Dec302025
Probate Q&A Series

What steps do I take to secure the property and manage occupants while the estate is being handled? – North Carolina

Short Answer

In North Carolina, the right to control a decedent’s real property during probate depends on who holds title after death and whether a court-appointed personal representative has authority to take “possession, custody, and control” of the property. If someone is living in the home, the correct process also depends on whether that person is a lawful tenant under a lease or is occupying without a lease. The safest first steps usually include confirming who has legal authority, documenting who is in the property, and using the Clerk of Superior Court or (for tenants) the summary ejectment process in small claims court when removal is necessary.

Understanding the Problem

In North Carolina probate, a common decision point is: who has the legal authority to secure a decedent’s home and deal with people living there while the estate is being administered. This typically comes up when a third party contacts a family member about the estate and asks who is currently living at the property, whether anyone has the right to stay there, and what the next steps are to protect the home and the decedent’s belongings. The answer turns on whether a personal representative has been appointed and, if so, whether that personal representative has (or can obtain) authority to take possession, custody, and control of the real property.

Apply the Law

North Carolina separates (1) who owns real estate after death from (2) who may manage and control it during administration. In many estates, title to real property passes to heirs or devisees at death, but the personal representative may take possession, custody, and control of the property when that control is in the best interest of the estate’s administration. When occupants are involved, the forum and procedure depend on whether the occupant is a bona fide tenant/lessee (handled through landlord-tenant court procedures) or a non-tenant occupant (which may be handled through an estate proceeding before the Clerk of Superior Court if the personal representative has the right to possession).

Key Requirements

  • Confirmed authority: A court-appointed personal representative (executor/administrator) generally acts for the estate, but may need a specific order to take “possession, custody, and control” of real property unless an exception applies.
  • Best-interest basis for control: When an order is required, the personal representative must be prepared to show why taking control of the real property helps the administration (for example, protecting the property, handling income-producing property, or preparing for a sale to pay claims).
  • Correct occupant procedure: If the occupant is a bona fide tenant under a lease, removal generally must follow North Carolina’s landlord-tenant summary ejectment process rather than an estate proceeding; if not a tenant, the Clerk of Superior Court may have tools to enforce the personal representative’s right to possession in an estate proceeding.

What the Statutes Say

Analysis

Apply the Rule to the Facts: A representative contacted a family member about a decedent’s estate and wants to confirm who is living at the property and who has authority. Under North Carolina practice, the first legal question is whether a personal representative has been appointed and, if so, whether that personal representative already has the right to take possession, custody, and control of the real property or must petition the Clerk of Superior Court for an order. The second question is whether any current occupant is a bona fide tenant under a lease (which usually requires landlord-tenant court procedures) or is occupying without a lease (which may be addressed through estate proceedings once the personal representative’s right to possession is established).

Process & Timing

  1. Who files: The court-appointed personal representative (or the person seeking to be appointed). Where: The Clerk of Superior Court (Estates) in the county where the estate is administered; if landlord-tenant removal is needed for a tenant, the case is typically filed as a summary ejectment in small claims court in the county where the property is located. What: Open the estate (if not already opened) and obtain Letters (Letters Testamentary or Letters of Administration); if needed, file a petition asking the Clerk for authority for possession, custody, and control of the real property and any related relief. When: As soon as there is a real risk of loss (vacant home, unknown occupants, unpaid utilities, or personal property at risk), because delay can increase damage and liability.
  2. Secure and document the property: Once lawful authority exists, take practical preservation steps consistent with fiduciary duties—confirm insurance coverage, secure entry points, inventory visible personal property, and document who is in possession and why. If a third party is holding estate property, an estate proceeding before the Clerk may be used to require delivery of property to the personal representative, and the Clerk can set a prompt hearing schedule in some situations.
  3. Address occupants using the correct track: If the occupant is a bona fide tenant/lessee, follow Chapter 42 procedures (notice and summary ejectment) rather than asking the Clerk to eject through an estate order. If the occupant is not a tenant and the personal representative has (or obtains) the right to possession, the personal representative can ask the Clerk for orders to enforce that right, which may include orders directed at occupants depending on the circumstances.

Exceptions & Pitfalls

  • Assuming the estate automatically “controls” the house: In many North Carolina estates, heirs or devisees hold title after death, and the personal representative may need to show that taking possession, custody, and control is in the estate’s best interest before acting like a property manager.
  • Using the wrong removal process: If the occupant is a bona fide tenant, the Clerk generally cannot remove that tenant through an estate proceeding; removal usually must go through the landlord-tenant summary ejectment process.
  • Self-help lockouts: Changing locks or shutting off utilities without clear authority and the correct process can create avoidable disputes and potential liability, especially when the occupant claims tenant rights.
  • Not preserving assets: A personal representative has a duty to preserve estate assets and act prudently. Common misses include letting insurance lapse, failing to secure valuables, or allowing property conditions to deteriorate while waiting for “someone else” to act.
  • Leasing or mortgaging without authority: Leasing or mortgaging estate real property can require the personal representative to first obtain possession, custody, and control and then obtain an order authorizing the transaction, depending on how title is held and what the will says.

Conclusion

In North Carolina, securing a decedent’s property and managing occupants during probate starts with confirming who has legal authority: a personal representative may need an order from the Clerk of Superior Court to take possession, custody, and control of the real property unless an exception applies. If someone is living in the home, the next step depends on whether that person is a bona fide tenant (handled through landlord-tenant court procedures) or a non-tenant occupant (often addressed through estate proceedings once possession rights are established). The most important next step is to open the estate and obtain Letters so the proper petition can be filed with the Clerk promptly.

Talk to a Probate Attorney

If an estate property needs to be secured or someone is living in the home and there are questions about who has authority to act, our firm has experienced attorneys who can help explain the options and timelines under North Carolina probate procedures. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.