Should Probate Proceedings Be Opened in North Carolina or Initiated as Ancillary Probate in South Carolina?

Detailed Answer

Losing a spouse creates both emotional and legal challenges. One common question is where to handle probate. If your spouse lived in North Carolina but owned property in South Carolina, you may need two separate proceedings: a primary probate in North Carolina and an ancillary probate in South Carolina.

1. North Carolina Probate Proceedings

North Carolina handles probate based on domicile. Your spouse’s primary estate — personal property, bank accounts, and intangible assets — goes through probate in the county where they lived. Chapter 28A of the North Carolina General Statutes governs this process. In most cases:

• The executor (or personal representative) files the will (if one exists) and a petition with the clerk of superior court.
• If there is no will, you follow North Carolina’s intestacy rules under N.C. Gen. Stat. § 28A-2-1.
• The court issues letters testamentary (for a will) or letters of administration (if no will). Those letters grant authority to settle debts, sell assets, and distribute property.

2. Ancillary Probate for South Carolina Real Estate

Ancillary probate handles out-of-state real estate. South Carolina law requires you open a separate estate there. To start ancillary probate, you typically:

• Obtain certified letters testamentary or letters of administration from North Carolina.
• File those letters and a copy of the will (if any) with the South Carolina probate court where the property sits.
• Follow South Carolina’s ancillary administration rules to sell or transfer the real estate.

Although this creates another court action, it protects you from disputes over property title. See N.C. Gen. Stat. § 28A-6-1 on ancillary administration in North Carolina. While North Carolina statutes define ancillary duties here, you follow South Carolina’s procedures in that state’s court.

3. Why You Need Both Proceedings

• North Carolina probate gives you authority to act on all assets and distribute the main estate.
• South Carolina ancillary probate clears title and protects the new owner’s interest in the real property.
• Skipping the ancillary step can delay sale closing and expose you to creditor claims.

Key Takeaways

• Probate follows domicile: primary estate in North Carolina if your spouse lived there.
• Real estate in another state requires ancillary probate in that state.
• File for ancillary probate using your North Carolina letters from the primary estate.
• Cover both proceedings to avoid delays, clear title, and settle all debts.
• Refer to Chapter 28A of the NC General Statutes for full rules.

Contact Pierce Law Group

Properly handling probate in multiple states can feel overwhelming. At Pierce Law Group, our attorneys guide families through every step. Contact us today to discuss your situation. Email intake@piercelaw.com or call us at (919) 341-7055.