Jan242026
Probate Q&A Series

Does a deed override a will when the deed is still only in the deceased person’s name? – North Carolina

Short Answer

In North Carolina, a deed does not “override” a will just because the deed is still in the deceased person’s name. If the deceased never signed and legally delivered a deed transferring the land during life, then the land is still part of the estate and should pass under the will (once the will is properly probated). Even when the will controls, the public records may still show the deceased as owner until probate documents (and sometimes a deed) are recorded to update title.

Understanding the Problem

In North Carolina probate, the key question is whether the land was actually transferred during the grandparent’s lifetime by a valid deed, or whether the land remained owned by the grandparent at death and therefore must pass through the estate under the will. When the deed is still only in the deceased person’s name, it often means no lifetime transfer was completed, but the real issue is what was signed and delivered before death and what was (or was not) probated after death.

Apply the Law

North Carolina generally treats a deed as a lifetime transfer and a will as a transfer that takes effect at death. If the grandparent validly conveyed the land by deed during life (including delivery and acceptance), that land is usually no longer part of the estate, so the will cannot give it away. If no valid deed transfer happened during life, then the will governs who inherits the land—but the will must be probated to be effective to pass title, and additional recording steps may be needed to make the land records match what the will says.

Key Requirements

  • Was there a valid lifetime conveyance?: A deed must be properly executed and delivered during the owner’s lifetime to transfer ownership.
  • Was the will probated in time and in the right place?: A will generally must be probated to pass title, and for real estate it may need to be filed/recorded in the county where the land is located.
  • Do the land records need to be updated?: Even when the will controls, title often remains “in the decedent’s name” in the Register of Deeds records until probate documents (or a fiduciary deed) are recorded.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the deed is still only in the grandparent’s name, and the will says the land should go to a relative. If the grandparent never completed a valid lifetime transfer by deed (signed and delivered to the new owner), then the will is the document that controls who should receive the land at death. Even so, if the will was never probated (or not filed in the county where the land sits), the land records may still show the grandparent as owner and the relative may not have marketable title for a sale or refinance.

Process & Timing

  1. Who files: The executor named in the will (or another interested person if no executor can serve). Where: The Clerk of Superior Court (Estates) in the North Carolina county with probate jurisdiction; for real estate, a certified copy of the probated will and probate certificate may also need to be filed with the Clerk of Superior Court in the county where the land is located. What: An application to probate the will and qualify a personal representative (forms vary by county and situation). When: As soon as practical after death; delays can create title and creditor problems, and there is a key two-year protection window in the statute for certain purchasers and lien creditors.
  2. Next step: Determine whether a personal representative needs to open an estate (for example, to handle debts, claims, or a sale) and confirm the will has been properly probated and, if needed, filed in the county where the land lies.
  3. Final step: Update the land records so the chain of title reflects the transfer (often by recording the certified probate documents and, in some situations, recording an executor’s deed or other appropriate deed depending on how the estate is administered and whether a sale is involved).

Exceptions & Pitfalls

  • A deed may control if it was actually delivered during life: A signed deed that was delivered and accepted before death can transfer the land even if it was never recorded, and then the will cannot give that same land away.
  • “Deed still in the decedent’s name” does not prove the will was followed: The will may be valid, but without probate and proper county filings, the public record may not reflect the devise and title can be hard to insure or sell.
  • County filing issues for real estate: If the will was probated in one county but the land is in another, failing to file the certified probate documents in the land’s county can create problems against third parties. See N.C. Gen. Stat. § 31-39(c).
  • Sales and creditor/estate administration complications: Even when devisees receive title, the property can remain subject to estate administration needs (like paying valid debts) depending on the situation and whether a personal representative qualifies.
  • Will challenges: Probating a will can start important deadlines for will contests (caveats). A late challenge can still disrupt title if not handled correctly.

For more on the practical “what document fixes the deed records” question, see transfer a house left in a will when the deed is still in the deceased person’s name.

Conclusion

In North Carolina, a deed only overrides a will if the land was validly transferred during the owner’s lifetime by a completed deed delivery. If the deed never transferred ownership before death, the land should pass under the will—but the will generally must be probated (and for real estate, properly filed in the county where the land is located) to pass title and protect it against third parties. Next step: file to probate the will with the Clerk of Superior Court and, if applicable, file certified probate documents in the county where the land sits within the two-year window in N.C. Gen. Stat. § 31-39.

Talk to a Probate Attorney

If a will leaves land to a relative but the deed records still show the deceased as the owner, a probate plan can help clarify who owns the property and what must be filed to update title. Our firm has experienced attorneys who can help explain 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.