Short Answer

In North Carolina, a will can pass your house to your spouse only if you still own the house in your name at your death and the will is probated. If a deceased co-owner is still on the deed, you usually must clear that title first and then retitle the property. North Carolina does not offer transfer-on-death deeds for real estate, so your choices are to retitle now (for example, to tenants by the entirety with your spouse) or rely on a will or trust and proper probate later.

Understanding the Problem

In North Carolina, can you rely on a will to leave your house to your new spouse, or must you change the deed now? Here, the house still shows a deceased spouse on the title, no estate was opened for that spouse, and you now want your current spouse on the deed. The decision turns on the current form of title and whether the prior co-owner’s interest has been legally cleared.

Apply the Law

Under North Carolina law, how your deed is titled controls what happens at death. If you and a prior spouse owned as tenants by the entirety (between married spouses) or as joint tenants with an express right of survivorship, the survivor became sole owner at the other’s death; recording a certified death certificate with the Register of Deeds typically cleans up the record. If the prior deed did not include survivorship (for example, tenants in common), the deceased owner’s share passed to heirs or devisees and you must clear that share through probate steps before you can add your new spouse. A will can direct who receives your interest, but title passes only when the will is probated and reflected in the real estate records. North Carolina does not recognize transfer-on-death deeds for real property.

Key Requirements

• Confirm the current title form: Read your recorded deed to see if it says tenants by the entirety or joint tenancy with right of survivorship; otherwise it is usually tenants in common.
• Clear the deceased co-owner’s interest: Survivorship owners record a death certificate; tenants-in-common interests are cleared through probate (probate of will or estate administration) and appropriate conveyances.
• Will effectiveness: A will passes real estate only after probate; record certified probate documents in the county where the land sits.
• Add the new spouse correctly: Once you hold clear title, sign and record a new deed (often to you and your spouse as tenants by the entirety) for automatic survivorship.
• Know what NC doesn’t allow: No transfer-on-death deeds for real property; consider deed changes now or a trust if you want to avoid probate later.

What the Statutes Say

• North Carolina Gen. Stat. § 39-13.6 (Tenancy by the entirety) – Deeds to married spouses create survivorship ownership unless the deed says otherwise.
• North Carolina Gen. Stat. § 41-2 (Joint tenancy) – Survivorship is abolished unless the deed expressly provides it; otherwise interests pass like tenants in common.
• North Carolina Gen. Stat. § 28A-15-2 (Vesting of real property) – Real property vests in heirs or devisees at death; probate formalizes title under a will.
• North Carolina Gen. Stat. § 31-39 (Probate required) – A will must be probated to pass title to real property.

Analysis

Apply the Rule to the Facts: Because your deceased spouse remains on the deed, first confirm how the deed was titled. If you and your former spouse held the house as tenants by the entirety, you became sole owner at that death; recording a certified death certificate should clear the record so you can deed the house to you and your new spouse. If the deed lacked survivorship (tenants in common), your former spouse’s share passed to heirs or devisees and must be cleared through probate steps before you can add your new spouse.

Process & Timing

1. Who files: You (or an interested person for the deceased co-owner). Where: Register of Deeds (for recording) and Clerk of Superior Court, Estates Division (for probate), in the county where the property is located. What: If survivorship applies, record a certified death certificate; if not, file AOC‑E‑199 Application for Probate (Without Qualification of a Personal Representative) to probate the will for real estate only or AOC‑E‑201 Application for Probate and Letters to open an estate. When: As soon as practical; procedures can vary by county.
2. After probate (if needed), record certified copies of the probated will and order in the county where the land sits. If there is a personal representative, they may execute an assent to devise or a personal representative deed; otherwise, heirs/devisees may deed the interest so you hold full title.
3. Once you hold clear title, sign and record a new deed to you and your current spouse (often as tenants by the entirety) with the Register of Deeds. Keep proof of recording.

Exceptions & Pitfalls

• Do not assume survivorship: in North Carolina, joint tenancy survivorship must be stated in the deed; otherwise each owner’s share passes to heirs/devisees.
• If the prior co-owner died intestate (no will), identify and obtain deeds from all heirs or open an estate so a personal representative can convey.
• A will that is not probated does not pass real property in the land records; record certified probate documents in the county where the property lies.
• North Carolina has no transfer-on-death deeds for real property; relying on a TOD designation won’t work.
• Unpaid liens or estate creditor claims can cloud title; clear them before retitling or selling.

Talk to a Estate Planning Attorney

If you’re dealing with clearing a deceased co-owner from title and deciding whether to retitle now or rely on a will later, our firm has experienced attorneys who can help you understand your options and timelines. 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.