How can I get the deed changed into the heirs’ names when the property was only in the deceased person’s name and there’s no mortgage? – North Carolina

Short Answer

In North Carolina, a house that was titled only in the deceased person’s name usually cannot be “re-deeded” into the heirs’ names just by signing a new deed. The cleanest path is to probate the will with the Clerk of Superior Court and then record the probated will (and probate certificate) in the county where the home is located so the land records show who owns it. If the will was never probated and more than two years have passed since death, extra title issues can come up, so it is important to address the probate and recording steps carefully.

Understanding the Problem

In North Carolina probate, the key question is: can a grandchild and other family members change the deed into the heirs’ names when the home was owned only by the deceased person, the will exists, and no estate was ever opened? The practical goal is to get the county land records to reflect the correct owners so the family can insure, maintain, refinance, or sell the property. The decision point is whether the will must be probated (and recorded in the property’s county) before the title can be treated as having passed to the people named to receive the house.

Apply the Law

North Carolina treats a duly probated will as the document that makes a devise effective for title purposes, and the probate record must be placed in the county where the real estate sits to protect the devisees’ title in the public records. When a will was never probated, the land records typically still show the deceased person as the owner, which creates a “break” in the chain of title. The main forum for these steps is the Estates Division of the Clerk of Superior Court (the clerk’s office that handles estates) in the county tied to the estate, and then the Clerk/Register of Deeds process in the county where the property is located for recording.

Key Requirements

Probate of the will: The will generally must be admitted to probate so it can operate to pass title to the people named to receive the house.
Correct “next generation” ownership: If the will left the house to the decedent’s children and those children later died, the title path usually requires addressing each death in order (often meaning additional probate steps or proof of how each child’s share passed).
Record the probate in the property’s county: A certified copy of the probated will and the certificate of probate typically must be recorded in the county where the home is located so the land records show the transfer.

What the Statutes Say

N.C. Gen. Stat. § 31-39 (Probate necessary to pass title; recordation; two-year rule for protection against lien creditors and purchasers) – explains that a duly probated will is effective to pass title and sets important timing and recording rules for real estate.

Analysis

Apply the Rule to the Facts: Here, the house was in the decedent’s sole name, and the will was never probated. Under North Carolina practice, that usually means the public land records still do not show the children (the original devisees) as owners, and they also do not show the grandchildren/cousins as the current owners. Because the will left the house to the decedent’s children who have since died, the family typically must (1) probate the original will so the children’s interests are established, and then (2) address how each child’s interest passed after that child died, before a deed can be recorded that accurately places title into the grandchildren/cousins’ names.

Process & Timing

Who files: Usually the person named as executor in the will, or another interested person if the named executor cannot or will not serve. Where: Estates Division, Clerk of Superior Court (typically in the county where the decedent was domiciled at death). What: File the original will and an application to admit the will to probate; in some “real estate only” situations, the will may be probated without qualifying a personal representative, depending on the estate’s assets and goals. When: As soon as possible; timing matters if the property might be sold or financed and can matter under the two-year protection rule discussed in the statute.
Record the probate for the property: Obtain certified copies of the probated will and the certificate of probate from the clerk, then record them in the county where the home is located so the land records reflect the devise.
Clear the “second layer” of ownership: Because the will left the house to the decedent’s children (who later died), each child’s share must be traced to the current owners. Depending on the facts, that may require opening estates for the children, using other probate procedures for each child, or otherwise documenting the chain of title so a deed to the grandchildren/cousins can be prepared and recorded without creating a title defect.

Exceptions & Pitfalls

“No mortgage” does not mean “no probate issue”: Even with no loan, buyers, title insurers, and sometimes insurers still require a clear chain of title, which usually means probate and recording steps.
Skipping a generation in the paperwork: When the will leaves the house to children who later died, recording only one deed to the grandchildren/cousins can leave a gap. Title work usually has to account for each death in order.
Assuming a small-estate affidavit transfers the house: Small-estate procedures can help collect and distribute certain personal property, but they do not automatically give authority to sell or “re-title” real estate just because an affidavit was filed.
County-to-county recording problems: If the decedent’s will is probated in one county but the property is in another, the probate documents generally still must be recorded in the property’s county to protect the chain of title.

Conclusion

In North Carolina, changing the deed into the heirs’ names for a house owned only in the deceased person’s name usually requires probating the will with the Clerk of Superior Court and then recording certified probate documents in the county where the property is located. When the will left the house to children who have since died, the title usually must be cleared through each child’s death before the grandchildren/cousins can be shown as owners. The next step is to file the will for probate with the Clerk as soon as possible, because timing can affect title protection under N.C. Gen. Stat. § 31-39.

Talk to a Probate Attorney

If a family is dealing with a house still titled in a deceased relative’s name and a will that was never probated, our firm has experienced attorneys who can help sort out the probate steps, the recording requirements, and the title timeline. 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.