Short Answer

Yes, in many North Carolina estates you can stop an eviction while administration is ongoing. Only a duly appointed personal representative, acting with proper court authority, can seek to remove an occupant from a decedent’s real property. As the surviving spouse, you may claim powerful rights—such as a life estate in the marital dwelling, a year’s allowance, and an elective share—that can protect your continued occupancy, subject to any valid mortgage or lien.

Understanding the Problem

This question sits at the intersection of North Carolina probate and real property rules: can a surviving spouse keep living in the marital home while the estate is open, even if the decedent’s children object? You are the surviving spouse, you remain in the home and pay the mortgage, and the children are contesting who should serve as administrator.

Apply the Law

Under North Carolina law, title to a decedent’s real estate passes to heirs or devisees at death, but the personal representative (PR) can take possession if doing so is in the best interest of the estate and, if needed, seek a court order to eject an occupant. Beneficiaries themselves generally cannot evict. A surviving spouse may also elect a life estate in the marital dwelling (if statutory conditions are met), claim a year’s allowance for immediate support, and file for an elective share within a strict deadline. The Clerk of Superior Court (Estates Division) is the primary forum for these estate matters.

Key Requirements

• Authority to remove an occupant: Only a properly appointed PR, not individual children/beneficiaries, can ask the court to authorize ejectment of someone occupying estate real property (non-tenant).
• Spousal life estate in the dwelling: A surviving spouse may elect a life estate in the usual dwelling house if the decedent owned it and the spouse occupied it at death, protecting continued occupancy, subject to certain liens.
• Year’s allowance: A surviving spouse may claim a $60,000 allowance from personal property for support; this does not itself transfer real estate but shores up immediate financial needs.
• Elective share deadline: A surviving spouse must file the elective share petition within 6 months after letters of administration/executorship are issued.
• Mortgages vs. title: Loan paperwork (whose name is on the mortgage) does not control deed ownership; valid liens remain enforceable against the property regardless of occupancy rights.

What the Statutes Say

• N.C. Gen. Stat. § 28A-13-3 (PR powers; possession and ejectment) – PR may take possession of real property if in the estate’s best interest and seek orders to eject occupants.
• N.C. Gen. Stat. § 29-30 (Spousal life estate election) – Surviving spouse may elect a life estate in the dwelling house and certain real estate, with conditions and lien rules.
• N.C. Gen. Stat. § 30-15 (Year’s allowance to spouse) – Provides a $60,000 allowance for one year’s support from personal property.
• N.C. Gen. Stat. § 30-3.4 (Elective share procedure) – Sets the 6‑month filing deadline from issuance of letters and outlines filing/service requirements.

Analysis

Apply the Rule to the Facts: You are the surviving spouse living in the marital home and paying the mortgage. The children, as beneficiaries, generally lack authority to evict you; a duly appointed PR would need a court order to take possession or eject a non-tenant occupant. You can strengthen your position by electing a life estate in the dwelling (if you occupied it at death and the decedent owned it) and by filing for an elective share within 6 months of the letters. Claiming the year’s allowance supports immediate needs while these issues are decided.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court (Estates Division) in the county where the estate is administered. What: (a) Petition to elect a life estate in the dwelling; (b) Application and Assignment of Year’s Allowance (AOC‑E‑100); (c) Elective Share Petition with Estate Proceeding Summons (AOC‑E‑102). When: File the elective share within 6 months after letters are issued; for the year’s allowance, if a PR has been appointed, file within six months after letters.
2. If beneficiaries or a PR attempt removal, promptly object in the estate proceeding and request a hearing before the Clerk. If needed to stop a lockout, seek temporary injunctive relief to maintain the status quo while your life‑estate and elective‑share rights are determined. Timeframes for hearings vary by county.
3. After the hearing(s), expect the Clerk’s order(s) recognizing your spousal claim(s) (e.g., life estate, year’s allowance, elective share) or setting possession terms. If a PR was seeking possession, the order will address whether that is in the estate’s best interest and any conditions.

Exceptions & Pitfalls

• If the home was owned with you as tenants by the entirety or with right of survivorship, it likely passed to you automatically; eviction is not at issue, though any valid mortgage still applies.
• The spousal life estate in the dwelling requires that the decedent owned the residence and that you occupied it at the time of death; prenups, separation agreements, or prior waivers may bar the election.
• Life‑estate occupancy is subject to certain pre‑existing liens (for example, a purchase‑money deed of trust). Paying the mortgage does not change deed ownership.
• Children/beneficiaries typically lack standing to bring a landlord‑tenant summary ejectment against a non‑tenant spouse. A PR must proceed through the estate court, and you can be heard before any removal order issues.
• Deadlines and procedures can change; verify local filing practices with the Clerk of Superior Court and act promptly.

Talk to a Probate Attorney

If you’re facing pressure to move out of the marital home during an estate, our firm can help you assert spousal rights and meet critical deadlines. Call us today to discuss your options.

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.