Can a guardian handle decisions about an inherited home when the person under guardianship co-owns it with a relative? – North Carolina

Short Answer

In North Carolina, a guardian can usually make day-to-day management decisions about the person under guardianship’s share of an inherited home (like protecting it, paying necessary expenses, and dealing with insurance). But a guardian generally cannot sell, mortgage, or otherwise transfer the person under guardianship’s real estate interest without a court order from the Clerk of Superior Court. If the home is co-owned with a relative, the co-owner’s rights still matter, and major decisions often require either agreement among co-owners or a separate court process such as partition.

Understanding the Problem

In North Carolina guardianship, the key question is whether a guardian can act for a person under guardianship who inherited a home with a sibling, when the sibling’s mental health issues affect decision-making. The decision point is what the guardian is trying to do with the co-owned home—manage and preserve the person under guardianship’s interest, or take a major step like selling or encumbering the property. The Clerk of Superior Court typically oversees guardianship authority, and co-ownership can limit what any one person (or guardian) can do without court involvement.

Apply the Law

North Carolina separates guardianship authority into roles. A guardian of the person handles personal decisions, while a guardian of the estate (or general guardian) handles property and money. For real estate, North Carolina generally allows a guardian of the estate to manage and protect the ward’s interest, but requires a special proceeding and a court order before selling, mortgaging, exchanging, or entering a long-term lease of the ward’s real property. Co-ownership adds another layer: even if a guardian can act for the ward’s share, the guardian cannot unilaterally dispose of the other co-owner’s share, and disagreements may lead to a partition case in the Clerk of Superior Court.

Key Requirements

  • Proper authority (type of guardian): A guardian of the estate (or general guardian) is the role that typically has authority to handle property decisions; a guardian of the person alone usually does not have power to sell or manage real estate.
  • Court approval for major real estate actions: Selling, mortgaging, exchanging, or leasing the ward’s real estate for more than three years generally requires a verified petition and an order from the Clerk of Superior Court.
  • Co-owner rights still apply: Co-ownership means the guardian can act only for the ward’s ownership interest; resolving a sale of the whole property usually requires co-owner agreement or a partition process supervised by the court.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, two siblings inherited a family home, and one sibling has significant mental health issues affecting decision-making. If a North Carolina court has found that sibling incompetent and appointed a guardian of the estate (or general guardian), the guardian can typically take protective steps for that sibling’s ownership interest (for example, arranging insurance, preventing waste, and paying necessary carrying costs from the ward’s funds when appropriate). But if the goal is to sell the home, refinance it, or sign a long-term lease, the guardian usually must ask the Clerk of Superior Court for permission, and the co-owner sibling’s separate ownership rights still have to be addressed through agreement or a partition process.

Process & Timing

  1. Who files: The guardian of the estate (or general guardian). Where: Typically with the Clerk of Superior Court in the county where the real property is located. What: A verified petition in a special proceeding requesting authority to sell, mortgage, exchange, or lease the ward’s real estate. When: Before signing a contract to convey the ward’s real estate interest or otherwise committing the ward to a transfer.
  2. Notice and hearing: The clerk can require that certain family members or interested parties be joined or notified. The clerk reviews evidence and decides whether the requested transaction is in the ward’s best interest under the statutory standards.
  3. If co-owners disagree: If the co-owners cannot agree on a sale or buyout, a partition action may be the practical path to a court-supervised resolution, which can result in a sale and division of proceeds according to ownership interests.

Exceptions & Pitfalls

  • Wrong type of guardianship: If only a guardian of the person is appointed, that guardian may not have authority to manage or transfer real estate. A guardian of the estate (or general guardian) is usually required for property decisions.
  • Assuming co-ownership allows unilateral action: Even with guardianship authority, the guardian generally cannot sell the entire home without addressing the other co-owner’s interest. A deed signed by only one owner (or one owner’s guardian) usually cannot convey full title.
  • Skipping the clerk’s approval: Trying to sell or encumber the ward’s real estate without the required special proceeding can derail a closing and create disputes about authority.
  • Not separating “management” from “transfer” decisions: Paying taxes, maintaining insurance, and preserving the property are different from selling or refinancing. Mixing these categories can lead to avoidable court delays.

Conclusion

In North Carolina, a guardian of the estate can usually manage and protect the person under guardianship’s ownership interest in an inherited, co-owned home, but major decisions like selling, mortgaging, exchanging, or signing a long-term lease generally require a court order from the Clerk of Superior Court. Co-ownership also means the other relative’s rights must be addressed, often through agreement or a partition case if there is a deadlock. The next step is to file a verified petition with the Clerk of Superior Court in the county where the home is located before any sale is finalized.

Talk to a Guardianship Attorney

If a family inherited a home and one co-owner cannot make reliable decisions due to mental health issues, our firm has experienced attorneys who can help explain guardianship authority, court approval requirements, and options for resolving co-owner disagreements. 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: Guardianship 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.