Jan12026
Probate Q&A Series

Do the properties that were only in the deceased’s name have to go through probate before we can sell or transfer them? – North Carolina

Short Answer

In North Carolina, real estate titled only in the deceased person’s name usually cannot be sold or transferred with clear title until the estate has a personal representative (executor/administrator) and the proper probate filings are on record in the county where the land is located. If there is a will, it generally must be probated (and recorded in the right county) to protect the transfer against later claims by lien creditors or purchasers. By contrast, property held with a survivorship feature (like tenancy by the entirety with a spouse) typically passes to the survivor outside probate.

Understanding the Problem

In North Carolina probate, the key question is whether real property titled solely in a decedent’s name can be sold or transferred after death, and what must happen first in the estate file. The decision point is whether the property passes through the estate process (because it was only in the decedent’s name) or passes automatically to someone else (because it was jointly titled with survivorship). This issue often comes up when an estate is opened with the Clerk of Superior Court and the family needs to sign a deed, close a sale, or clear title for multiple parcels located in different counties or jurisdictions.

Apply the Law

North Carolina treats title and authority differently depending on how the property was titled at death. Solely owned real estate generally requires probate administration steps so that a personal representative has authority to act and so that the will (if any) is effective against third parties. Jointly owned real estate with survivorship (especially tenancy by the entirety between spouses) typically passes to the surviving owner by operation of law and is not administered as part of the probate estate, although recording documents to update the land records is still commonly needed for a later sale.

Key Requirements

  • Confirm the title type: Determine whether each parcel was (a) solely titled in the decedent’s name, (b) held with a spouse as tenants by the entirety, or (c) held with someone else in a form that includes (or does not include) survivorship.
  • Open/maintain the proper estate file: A personal representative must qualify through the Clerk of Superior Court (in the county with jurisdiction over the estate) to handle estate administration and, when needed, to sell estate assets under the correct procedure.
  • Put the right probate record in the right county: For real estate, the will and probate certificate generally must be on file in the county where the land lies to protect the transfer against certain third-party claims, and timing matters.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Some parcels are titled solely in the decedent’s name and others are jointly titled with a spouse. The solely titled parcels usually require probate steps before a buyer or title company will treat the estate as able to convey marketable title, because the personal representative’s authority and the will’s probate/recording status matter. The jointly titled parcels held as tenancy by the entirety typically pass to the surviving spouse by survivorship, so they generally do not need to be administered as probate assets, even though land records often still need updating before a sale.

Process & Timing

  1. Who files: The nominated executor (if there is a will) or an eligible heir (if there is no will). Where: The Clerk of Superior Court (Estates) in the North Carolina county with jurisdiction over the estate. What: Open the estate and obtain Letters Testamentary or Letters of Administration (commonly done using AOC estate forms). When: As soon as practical after death, especially if a sale is pending.
  2. Confirm which parcels are probate vs. non-probate: Review each deed to confirm whether the parcel was solely owned, held as tenants by the entirety, or held in another joint form. This classification affects whether the parcel is treated as part of the estate administration and whether the personal representative must use a court-supervised sale process to sell real estate.
  3. Get authority to sell the solely owned parcels: If the will gives the personal representative a power of sale (or otherwise authorizes a nonjudicial sale), the personal representative may be able to sell without a separate court sale proceeding, subject to the will’s limits. If the will does not give that authority (or if the situation requires it), the personal representative may need a court-ordered sale process through the Clerk of Superior Court, which typically includes notice requirements and an upset-bid period before the sale becomes final.
  4. Record the right probate documents where the land is located: For parcels in different North Carolina counties, the will and probate certificate generally must be filed in the Clerk of Superior Court’s office in each county where the real property lies to protect the transfer against certain third-party claims. For property located outside North Carolina, an ancillary administration (in the other jurisdiction) is commonly required before a deed can be delivered with clear title under that jurisdiction’s rules.

Exceptions & Pitfalls

  • Assuming all real estate is “in probate”: Entireties property with a spouse usually passes by survivorship, while solely titled property usually requires estate administration steps before a sale can close.
  • County-by-county recording issues: When parcels sit in different North Carolina counties, failing to file the probate record in the county where the land lies can create title problems for a later buyer or lender.
  • Wrong sale procedure: If the will does not grant a power of sale, the personal representative may need a court-supervised sale process through the Clerk of Superior Court, which can add time (including an upset-bid period).
  • Ancillary administration delays: Real property located outside North Carolina often requires an additional probate process in that other jurisdiction before a valid transfer can occur there.

Conclusion

In North Carolina, real estate titled only in the deceased person’s name generally must be handled through the estate process before it can be sold or transferred with clear title, including qualifying a personal representative and making sure the will (if any) is properly probated and recorded where the land is located. Property held with survivorship, such as tenancy by the entirety with a spouse, usually passes outside probate. A practical next step is to qualify the personal representative with the Clerk of Superior Court promptly so the correct sale and recording steps can begin.

Talk to a Probate Attorney

If a family is dealing with real property titled only in a decedent’s name and needs to sell or transfer it (especially when parcels are in multiple counties or another jurisdiction), our firm has experienced attorneys who can help explain the options and timelines. 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.