Short Answer

In North Carolina, when a co-owner dies without a will and the deed has no survivorship rights, the decedent’s share passes by intestacy. If there are two children and a surviving spouse, the spouse takes one-third of the decedent’s real property interest and the children split the remaining two-thirds. If your mother and her spouse each owned 50%, that usually means: spouse ≈ 2/3 of the whole, each child ≈ 1/6 of the net sale proceeds after liens, costs, and taxes are paid.

Understanding the Problem

You want to know how a North Carolina court will divide sale proceeds when your mother died without a will, co-owned a home with her spouse, and the deed does not include survivorship rights. You and your sister are looking at a court-ordered sale (partition) and need to understand what portion of the net proceeds each of you receives.

Apply the Law

When real property is held without survivorship (tenants in common), the decedent’s undivided share does not pass to the co-owner at death; it vests in the heirs immediately and is available to satisfy estate obligations if the court brings it in. Under North Carolina intestacy, a surviving spouse shares the decedent’s real property with the decedent’s children. Sale proceeds from a partition are distributed after paying mortgages, taxes, and court-approved costs, according to each owner’s percentage interest.

Key Requirements

• Confirm the title form: No survivorship on the deed means tenancy in common; the decedent’s share passes by intestacy at death.
• Identify the decedent’s undivided interest: Often 50%, unless the deed states a different fraction.
• Apply intestate shares to the decedent’s interest: With two or more children, the surviving spouse takes one-third of the decedent’s real property; the children share the remaining two-thirds equally.
• Account for liens and costs: Mortgage payoffs, property taxes, commissions, and court costs come off the top before owners split net proceeds.
• Partition procedure controls the sale: Filed with the Clerk of Superior Court; special “heirs property” rules may add appraisal and buyout steps before a sale.

What the Statutes Say

• N.C. Gen. Stat. § 29-14 (Surviving spouse’s share in intestacy) – Sets the spouse’s fraction of real property when the decedent leaves children.
• N.C. Gen. Stat. § 28A-15-2(b) (Title to real property at death) – Non-survivorship real property vests in heirs at death.
• N.C. Gen. Stat. Ch. 46A (Partition) – Governs partition actions, including special procedures for heirs property (appraisal, buyout, then sale).
• N.C. Gen. Stat. § 29-30 (Spousal life estate election) – Allows a surviving spouse to elect a life estate in the residence, which can affect timing of sale.

Analysis

Apply the Rule to the Facts: Your mother died intestate and co-owned the home with her spouse; the deed has no survivorship. Her undivided interest (commonly 50%) passed to heirs at death. Because there are two children and a surviving spouse, the spouse takes one-third of your mother’s interest and you and your sister split the remaining two-thirds. If the co-ownership was equal, net sale proceeds (after paying the mortgage and sale costs) distribute roughly: spouse ≈ 2/3 overall; each child ≈ 1/6. Life insurance payable to the children and the small bank account are separate and do not change these real estate percentages.

Process & Timing

1. Who files: Any tenant in common (you or your sister). Where: Clerk of Superior Court in the county where the property is located. What: Verified petition for partition under Chapter 46A (include deed, death certificate, owner list, and known liens). When: No fixed deadline; file after death once title has vested in the heirs.
2. After filing, the Clerk serves all co-owners and necessary parties (including lienholders). The court determines ownership shares. If “heirs property” applies, the court orders an appraisal and provides a buyout window before a sale. If no buyout, the court appoints a commissioner to conduct a sale. Timeframes vary by county and docket load.
3. At closing, the commissioner pays liens, property taxes, court costs, and sale expenses. The Clerk confirms the sale and the commissioner distributes the net proceeds to each owner based on their adjudicated percentages.

Exceptions & Pitfalls

• If the deed had survivorship rights (it does not here), the entire property would have passed to the surviving spouse and no intestate split would occur.
• A surviving spouse can elect a life estate in the residence under North Carolina law, which can delay or condition any sale unless the life tenant joins or the court orders otherwise.
• Expect liens and mortgage payoffs to come off the top. Keep records of taxes, insurance, and necessary repairs; courts can account for contributions when dividing net proceeds.
• If the incapacitated spouse has a guardian, ensure proper service and representation in the partition proceeding to avoid delays.

Talk to a Partition Action Attorney

If you’re dealing with a co-owned home after a parent’s death and need to divide or sell it, our firm has 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.