How do I secure my child’s percentage of the real estate sale proceeds if the surviving spouse sells the property and refuses to pay the share? – North Carolina

Short Answer

In North Carolina, the way to secure a child’s share of sale proceeds depends on why the child has a share (for example, as an heir, as a co-owner on title, or as a beneficiary under an estate plan) and who had legal authority to sell. Common tools include opening (or using) the estate administration file, demanding an accounting, asking the Clerk of Superior Court for orders that restrict transfers or require a bond in an estate proceeding, and filing a civil action to trace and recover proceeds if they were wrongfully kept.

Understanding the Problem

When a North Carolina parent dies owning real estate, a surviving spouse may later sell that property. The decision point is whether the child’s “percentage” comes from the child’s legal interest in the property or from the estate distribution, and whether the surviving spouse had lawful authority to sell without paying the child. The practical issue is how to preserve and recover sale proceeds when the surviving spouse controls the closing, receives the funds, and then refuses to turn over the child’s share.

Apply the Law

North Carolina law gives different remedies depending on the legal role of the parties and the forum that controls the dispute. If the conflict is tied to an estate administration (distribution, accounting, authority of a personal representative, or a claim affecting estate assets), the matter is often handled in an estate proceeding before the Clerk of Superior Court in the county where the estate is administered. If the dispute is a co-ownership problem (for example, the child is a cotenant on the deed) and one owner sells or tries to sell without paying, a partition action or other civil claim may be the correct path. In urgent cases, the most effective protection is often early court involvement to preserve funds (including orders that restrict transfers and, in appropriate cases, a bond) while the ownership and distribution issues are decided.

Key Requirements

Identify the child’s legal basis for a “percentage”: The child’s right may come from title (co-ownership), intestacy, a will/trust, or a court-ordered estate distribution.
Confirm the seller’s authority to convey: The surviving spouse’s ability to sell depends on how title was held and whether the seller acted as a personal representative under court authority.
Use the correct forum and remedy to preserve and trace proceeds: Estate proceedings before the Clerk of Superior Court can address estate administration and protective orders; civil actions can address co-ownership, partition, and recovery of misdirected proceeds.

What the Statutes Say

N.C. Gen. Stat. § 46A-76 (Partition sale procedure) – Sets procedures for partition sales, including notice requirements tied to the sale process.
N.C. Gen. Stat. § 1-339.32 (Reporting sale receipts/disbursements) – Addresses how certain fiduciaries account for receipts and disbursements from public sales in later reports unless the court directs otherwise.

Analysis

Apply the Rule to the Facts: No specific facts were provided, so the analysis uses two common North Carolina patterns. If the child’s “percentage” is a true ownership interest (for example, the child inherited a share of the property and title passed subject to estate administration), then the key goal is to stop dissipation of proceeds and force an accounting that matches ownership percentages. If the child’s “percentage” is a distribution right under an estate (for example, proceeds should have flowed into the estate but were taken or diverted), then the key goal is to use the estate file to require reporting, obtain protective relief to preserve assets, and pursue recovery from the person holding the funds.

Process & Timing

Who files: The child (often through a guardian if the child is a minor), another heir, or the personal representative, depending on the claim. Where: The Clerk of Superior Court in the county where the estate is administered for estate-based remedies; Superior Court for related civil claims (including partition) when the dispute centers on co-ownership. What: Typically a petition or motion in the estate file requesting an accounting and protective relief (such as restricting transfers or requiring security), and/or a civil complaint seeking recovery of proceeds. When: File as soon as refusal to pay becomes clear; delays can make tracing funds harder.
Early protection step: Ask the court for immediate measures aimed at preserving the proceeds while the case is pending. In practice, this often includes requesting orders that prevent further transfer of disputed funds and, in appropriate cases, requiring a bond or other security so the money cannot disappear during the dispute.
Decision and enforcement: After the court determines the child’s legal share and who controls the funds, the court can enter orders that require payment, require a corrected accounting, and (when applicable) authorize additional steps to recover funds that were improperly withheld.

Exceptions & Pitfalls

Title controls the first answer: If the property passed by survivorship (for example, survivorship ownership between spouses), the child may have no automatic “percentage” in that property, even if the will said something different. A title review is often the first step.
Mixing up “estate money” vs. “non-estate money”: Some assets and proceeds do not flow through the estate administration file. The remedy may require adding the right parties and using the right court procedure to reach those proceeds.
Waiting too long to preserve proceeds: Estate and civil remedies can work, but they work best when funds are still traceable (for example, still held in an account). Delay can force a harder, more expensive collection path.
Minor beneficiaries: If the child is a minor, courts often require careful handling of money, and a guardian or similar fiduciary may need to be appointed to receive and manage funds for the child.

Conclusion

In North Carolina, securing a child’s share of real-estate sale proceeds starts with confirming the legal source of the child’s “percentage” and whether the surviving spouse had authority to sell without paying that share. The usual next step is to file a petition or motion in the estate administration matter with the Clerk of Superior Court requesting an accounting and protective relief to preserve disputed proceeds while the court decides ownership and distribution. Acting quickly after the sale or refusal to pay is critical.

Talk to a Probate Attorney

If a surviving spouse sold real estate and is refusing to pay the child’s share of the proceeds, experienced attorneys can help identify the correct legal basis for the share, choose the right forum, and move quickly to preserve and recover funds. 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.