Probate Q&A Series

If Real Property Passes Automatically at Death in North Carolina, Why Do I Still Need to Probate the Will?

Short Answer

North Carolina real estate does technically pass to the heirs or devisees the moment the owner dies. However, you still need to probate the will (or open an estate if there is no will) so that title can be cleared of creditor claims, taxes, and administration issues. Without probate you may not be able to sell, refinance, or use the property as collateral because the public record will not show who owns marketable title.

Detailed Answer

1. Title v. Marketable Title

Under N.C. Gen. Stat. § 29-15, real estate vests immediately in the beneficiaries named in the will (or in the heirs under the intestacy statute). But that vesting is subject to the probate court’s authority to collect assets, pay debts, and handle taxes. The heirs have what lawyers call “equitable title,” not marketable record title.

2. Two-Year Creditor Lien on Real Property

The estate’s creditors have a statutory lien on inherited real estate for two years after the date of death (N.C. Gen. Stat. § 28A-15-1(c)). Probate lets the personal representative either:

  • Use estate funds to pay claims and release the lien early, or
  • Sell the property with court approval (Article 17, Chapter 28A).

Without probate, the lien remains and most buyers will refuse to close.

3. Clearing Title for Future Sales or Loans

When you probate the will, the clerk of court issues “Letters Testamentary” to the executor. After debts and taxes are satisfied, the executor can sign a personal representative’s deed that:

  1. Recites compliance with N.C. Gen. Stat. § 28A-20-1 (accounting and settlement requirements), and
  2. Gets recorded in the county register of deeds, putting the world on notice that marketable title has transferred.

Without that deed, a title insurer will list an exception, blocking your closing.

4. Accessing Non-Real Estate Assets and Completing Tax Filings

Even if real property is the only asset, probate may still be essential to:

  • File the decedent’s final income tax return and any estate tax return.
  • Collect life insurance or retirement benefits payable to the estate.
  • Distribute personal property (vehicles, household goods, bank accounts).

5. Hypothetical Example

Mary dies in Wake County owning her residence and a small checking account. Her will leaves everything to her two children, Alice and Ben.

  • The house’s title vests in Alice and Ben at death, but an old medical bill surfaces for $18,000.
  • Alice wants to sell the home immediately. The closing attorney discovers the unsatisfied creditor lien and refuses to insure the title.
  • Alice opens probate, becomes executor, publishes Notice to Creditors, and settles the $18,000 bill from the checking account.
  • After filing an accounting approved under § 28A-21-2, she records a Personal Representative’s Deed. The closing proceeds without delay.

Helpful Hints

  • Order a copy of the decedent’s deed to confirm legal description before probate.
  • Open the estate within 60 days to avoid missed creditor deadlines.
  • Keep a spreadsheet of all estate expenses; you will need receipts for the final accounting.
  • File a year-of-death property tax exemption application if the decedent qualified.
  • Consult a North Carolina probate attorney before attempting a private sale of inherited real estate.

Need Help Clearing Real Property Title?

Probate can feel overwhelming, but prompt action protects your inheritance and preserves property value. Our North Carolina probate attorneys guide families through every step—opening the estate, satisfying creditors, and recording deeds that deliver clear title. Call us today at (919) 341-7055 for a confidential consultation.