Short Answer

In North Carolina, property a will does not dispose of falls first to any residuary clause. If the will lacks a residuary clause (or a gift fails and no back-up applies), that property passes by intestacy to the decedent’s heirs under the Intestate Succession Act. For real estate, title vests at death in the heirs or, upon probate, in devisees, but it remains subject to estate debts and administration if needed.

Understanding the Problem

In North Carolina probate, can an executor treat real estate that the will does not mention as intestate property, and if so, who takes it and when? Here, the home was titled solely in the decedent’s name and is not mentioned in the will.

Apply the Law

North Carolina recognizes partial intestacy: if a valid will does not cover all assets, the undisposed property passes under the intestacy statutes. A residuary clause (a “catch‑all”) in the will will scoop up omitted property; if there is no residuary clause, or a gift fails without a substitute taker, the omitted property descends to the heirs under the Intestate Succession Act. For real property, legal title vests at death in the heirs (if intestate) or in the devisees once the will is probated, relating back to death. The Clerk of Superior Court oversees estate administration, and the personal representative may take control or seek authority to sell real estate if needed to pay taxes, claims, or expenses.

Key Requirements

• Check the will for a residuary clause: If present, omitted assets usually pass to the residuary beneficiaries.
• If no residuary, apply intestacy: Identify heirs and their shares under North Carolina’s Intestate Succession Act.
• Real estate title and control: Title vests at death in heirs/devisees; the personal representative can take possession or seek a sale if needed to pay debts (like delinquent property taxes).
• Debts and liens come first: Unpaid taxes and valid claims may require administration and, if necessary, a court‑approved sale.
• Minor heirs: Any share for a minor must be protected (e.g., through a custodian, guardian, or payment into court) before transfer.

What the Statutes Say

• North Carolina Gen. Stat. § 29-8 (Partial intestacy) – If a will does not dispose of all property, the remainder passes by intestacy.
• North Carolina Gen. Stat. § 29-14 (Surviving spouse’s intestate share) – Sets the spouse’s share based on who else survives.
• North Carolina Gen. Stat. § 28A-15-2 (Vesting of real property) – Real property vests in heirs at death or relates back to death upon probate for devisees.
• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs/devisees within two years) – Limits sales, leases, or mortgages by heirs/devisees as to creditors unless conditions are met.

Analysis

Apply the Rule to the Facts: Because the home is not mentioned in the will, first look for a residuary clause. If there is none (or a relevant gift failed), the home likely passes by intestacy to the heirs. Title to the home vested at death in the heirs (subject to debts). Delinquent property taxes are claims against the estate and liens on the land, so opening probate allows the executor to address taxes and, if needed, seek authority to control or sell to pay them.

Process & Timing

1. Who files: The executor. Where: Clerk of Superior Court, Estates Division, in the North Carolina county of the decedent’s domicile (and record as needed where the real property lies). What: Original will, death certificate, and Application for Probate and Letters (AOC‑E‑201) or, if only real estate is involved and no PR is needed, consider Application for Probate Without Qualification (AOC‑E‑199). When: File promptly to address accruing taxes and publish notice to creditors after qualification.
2. Determine whether a residuary clause covers the home; if not, identify intestate heirs and their shares. If taxes or other debts require action, the executor may petition to take possession/control and, if necessary, seek authority to sell or mortgage the property to satisfy valid claims.
3. Resolve taxes and claims; then document distribution. For testate real estate, an assent to devise is typical; for intestate real estate, heirs hold title as tenants in common and any deed to consolidate ownership (e.g., to keep the home) requires all heirs’ participation; if a minor holds a share, obtain appropriate court-approved arrangements before any transfer.

Exceptions & Pitfalls

• A residuary clause usually captures omitted property; if one exists, intestacy may not apply.
• Failed gifts can pass to substitute takers under anti‑lapse rules; confirm before treating property as intestate.
• Real estate may need to be managed or sold to pay debts (like unpaid property taxes) despite heirs holding title.
• Sales by heirs/devisees within two years have creditor‑protection limits; involve the personal representative and publish notice.
• If a minor is an heir, you cannot deed their share without proper safeguards (custodianship, guardianship, or payment into court).

Talk to a Probate Attorney

If you’re dealing with omitted property and need to protect a family home while addressing taxes and heirs’ rights, 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.