Understanding the Problem
Probate is the court process used to identify estate assets, pay debts, and distribute what remains. Married couples often want a home or other property to pass directly to the surviving spouse without that property becoming part of the deceased spouse’s probate estate. Tenancy by the entirety accomplishes that goal through a built-in right of survivorship.
Apply the Law
Key Requirements
- Creation: The spouses must be legally married to each other when the real property is conveyed to them, and the conveyance must not express a contrary intention.
- Survivorship: When one spouse dies, the surviving spouse becomes the sole owner by virtue of survivorship.
- Probate Avoidance: The deceased spouse has no descendible or distributable interest in the property.
- Creditor Protection: While the tenancy continues, the property generally is not liable for the individual debts of only one spouse.
- Property Covered: The form of ownership principally applies to real property, although North Carolina law includes a specific exception for qualifying mobile homes owned by spouses.
What the Statutes Say
N.C. Gen. Stat. § 41-56 provides that, unless the conveyance expresses a contrary intention, a conveyance of real property or an interest in real property to two people married to each other generally vests title in them as tenants by the entirety. The statute also extends entireties ownership to qualifying mobile homes when spouses become co-owners and the title instrument does not show a contrary intention.
Under N.C. Gen. Stat. § 41-64, property held as tenants by the entirety belongs to the surviving spouse upon the other spouse’s death by virtue of survivorship. The deceased spouse has no estate that is descendible or distributable. N.C. Gen. Stat. § 41-60 further provides that entireties property is not liable for either spouse’s individual debts while the tenancy continues, although it remains liable for joint obligations of both spouses.
Analysis
Process & Timing
If the deed or other qualifying instrument validly created a tenancy by the entirety, the surviving spouse’s ownership follows automatically at death. The property does not pass under the deceased spouse’s will or through intestate succession, and no probate distribution of that property is required. The next practical step is to review the recorded deed and determine what documentation should be recorded or provided to update land records and other ownership records.
Exceptions & Pitfalls
The deed must actually create and preserve tenancy by the entirety. A contrary intention in the instrument, an absolute divorce, a sale, or another event that terminates or changes the ownership form can eliminate survivorship. In addition, the ordinary survivorship rule does not apply when the surviving spouse is a slayer as defined by North Carolina law. Bank accounts, investments, vehicles, and other personal property ordinarily require different probate-avoidance arrangements, such as survivorship ownership or a valid beneficiary designation.
Conclusion
North Carolina tenancy by the entirety keeps qualifying property out of probate because the surviving spouse owns it by survivorship, while the deceased spouse leaves no descendible or distributable interest. The key threshold is whether the spouses were married and the deed or qualifying title instrument validly created and preserved the tenancy. Review the recorded instrument before relying on automatic transfer, then determine what records should be updated. For more detail, read our guide to tenancy by the entirety and probate avoidance in North Carolina.
Talk to a Probate Attorney
Contact Pierce Law Group for a free case evaluation to review your deed, confirm how your property is titled, and discuss probate-avoidance options for your other assets.
