Jan82026
Probate Q&A Series

If one parent had a will leaving everything to the other but we can’t locate it, what happens to the home and mortgage now that both have passed? – North Carolina

Short Answer

In North Carolina, if the will cannot be found and cannot be proven as a “lost will,” the estate is usually handled as if there is no will (intestate). That means the home typically passes to the legal heirs under North Carolina’s intestacy rules, but it remains subject to the existing mortgage. To clear title and deal with the mortgage, a probate estate (or another court-approved process) is usually needed through the Clerk of Superior Court in the county where the decedent lived and/or where the property is located.

Understanding the Problem

In North Carolina probate, the decision point is whether a missing will can be located or legally established so it can be used to transfer the home, or whether the estate must be handled as an intestate estate. In this situation, the key actors are the heirs (the children) and the Clerk of Superior Court (the probate court official). The key action is opening the proper estate proceeding so the home’s title can be updated and the mortgage can be addressed after both parents have died.

Apply the Law

North Carolina generally requires a will to be probated to be effective to pass title, especially as to lien creditors and purchasers. If a will cannot be produced, the estate is commonly administered under intestacy rules unless a proper proceeding establishes the missing will. Separately, a mortgage does not disappear at death; it remains a lien on the property and must be kept current or otherwise resolved as part of the estate and title-clearing process.

Key Requirements

  • Determine whether the will can be established: If the original will cannot be found, the person relying on it typically must show the will was properly executed, prove its contents (often with a copy), and explain why the original is missing in a way that overcomes the common presumption that it was revoked.
  • Identify the correct heirs if there is no will: If the will cannot be established, the home passes to heirs under North Carolina intestate succession rules (commonly the children if there is no surviving spouse), subject to estate administration and valid debts.
  • Address the mortgage as a continuing lien: The mortgage remains attached to the home. Probate (and sometimes additional steps with the lender and the Register of Deeds) is often needed so someone has clear authority to manage, refinance, or sell the property.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, both parents have died and the main asset is a home and land with an active mortgage, and there are three children as heirs. If the will that allegedly left everything to the surviving spouse cannot be found (and cannot be established through a proper “lost will” proceeding), the estates are typically handled under intestacy rules, meaning the children may end up owning the property (often as co-owners) subject to the mortgage lien. Even if siblings are willing to assign their shares to one sibling, title usually cannot be “cleaned up” for lender or sale purposes without the right probate filings and recordable documents.

Process & Timing

  1. Who files: Usually an heir (or another qualified person) applies to serve as the estate’s personal representative. Where: The Clerk of Superior Court (Estates Division) in the county where the decedent was domiciled at death; real estate title work also involves the Register of Deeds in the county where the land is located. What: An application to open an estate (intestate administration if no will can be produced, or a petition/proceeding to establish a lost will if a copy exists and the facts support it). When: As soon as practical, especially if mortgage payments are due or a refinance/sale is planned.
  2. Authority is issued: Once appointed, the personal representative receives authority to act for the estate (for example, to communicate with the mortgage servicer, maintain insurance and taxes, and take steps needed to transfer or sell property). County procedures and required supporting documents can vary.
  3. Title-clearing and transfer: After the estate process is properly handled, recordable documents are prepared and filed so the property can be transferred to the heirs (or to one heir if the others convey/assign their interests in a recordable form). If the plan is for siblings to give their shares to one sibling, a notarized handwritten assignment may not be sufficient for real estate title purposes; a properly drafted, recordable deed is commonly used.

Exceptions & Pitfalls

  • “Lost will” proof problems: North Carolina courts often presume a missing original will was revoked if it was last known to be in the testator’s possession. Overcoming that usually requires evidence of a diligent search and facts showing the will was not intentionally revoked, plus proof of execution and contents (often through a copy and witness proof).
  • Joint ownership and survivorship issues: How the home was titled (for example, whether it had survivorship language) can change what passed automatically at the first death versus what must pass through probate. A deed review is often the first practical step.
  • Mortgage and insurance lapses: Even when heirs expect to inherit the home, missed mortgage payments, unpaid taxes, or a lapse in homeowners insurance can create fast-moving problems. The estate representative typically needs to stabilize these items early.
  • Informal “assignments” that do not clear title: A notarized handwritten assignment may help show intent among siblings, but title companies and lenders often require a recordable deed (and sometimes estate documentation) before they will treat one sibling as the sole owner.

For more background on how probate interacts with real estate and mortgages, see probate when the deceased owned a property in only their name and there is still a mortgage and steps needed to transfer family land titled in a deceased relative’s name.

Conclusion

In North Carolina, if the will that allegedly left everything to the surviving spouse cannot be located and cannot be established through a proper lost-will proceeding, the home is typically treated as passing under intestate succession to the heirs, but it remains subject to the existing mortgage lien. The practical next step is to open the correct estate proceeding with the Clerk of Superior Court so a personal representative has authority to address the mortgage and sign the recordable documents needed to clear and transfer title.

Talk to a Probate Attorney

If a parent’s will cannot be found and the family home still has a mortgage, our firm has experienced attorneys who can help sort out whether the estate must be handled as intestate, what documents are needed to clear title, and how to properly transfer siblings’ interests. 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.