Understanding the Problem
When a co-owner of real estate dies, the public records may continue to show that person on the last recorded deed even though ownership has changed by operation of law. The correct way to document the change depends primarily on whether the property was held with a right of survivorship or as tenants in common. Reviewing the recorded deed is therefore the first step.
Apply the Law
Key Requirements
- Verify the ownership form: Review the recorded deed to determine whether the owners held title as joint tenants with right of survivorship, tenants by the entirety, or tenants in common.
- Gather the documents: Obtain a certified death certificate, the original deed reference, any will and probate documents, and any Letters Testamentary or Letters of Administration.
- Choose the correct recordable documents: Survivorship property may require an affidavit or other evidence of death acceptable for recording and title examination. Property held as tenants in common may require probate records and, depending on the intended ownership, a deed from the heirs, devisees, or another person with legal authority to convey.
- Record in the proper county: File the required documents with the Register of Deeds or clerk’s office, as applicable, in the county where the property is located.
What the Statutes Say
North Carolina recognizes a joint tenancy with right of survivorship when the instrument expresses the required intent. See G.S. 41-71. Property held as tenants by the entirety generally belongs to the surviving spouse upon the other spouse’s death, subject to the statutory slayer exception. See G.S. 41-64.
For co-owners with a right of survivorship, North Carolina generally requires the survivor to outlive the deceased owner by at least 120 hours unless the governing instrument or another statutory exception provides otherwise. See G.S. 28A-24-3.
If the property was held as tenants in common, the deceased owner’s share does not pass automatically to the surviving co-owner. Title to the decedent’s real property generally vests at death in the heirs, or in the devisees under a valid probated will, as provided by G.S. 28A-15-2. A will must be duly probated to pass title, and additional filing requirements apply when the property is located outside the county where the will was probated. See G.S. 31-39.
Analysis
Process & Timing
For property held with a right of survivorship, obtain a certified death certificate and consult the county Register of Deeds or a probate attorney about preparing an affidavit of death or other appropriate recordable evidence. The document should identify the decedent, the surviving owner or owners, the original deed reference, and the survivorship language. Recording the accepted documents helps show the ownership change in the public record without a probate conveyance of the deceased owner’s survivorship interest.
For a tenancy in common, file the will and begin estate proceedings when required. An application for Letters Testamentary or Letters of Administration is governed by G.S. 28A-6-1. After the heirs or devisees and any applicable estate-administration issues are identified, the proper parties may execute a deed if ownership is to be consolidated or transferred. Any deed must be properly executed, acknowledged, and recorded with the Register of Deeds.
Exceptions & Pitfalls
- A deed naming two owners does not necessarily create survivorship; the wording of the instrument controls.
- The 120-hour survival requirement or the slayer statute may prevent the ordinary survivorship result.
- A personal representative does not automatically own the decedent’s real property or have unrestricted authority to convey it. The will, statutes, estate needs, and any required court authorization must be reviewed.
- If a will was probated in a different North Carolina county from the property’s location, certified probate documents may need to be filed in the county where the land lies.
- Recording requirements and the evidence requested by title examiners can vary with the deed, estate, county, liens, and intended transaction.
- Delays or incorrectly prepared documents can complicate a sale, refinancing, or later title search.
Conclusion
In North Carolina, the controlling question is whether the recorded deed created survivorship or a tenancy in common. Survivorship property generally passes to the qualifying survivor, while a tenant-in-common interest vests in the decedent’s heirs or devisees and may require probate records and a later deed. Review the deed, will, death certificate, and estate file before recording anything. The next step is to confirm the county’s requirements and have the appropriate title documents prepared and recorded.
Talk to a Probate Attorney
Pierce Law Group can help review the deed, address probate requirements, and prepare documents needed to clarify title. Contact us for a free case evaluation at [email protected] or (919) 341-7055.
