Do we need to open probate to transfer or sell a home that is in both spouses’ names and still has a mortgage? – North Carolina

Short Answer

Often, no. In North Carolina, if a married couple owned the home as tenants by the entirety (the most common way spouses hold title), the surviving spouse typically becomes the sole owner automatically at death, and the home is not a probate asset. A mortgage does not change the ownership transfer, but it does affect the sale closing because the loan must be paid off or otherwise handled. Probate may still be needed for other estate issues (like other assets, creditor notice, or disputes), even if the house itself passes outside probate.

Understanding the Problem

In North Carolina probate, the key question is whether a home titled in both spouses’ names passes automatically to the surviving spouse at the death of one spouse, or whether a court-appointed personal representative must be involved to transfer or sell it. The issue usually turns on the type of co-ownership shown on the deed and whether the planned sale needs estate authority to deliver clear title. The presence of a mortgage raises a separate practical question about payoff and closing requirements, even when probate is not required for title.

Apply the Law

Under North Carolina law, a home owned by spouses as tenants by the entirety generally belongs to the surviving spouse immediately upon the other spouse’s death, by survivorship. That means the deceased spouse’s share is not something that passes through the estate in the usual way. A mortgage can still be a debt that must be addressed at sale, but it does not automatically force a probate opening just because the deceased spouse’s name remains on the loan. Probate becomes more likely when the deed does not create survivorship (for example, a tenancy in common), when the estate needs to sell the deceased spouse’s interest to pay claims, or when the title company requires estate documentation to insure title.

Key Requirements

How the deed is titled: If the deed shows a survivorship form of ownership (most commonly tenancy by the entirety for spouses), the surviving spouse typically owns the whole property at death without a probate transfer.
Whether the estate must use the home to pay debts or expenses: Even when real estate passes outside probate, estate administration may still be needed for creditor notice, other assets, or to resolve claims that affect the overall estate plan.
Closing requirements for a sale with a mortgage: A sale usually requires a payoff statement and payoff at closing (or another lender-approved solution). Title companies often require a death certificate and may require additional documentation depending on the deed language and timing.

What the Statutes Say

N.C. Gen. Stat. § 41-64 (Tenancy by the entirety; survivorship at death) – provides that, at a spouse’s death, property held as tenants by the entirety belongs to the surviving spouse by survivorship.
N.C. Gen. Stat. § 41-71 (Joint tenancy with right of survivorship) – explains that a deed must express intent to create a joint tenancy with right of survivorship; otherwise co-owners are generally treated as tenants in common.

Analysis

Apply the Rule to the Facts: The home was co-owned by spouses and still has a mortgage. If the deed is in the typical married-couple form (tenancy by the entirety), the surviving spouse likely became the sole owner at death, so opening probate is usually not required just to transfer title before selling. The mortgage still has to be handled at closing, and the lender/title company will require death-related documentation. Separately, the disagreement about a consent/waiver affects the ability to move forward with a formal estate appointment, which may matter for other assets or creditor procedures even if the house passes by survivorship.

Process & Timing

Who confirms title: the family (often through a real estate attorney or title company). Where: the Register of Deeds records for the county where the home is located and the Clerk of Superior Court (Estates) for any probate file. What: review the recorded deed to confirm whether it is tenancy by the entirety or another form of co-ownership; obtain certified death certificate(s) commonly requested for closing. When: before listing the property or as early as possible in the sale process.
If survivorship applies: the surviving spouse typically signs the listing and closing documents as the owner; the closing attorney/title company coordinates mortgage payoff and any lender requirements. Timeframes vary by county and lender, but payoff and title work often take weeks, not days.
If survivorship does not apply (or title is unclear): a personal representative may need to be appointed through the Clerk of Superior Court (Estates) so the estate can properly participate in a sale or otherwise clear title. If a required heir/beneficiary consent or waiver is missing, the Clerk may require formal service/notice and a hearing, which can add delay.

Exceptions & Pitfalls

Deed is not survivorship: If the deed does not create tenancy by the entirety or a right of survivorship, the deceased spouse’s share may pass through the estate, and probate (or another court process) may be needed to sell.
Mortgage confusion: The loan being in both names does not automatically mean probate is required, but it can create closing delays if the lender requires specific documents or if there is uncertainty about who has authority to request payoff information.
Consent/waiver delays for appointment: If a formal personal representative appointment is needed for any reason, missing consents/waivers can slow qualification and may require formal notice procedures through the Clerk.
Debt allocation between estate and surviving spouse: When spouses co-signed a mortgage, questions sometimes arise about whether the estate should contribute toward the debt even though the surviving spouse owns the property after death. That issue is fact-specific and can affect how sale proceeds are handled.

Conclusion

In North Carolina, a home titled in both spouses’ names often passes to the surviving spouse automatically if it was held as tenants by the entirety, so probate is usually not required just to transfer or sell the home, even if a mortgage remains. The mortgage still must be addressed at closing, and the deed language must be confirmed to ensure survivorship applies. The most important next step is to obtain and review the recorded deed and coordinate with the closing attorney/title company to confirm what documentation is required before listing the property.

Talk to a Probate Attorney

If a family is trying to sell a home after a spouse’s death and the paperwork is getting stuck (for example, because a consent/waiver is not signed or the deed language is unclear), our firm has experienced attorneys who can help explain the options and timelines under North Carolina probate rules. 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.