How do I challenge an executor’s authority to collect rent from our family property? – North Carolina

Short Answer

In North Carolina, heirs or devisees generally take title to a deceased owner’s real estate at death, and rent for periods after death typically belongs to those heirs or devisees—not automatically to the executor. An executor can still have authority to take control of real property and its rent if the executor properly takes “possession, custody, and control” as part of estate administration, or if the will or a clerk’s order gives the executor specific power over the property. A practical way to challenge the executor’s claim is to require proof of that authority (estate file, letters, will provisions, and any clerk order) and then raise the lack of authority as a defense in the rent lawsuit and/or in a contested estate proceeding before the Clerk of Superior Court.

Understanding the Problem

In North Carolina probate, the key decision point is whether an executor has legal authority, as executor, to demand and collect rent from a piece of family real estate that was titled only in a deceased parent’s name. When a tenant pays rent into one sibling’s bank account, and an executor later claims those payments should have gone to the estate, the dispute often turns on whether the rent legally belongs to the heirs/devisees or instead must be collected by the executor to administer the estate. The same question can come up after a civil summons is served demanding past rent proceeds from family members rather than from the tenant.

Apply the Law

North Carolina law generally treats real estate differently from personal property in estate administration. Title to a decedent’s real property typically passes at death to heirs (if no will) or devisees (if a will), subject to certain estate administration powers and claims. Even when heirs/devisees hold title, a personal representative (executor/administrator) may be empowered to take possession, custody, and control of the real property if the personal representative determines it is in the best interest of administering the estate, and that authority is often documented through the estate process and, in some situations, a clerk order. Rent also has special rules: rent “growing due” across the date of death can be apportioned, while rent attributable to periods after death is commonly treated as belonging to the heirs/devisees of the leased property unless a valid estate-administration basis shifts control to the personal representative.

Key Requirements

Who owns the right to post-death rent: Rent for rental periods after the owner’s death is usually tied to whoever holds the real-property interest (heirs/devisees), unless the executor has a recognized estate-administration basis to collect it.
Executor’s documented authority over the real estate: The executor generally needs a clear source of power (will language, a clerk-authorized real estate proceeding, or a statutory administration power properly invoked) showing the executor is taking possession/custody/control for estate purposes.
Proper forum and procedure to dispute authority: Challenges often happen in two places: (1) the civil case where rent is demanded (by asserting defenses and requiring proof), and/or (2) estate proceedings before the Clerk of Superior Court (by filing or responding in a contested estate proceeding over control of real property or estate property issues).

What the Statutes Say

N.C. Gen. Stat. § 42-5 (Rent apportioned where lease terminated by death) – Allows a lessor or personal representative to recover a proportional share of rent for a rent period that straddles the date of death, in situations where the lease ends by death.

Analysis

Apply the Rule to the Facts: The property was titled solely in the deceased parent’s name, and siblings now claim a shared interest, which points toward heirs/devisees holding the real-property interest after death. The executor’s claim to rental income despite not being on the deed is not automatically wrong or right; it depends on whether the executor has taken possession/custody/control of the property for estate administration or has will-based or clerk-approved authority to control rents. Because the tenant paid multiple rent payments into one sibling’s account, the rent lawsuit can turn on whether those payments were legally owed to the estate (because the executor had authority) or owed to the heirs/devisees (because post-death rent belongs to them absent a valid estate-control basis).

Process & Timing

Who files: The party challenging the executor’s rent demand (often an heir/devisee or the sibling sued for rent) responds in the civil case and may also file in the estate. Where: The civil response is filed in the court listed on the summons; estate filings go to the Clerk of Superior Court in the county where the estate is administered (and sometimes where the land is located for real-property-related estate relief). What: A written Answer (and any motions) in the civil case; and, if appropriate, a request to the Clerk to determine authority over the real property (commonly handled as a contested estate proceeding). When: The summons response deadline is short and depends on how service occurred, so the date on the summons and service method must be checked immediately.
Gather proof of authority: obtain the estate file documents (letters testamentary/letters of administration, the will if any, and any petitions/orders about taking possession, custody, and control of real property), plus the lease, rent ledger, and bank records showing what was paid and when.
Ask the deciding forum to address the authority question: in civil court, raise the lack of executor authority as a defense and require the executor to prove standing/entitlement to the rent; in the estate, ask the Clerk of Superior Court to clarify whether the personal representative properly took control of the property for estate administration and what should happen with rent going forward.

Exceptions & Pitfalls

Will-based control can change the answer: If the will gives the personal representative powers over the real estate (including sale/management) or conveys title-related authority for estate purposes, the executor’s rent demand may have stronger footing.
Executor control can be valid even when heirs hold title: In North Carolina, heirs/devisees may hold title while the personal representative still has statutory power to take possession/custody/control when it is in the estate’s best interest. Failing to check for a filed petition or clerk order about real property control is a common mistake.
Mixing funds and unclear accounting: Rent deposited into a personal account without clear records can trigger claims for accounting, reimbursement, or misapplication of funds. Clean documentation of who collected what rent, for what months, and why the funds were held is critical.
Rent timing issues: Rent that covers a period before and after death may be treated differently from rent strictly for periods after death. The dates of the rental period and payment due dates matter.
Wrong forum: Some issues belong in the pending civil rent case (defenses, standing, money claims), while others may need to be addressed in estate proceedings before the Clerk of Superior Court (authority to control estate-related property and estate administration disputes).

Conclusion

In North Carolina, an executor does not automatically get the right to collect all rent from a deceased parent’s real property simply because an estate is open. Post-death rent usually follows the heirs’ or devisees’ real-property interest unless the executor has a valid, documented basis to take possession, custody, and control of the property for estate administration (or specific power under the will or a clerk order). The next step is to file a timely written response to the civil summons and require proof of the executor’s authority from the estate record.

Talk to a Probate Attorney

If there is a dispute about whether an executor can demand and collect rent from family real estate, an attorney can review the estate file, the deed, the lease, and the rent payment history and help map out the fastest way to challenge (or confirm) the executor’s authority in the proper forum. 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.