If some homes are jointly titled with the surviving spouse, can the spouse sell without probate, and what paperwork will a title company need? – North Carolina

Short Answer

In North Carolina, a surviving spouse can usually sell a home without opening probate if the deed shows the home was owned with a survivorship feature (most commonly as tenants by the entirety for married couples). In that situation, the deceased spouse’s interest does not pass through the estate, and the surviving spouse becomes the sole owner by operation of law. A title company typically needs a certified death certificate and recorded proof of survivorship (often an affidavit of survivorship) tied to the recorded deed.

Understanding the Problem

In North Carolina probate, the key question is whether a home that was titled in both spouses’ names becomes solely owned by the surviving spouse automatically at death, or whether the deceased spouse’s share must pass through an estate administration. The decision point turns on how the deed is written (for example, whether it includes a survivorship right). If the deed creates survivorship ownership, the surviving spouse may have authority to sell based on the deed and proof of death rather than letters testamentary or letters of administration. If the deed does not create survivorship, a sale usually requires an estate process even if a will exists but cannot be found.

Apply the Law

North Carolina recognizes different ways two people can co-own real estate, and the deed language matters. For married couples, the most common survivorship form is tenancy by the entirety. When a home is held as tenants by the entirety, the surviving spouse becomes the sole owner at the moment of death, and the deceased spouse’s estate does not receive an ownership interest in that property. By contrast, a deed that creates tenancy in common (or a joint tenancy without an express survivorship right) generally means the deceased owner’s share passes through the estate to heirs or devisees, which often requires probate steps before a clean sale can occur.

In practice, title companies focus on (1) the recorded deed, (2) proof of death, and (3) recorded documents that “clear” the deceased spouse from title so the buyer receives insurable title. Even when probate is not required for a survivorship property, other estate issues (like a missing will in a safe deposit box) can still matter for other assets, but they usually do not block a survivorship sale if title is clear.

Key Requirements

Survivorship ownership shown in the deed: The recorded deed must show a survivorship form of ownership (commonly tenants by the entirety for spouses). If the deed does not show survivorship, the deceased spouse’s share typically cannot be sold without an estate process.
Proof of death: The title company will require reliable proof that the co-owner died, usually a certified death certificate, so the survivorship transfer can be documented.
Recordable “title clean-up” document: The closing attorney/title company usually records an affidavit or similar instrument in the Register of Deeds to document the survivorship transfer and remove the deceased spouse from the chain of title.

What the Statutes Say

N.C. Gen. Stat. § 39-7 (Instruments affecting married person’s title; joinder of spouse) – Sets rules that often come up in conveyances involving married owners and spousal interests.
N.C. Gen. Stat. § 31C-4 (Perfection of title of surviving spouse) – Provides a statutory path for a surviving spouse to perfect title in certain situations, typically through the clerk of superior court or approved instruments.

Analysis

Apply the Rule to the Facts: The facts indicate a death with a missing will believed to be in a bank safe deposit box, possibly requiring drilling. That missing-will issue can affect whether an estate is opened and who serves as personal representative, but it does not automatically control whether a jointly titled home can be sold without probate. If the deed for a particular home shows the spouses owned it with survivorship (most commonly tenants by the entirety), the surviving spouse typically becomes the sole owner at death and can usually sell once the title company has recorded proof of death and survivorship. If the deed does not include survivorship (or the co-owner is not a spouse), the title company will usually require an estate proceeding (or another court-approved path) before closing.

Process & Timing

Who files: The surviving spouse (or the closing attorney on the spouse’s behalf). Where: The Register of Deeds in the county where the home is located. What: Typically a recordable affidavit of survivorship (naming the property, referencing the deed book/page, and attaching or referencing a certified death certificate) and any other title-company-required affidavits. When: Usually before or at closing so the buyer’s title can be insured.
Title review and underwriting: The title company reviews the deed language to confirm survivorship, checks for liens, and confirms that no probate document is needed for that parcel. Requirements can vary by county practice and by title insurer.
Closing and recording: The surviving spouse signs the deed to the buyer as sole owner, and the closing package (including the survivorship documentation) is recorded.

Exceptions & Pitfalls

The deed does not actually include survivorship: In North Carolina, a “joint tenancy” does not automatically mean survivorship unless the deed expressly provides for it. If survivorship is missing, the deceased owner’s share generally passes through the estate.
Not spouses / not tenants by the entirety: Tenancy by the entirety is limited to married couples. If the co-owner is not a spouse, the survivorship analysis depends on the deed’s exact wording.
Title company documentation varies: Many closings require a certified death certificate and a recorded affidavit of survivorship; some also require an identity affidavit, marital status affidavit, or additional documentation if names differ (middle initials, prior names, etc.).
Estate issues may still exist even if the home avoids probate: A missing will in a safe deposit box may still require a court process for other assets, and delays in accessing the box can slow down the overall administration even if a survivorship home can be sold.

Conclusion

In North Carolina, a surviving spouse can usually sell a jointly titled home without probate if the deed shows survivorship ownership (most commonly tenancy by the entirety). In that case, the deceased spouse’s interest does not pass through the estate, and the spouse sells as the sole owner after the title company documents the death and survivorship in the public records. The most important next step is to obtain a certified death certificate and have the closing attorney record the survivorship paperwork with the Register of Deeds before or at closing.

Talk to a Probate Attorney

If a spouse is trying to sell a home after a death and the deed language, missing will, or safe deposit box issues are creating delays, our firm has experienced attorneys who can help clarify what probate steps are required (if any) and what a title company will likely request. 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.