemplified (triple‑sealed) copies of the will and probate order; uncertified copies can delay recording.
• Ignoring the two‑year creditor window. If no notice to creditors is published, a buyer’s title can be vulnerable; title companies often require PR joinder during this period.
• Overlooking county‑by‑county practice. Recording requirements and processing times can vary; build in lead time before closing.
• Misclassifying entireties property. Entireties property passes to the surviving spouse at death and is generally not administered in the decedent’s estate.

Talk to a Probate Attorney

If you’re dealing with a jointly owned property after a spouse’s death and a closing lawyer wants ancillary probate, 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.