Dec282025
Probate Q&A Series

Can I require someone living there to pay rent or move out, and what proof of authority do I need? – North Carolina

Short Answer

In North Carolina, the right to require an occupant of a deceased person’s property to pay rent or move out depends on who the occupant is (tenant versus non-tenant) and who has legal authority over the property (heirs/devisees versus a court-appointed personal representative). Usually, the proof of authority is court-issued Letters Testamentary (executor) or Letters of Administration (administrator), and sometimes a separate Clerk of Superior Court order authorizing the personal representative to take possession, custody, and control of the real estate. If the occupant is a bona fide tenant, removal generally must follow the landlord-tenant eviction process rather than an estate proceeding.

Understanding the Problem

In North Carolina probate matters, a common question is: can a person handling a decedent’s estate require someone living in the decedent’s home to start paying rent or move out, and what paperwork proves the right to make that demand? The decision point is whether the person attempting to act has legal authority over the property at that moment, which may involve the Clerk of Superior Court and the way title passes at death.

Apply the Law

Under North Carolina law, title to a decedent’s real estate generally passes to the heirs (if there is no will) or to the devisees (if there is a will), subject to estate administration needs. A personal representative (executor or administrator) can still take possession, custody, and control of the real estate when doing so is in the best interest of administering the estate, but the personal representative may need specific authority depending on how the will is written and how the property is occupied. If an occupant is a tenant under a lease or rental arrangement, the personal representative generally must use the landlord-tenant eviction statutes to remove the tenant, not an estate proceeding.

Key Requirements

  • Proper decision-maker has authority: The person seeking rent or move-out must be an heir/devisee with the right to possess, or a duly appointed personal representative acting within the scope of authority granted by the Clerk of Superior Court and (if applicable) the will.
  • Occupant’s status is identified: The process changes depending on whether the occupant is a bona fide tenant/lessee versus someone living there based on a personal relationship with the decedent (for example, a family member or friend with no lease).
  • Correct court process is used: A non-tenant occupant may be removed through an estate proceeding seeking an order to take possession/custody/control and, if needed, ejectment; a tenant is generally removed through summary ejectment under Chapter 42.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Based on the facts provided, a third party is asking who is living at estate property and what authority controls next steps. In North Carolina, the answer turns on (1) whether someone has been appointed by the Clerk of Superior Court as personal representative and received Letters, and (2) whether the current occupant is a tenant under a lease or is living there without a rental relationship. Those two points drive whether rent can be demanded, whether removal is possible now, and which court process applies.

Process & Timing

  1. Who files: Typically the personal representative once appointed. Where: the Clerk of Superior Court in the county where the estate is administered (and, for landlord-tenant eviction, generally District Court/small claims in the county where the property sits). What: proof usually includes Letters Testamentary or Letters of Administration; if the will does not give the personal representative immediate possession/power to take possession, a petition for possession, custody, and control of real property (estate proceeding) may be required. When: as soon as occupancy and estate administration needs make possession necessary, because delays can create maintenance, insurance, and cash-flow problems.
  2. Choosing the correct removal track: If the occupant is a tenant/lessee (written lease or clear rental arrangement), removal usually must proceed as a summary ejectment under Chapter 42, which includes a court summons and hearing. If the occupant is not a tenant and the personal representative has (or obtains) authority to take possession/custody/control, an estate proceeding can request orders enforcing that right, which may include an order to eject the occupant.
  3. What document proves authority to third parties: For banks, insurers, service providers, and many occupants, the practical proof is a certified copy of the Letters issued by the Clerk of Superior Court. If the personal representative’s right to take possession depends on a clerk’s order (rather than immediate authority under the will/title), the additional proof is a certified copy of the clerk’s order authorizing possession, custody, and control.

Exceptions & Pitfalls

  • Tenant versus non-tenant confusion: If the occupant qualifies as a bona fide tenant, trying to remove them through an estate proceeding (instead of Chapter 42) can lead to delays and setbacks.
  • Self-help risks: Lockouts, utility shutoffs, or removing property without a court process can create liability and can complicate the estate’s administration, especially when the occupant is a residential tenant.
  • Missing authority paperwork: A will alone usually does not function as “proof” to demand rent or possession unless the will clearly gives the personal representative power over the real estate; third parties and courts often expect current, certified Letters and, in some cases, an order authorizing possession/custody/control.

Conclusion

In North Carolina, requiring an occupant of estate real property to pay rent or move out depends mainly on the occupant’s status (tenant versus non-tenant) and whether a personal representative has the legal authority to control the property. The most common proof of authority is Letters Testamentary or Letters of Administration, and sometimes a Clerk of Superior Court order authorizing possession, custody, and control. The next step is to qualify a personal representative and obtain certified Letters, then file the correct court action for possession based on the occupant’s status.

Talk to a Probate Attorney

If a decedent’s home is occupied and there are questions about rent, move-out demands, or what paperwork proves authority, our firm has experienced attorneys who can help sort out the correct North Carolina probate and eviction path and the timelines involved. 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: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.