If the home was deeded to both spouses with survivorship, is it outside the estate, and how do we update the tax records and proceed with a sale? – North Carolina

Short Answer

Often yes. In North Carolina, if spouses held the home with a survivorship form of ownership (most commonly tenancy by the entirety), the surviving spouse typically becomes the sole owner automatically at death, and that home is generally not part of the probate estate to be distributed by the administrator.

To update county tax records and sell, the surviving spouse usually provides a certified death certificate (and sometimes probate paperwork) to the county tax office and then sells as the current owner. Title and timing issues can still arise if the deed is unclear, there is a pending estate creditor-notice period, or there are liens or other claims that affect the property.

Understanding the Problem

In North Carolina probate, the key question is whether a home titled in both spouses’ names “with survivorship” passes automatically to the surviving spouse at death, or whether the administrator must treat the home as an estate asset. A related question is what steps allow county tax ownership records to be updated and what paperwork is typically needed to sell the property after the death.

Apply the Law

Under North Carolina law, many married couples hold real estate as tenants by the entirety. This is a survivorship ownership form for spouses. When one spouse dies, the surviving spouse generally becomes the full owner by survivorship, and the deceased spouse’s share does not pass through probate. In practice, the forum for probate issues is the Clerk of Superior Court (estate file), while ownership/tax record updates are handled by the county tax office and the Register of Deeds handles recording documents affecting title.

Key Requirements

Survivorship ownership exists: The deed must show a survivorship form of title (commonly tenancy by the entirety for spouses, or joint tenancy with right of survivorship if that is how it was created).
Surviving spouse outlives the decedent: Survivorship works only if the surviving spouse is living at the moment of death.
No legal bar to taking by survivorship: Certain uncommon situations (for example, a “slayer” issue) can change the normal survivorship result.

What the Statutes Say

N.C. Gen. Stat. § 41-64 (Tenancy by the entirety; survivorship) – Provides that, on a spouse’s death, property held as tenants by the entirety belongs to the surviving spouse by survivorship (with a narrow slayer-related exception).
N.C. Gen. Stat. § 31C-5 (Spousal elective share; action to perfect title) – Addresses circumstances where an action may be used to perfect title to certain property held by a surviving spouse and describes when a personal representative has duties after a written demand.

Analysis

Apply the Rule to the Facts: The facts indicate the home and surrounding land were deeded to both spouses so it would pass to the surviving spouse outside the estate. If that deed created tenancy by the entirety (or another survivorship form), North Carolina law generally treats the surviving spouse as the owner automatically at death, so the administrator’s delay in filing an inventory should not prevent the survivorship transfer of the home itself. Practical issues can still slow a sale, such as uncertainty about the deed language, the need to update county tax records, and any liens or claims that must be cleared for marketable title.

Process & Timing

Who acts: The surviving spouse (as the new owner by survivorship) typically handles the ownership update and sale logistics. Where: County tax office (tax records), Register of Deeds (recording), and the Clerk of Superior Court (estate file if probate documents are needed for reference). What: Typically a certified death certificate; many counties also accept or request a copy of the probate opening paperwork and letters (to connect the death to the estate file and identify the parties for recordkeeping).
Update records: The surviving spouse asks the county tax office to update the ownership listing to the surviving spouse. If the property is in multiple counties, each county’s tax office may need the same set of documents. Some situations also call for recording an affidavit or other confirmatory document in the land records so a future buyer’s title search clearly shows the survivorship outcome.
Proceed to sale: The surviving spouse signs the listing agreement and deed at closing as the seller. The closing attorney or title company will review the recorded deed, confirm the survivorship form of ownership, obtain payoff statements for any mortgages/liens, and determine whether any additional probate-related documents are needed to insure title.

Exceptions & Pitfalls

Deed wording problems: Not every deed to spouses automatically creates a survivorship estate, and older deeds can be confusing. If the deed does not clearly create survivorship, the home may be treated as an estate or partial-estate asset, which changes who can sell and what court approvals may be needed.
Liens and title defects: Even if the home is outside the probate estate, mortgages, judgment liens, unpaid property taxes, or boundary/access issues can still prevent a clean sale until resolved.
Claims tied to the estate (indirect impact): A survivorship home usually does not become an “inventory” asset, but the estate process can still affect closing if there is uncertainty about authority, creditor issues, or paperwork needed to satisfy a title insurer’s requirements.
Year’s allowance is separate: A year’s allowance request focuses on certain allowances from the decedent’s estate; it does not, by itself, determine whether survivorship real estate is in the estate. Mixing these issues can lead to delays and incorrect filings.

Conclusion

In North Carolina, if a home was deeded to both spouses in a survivorship form (most often tenancy by the entirety), the surviving spouse generally becomes the sole owner automatically at death, and the home is typically outside the probate estate. To update tax records and move toward a sale, the practical next step is to take a certified death certificate (and any requested probate opening paperwork) to the county tax office and ask that the ownership record be updated to the surviving spouse.

Talk to a Probate Attorney

If a survivorship deed, delayed probate filings, or unclear title issues are slowing a home sale after a death, our firm has experienced attorneys who can help explain the ownership rules, paperwork, and timelines under North Carolina law. 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.