How is real estate handled when some property is jointly owned with survivorship and other property is titled only in the deceased person’s name? – North Carolina

Short Answer

In North Carolina, real estate held with a survivorship feature (most commonly tenancy by the entirety between spouses, or joint tenancy with right of survivorship) generally transfers automatically to the surviving owner and is not controlled by the probate estate. Real estate titled only in the deceased person’s name (or owned without survivorship, such as a tenancy in common share) generally passes at death to the heirs (no will) or devisees (will), subject to the estate’s ability to pull the property into administration if needed to pay valid claims and costs. The key is the deed language and the type of co-ownership shown in the county land records.

Understanding the Problem

When a person dies owning more than one piece of North Carolina real estate, different parcels can follow different paths depending on how title appears on each deed. Can a surviving co-owner take full ownership automatically based on survivorship language, while other real estate passes through the will or North Carolina intestacy rules? Can the estate’s personal representative still need access to real estate that otherwise “passes outside probate” to handle claims and administration?

Apply the Law

North Carolina treats real estate differently depending on whether the deed creates survivorship. If the deed creates a survivorship form of ownership, the decedent’s interest generally ends at death and the surviving owner becomes the full owner by operation of law. If the deed does not create survivorship (including sole ownership in the decedent’s name), title generally vests in heirs or devisees at death (and relates back to the date of death), even though the personal representative may later take possession, custody, or control if doing so helps the estate administration.

Key Requirements

Identify how each deed is titled: County land records control. Survivorship language and the form of co-ownership on the deed usually determines whether the property transfers automatically or passes through the decedent’s estate plan/intestacy.
Separate “survivorship” property from “non-survivorship” property: Survivorship property typically passes to the surviving owner; non-survivorship real estate (including property titled only in the decedent’s name) generally vests in heirs or devisees, subject to administration needs.
Account for estate administration needs and claims: Even when title vests in heirs/devisees, the personal representative may seek authority to take possession, custody, or control of real property when it benefits administration, including paying valid claims and costs.

What the Statutes Say

N.C. Gen. Stat. § 41-64 (Tenancy by the entirety; death of a spouse) – Entireties property belongs to the surviving spouse by survivorship (with a narrow exception involving the “slayer” rule).
N.C. Gen. Stat. § 41-74 (Survivorship; 120-hour rule applies to JTWROS) – Applies North Carolina’s 120-hour survival requirement to joint tenancy with right of survivorship.

Analysis

Apply the Rule to the Facts: Where one parcel is owned with survivorship (for example, a married couple holding the home as tenants by the entirety or co-owners holding a joint tenancy with right of survivorship), the surviving owner typically becomes the sole owner at death without waiting for probate distribution. Where another parcel is titled only in the deceased person’s name (or owned without survivorship), title generally vests in the heirs (if there is no will) or in the devisees (if there is a will), and the personal representative may still need to step in if taking control is necessary to handle administration tasks or claims.

Process & Timing

Who confirms title: The personal representative, surviving co-owner, or family members. Where: the Register of Deeds in the county where each parcel is located and the Clerk of Superior Court (Estate Division) in the county where the estate is opened. What: review each recorded deed to confirm whether it includes survivorship language (and the type of co-ownership). When: as early as possible after death so the correct property is listed (or not listed) in the estate inventory and to avoid delays in sale, refinance, or transfer.
Handle survivorship parcels: The survivor typically records or provides proof of death as part of clearing title for future transactions (practice varies by county and situation). If a survivorship issue is disputed (for example, deed language is unclear), a court process may be needed to clear title.
Handle decedent-only (non-survivorship) parcels: If there is a will, probate it with the Clerk of Superior Court; if no will, open an estate administration. Title generally vests in the heirs or devisees, and the personal representative may petition for authority to take possession, custody, or control if needed to manage the property, collect rents, insure it, or address claims.

Exceptions & Pitfalls

Assuming “jointly owned” always means survivorship: Some co-ownership is tenancy in common, which has no survivorship. In that case, the deceased owner’s share generally passes under the will or intestacy, not to the surviving co-owner.
Not checking every county where property exists: Deeds are recorded by county. A family may find one parcel titled with survivorship and a different parcel titled solely in the decedent’s name or in a different form of co-ownership.
Debts and administration needs: Real estate that vests in heirs/devisees may still require action by the personal representative if needed to pay valid claims, protect the property, or complete administration tasks. Delays can create insurance lapses, tax problems, or disputes among heirs and co-owners.
Survivorship complications: North Carolina has survivorship-related rules that can change outcomes in edge cases (for example, the 120-hour survival requirement for some survivorship interests and special rules when a “slayer” is involved in tenancy by the entirety). These issues often require individualized review.

Conclusion

In North Carolina, survivorship real estate generally transfers automatically to the surviving owner and is usually not distributed through probate, while real estate titled only in the deceased person’s name (or owned without survivorship) generally vests in heirs or devisees, subject to the personal representative’s ability to take control if needed for estate administration. The practical next step is to obtain and review the recorded deeds for each parcel and then open an estate with the Clerk of Superior Court for any non-survivorship property so the correct filings can be made promptly.

Talk to a Probate Attorney

If a North Carolina estate includes a mix of survivorship real estate and real estate titled only in the deceased person’s name, attorneys can help confirm the deed language, identify what does (and does not) belong in the probate estate, and keep the administration on track. 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.