How Does Ownership of Real Estate By Spouses Get Handled During Probate?
1. Detailed Answer
When one spouse dies in North Carolina, whether real estate goes through probate depends on how the surviving couple held title. North Carolina recognizes three common ways spouses own property:
- Tenancy by the Entirety: Only married couples can hold property this way. The law treats spouses as a single legal unit. When one spouse dies, ownership automatically vests in the surviving spouse. This transfer happens by operation of law and does not require probate. See N.C. Gen. Stat. § 41A-1.
- Joint Tenancy with Right of Survivorship: Co-owners designate that upon the death of one, the survivor owns the property outright. Like tenancy by the entirety, the transfer skips probate. Look to N.C. Gen. Stat. § 41-7.
- Tenancy in Common: Each owner holds an individual share. If spouses hold real estate this way, the deceased spouse’s share becomes part of the probate estate. The executor or personal representative must handle its sale or transfer according to the will or state law under N.C. Gen. Stat. § 29-15 and related provisions.
In practice, most married couples choose tenancy by the entirety for primary residences. This simple step ensures the home passes directly to the survivor without court intervention. However, couples who own rental properties, vacation homes or farmland may use different forms of title. In those cases, if title does not include survivorship language, the deceased spouse’s share enters probate.
During probate, the personal representative must:
- Gather and value real estate assets.
- Notify heirs and creditors.
- Obtain court approval for sale or transfer, if required.
- Distribute proceeds or title interests according to the will or intestacy rules in N.C. Gen. Stat. § 29-14.
2. Key Takeaways
- Title type determines whether real estate goes through probate.
- Tenancy by the entirety and joint tenancy skip probate; tenancy in common does not.
- Review deeds and title instruments when planning your estate.
- Probate actions require court filings and possible property sales under Chapter 29 of the North Carolina General Statutes.
- Proper planning can save time, court costs and family stress.
Determining how real estate passes after a spouse’s death can feel overwhelming. At Pierce Law Group, we guide families through North Carolina probate every day. Our attorneys explain each step in plain language. We can review deeds, help you update title types and manage the probate process efficiently.
Contact us today to protect your family’s future and ensure a smooth transfer of your real estate assets. Email us at intake@piercelaw.com or call us at (919) 341-7055.
