Do heirs need to sign a new lease or written agreement before allowing a farmer to use the land during probate? – North Carolina

Short Answer

Often, yes—some written agreement should be signed before a third party farms inherited land during probate in North Carolina, but the right person to sign depends on where the estate is in the process. Title to most real estate generally vests in the heirs or devisees at death, yet a personal representative can take control of the property for estate administration and may need to join in (or obtain court authority for) a lease during administration. A “handshake” arrangement can create disputes about rent, crop rights, liability, and whether the lease is valid against the estate and creditors.

Understanding the Problem

In North Carolina probate, when a parent dies owning land and the heirs will co-own it, a common question is whether the heirs can simply allow a farmer to use the land while the estate is still open, or whether a new lease or written agreement must be signed first. The decision point is who has the legal authority to grant use of the land during the probate timeline—heirs as owners, the personal representative as estate fiduciary, or both—so the arrangement is enforceable and does not create avoidable problems during administration.

Apply the Law

Under North Carolina law, real estate commonly passes to heirs (if there is no will) or devisees (if there is a will) as of the decedent’s death, subject to the estate administration process. Even when heirs hold title, a personal representative (executor/administrator) may take possession, custody, and control of the real property if the personal representative determines it is in the best interest of administering the estate. Separately, North Carolina has rules that can affect whether a lease made by heirs during the first two years after death is effective against the estate and creditors unless certain probate steps have occurred and, in some situations, unless the personal representative joins in the lease.

Key Requirements

Authority to grant use: The lease or permission should be granted by the person(s) with legal authority at that point in the probate process (often the heirs as owners, but sometimes the personal representative must join or obtain approval).
Clear terms in writing: A short written farm lease or use agreement should spell out rent (cash or crop share), term dates, access rights, maintenance duties, and who carries insurance and liability risk.
Probate timing compliance: During administration—especially early in the estate—leases can be challenged if they are made before key probate notices are published or if the personal representative does not join when required.

What the Statutes Say

N.C. Gen. Stat. Chapter 28A (Administration of Decedents’ Estates) – Contains the rules on a personal representative’s powers and procedures affecting estate real property during administration (including when court involvement may be required).
N.C. Gen. Stat. § 42-5 (Rent apportioned where lease terminated by death) – Addresses how rent can be handled when a lease is affected by a party’s death, illustrating that death can change lease rights and payment timing.

Analysis

Apply the Rule to the Facts: Here, two siblings are inheriting and co-owning a deceased parent’s land in North Carolina, and a third party wants to farm while probate is pending. Because the land is transitioning through probate, the safest approach is a written agreement signed by the correct decision-maker(s) for that stage: the heirs as co-owners, and in many situations the personal representative should also sign (or obtain the Clerk of Superior Court’s authorization) so the arrangement is not later attacked as ineffective against the estate or creditors. A written agreement also reduces disputes about who keeps the proceeds, who pays taxes/insurance, and what happens if the estate later needs to sell the property.

Process & Timing

Who files: If court authority is needed, the personal representative typically petitions. Where: The Clerk of Superior Court (Estates) in the county where the estate is administered and/or where the land is located. What: A petition/request describing the proposed farm lease terms and why it benefits the estate. When: As early as possible before the farmer takes possession or plants crops.
Confirm who must sign: Identify whether a personal representative has qualified, whether notice to creditors has been published, and whether the estate is still before final account approval. Those milestones can affect whether heirs acting alone can make a lease that holds up against the estate and creditors.
Put the agreement in place: Use a written farm lease or short-term use agreement that matches the estate timeline (often month-to-month or a defined season) and states what happens if the property must be sold or possession must change during probate.

Exceptions & Pitfalls

Letting the farmer start without a signed writing: This can create disputes about rent, crop ownership, access, and whether the arrangement is a lease or a revocable license.
Only one co-owner “approves” the deal: When siblings will co-own, one heir generally should not grant exclusive farming rights without the other co-owner’s written consent (and, during administration, without coordinating with the personal representative when required).
Ignoring estate administration needs: If the estate later needs to sell the land to pay debts or make distributions, an informal or overly long lease can delay or complicate that process.

Related reading: Issues about estate real estate often overlap with timing and authority questions, including sell estate real estate during probate and sell the estate house before heirship is finalized.

Conclusion

In North Carolina, allowing a farmer to use inherited land during probate should usually be handled with a written agreement, and the correct signer can change depending on the estate’s stage. Even though heirs often hold title at death, the personal representative may control the property for administration and may need to join in (or obtain court authority for) a lease so it is effective against the estate and creditors. The practical next step is to prepare a short farm lease and have it signed by all required parties before possession begins.

Talk to a Probate Attorney

If a third party wants to farm inherited land while probate is pending, our firm has experienced attorneys who can help clarify who has authority to sign, how to structure a short-term lease, and what deadlines and probate steps matter. Call us today at [CONTACT NUMBER].

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.