Short Answer

In North Carolina, how due diligence fees and earnest money are handled depends on the type of probate sale. In a normal private sale (with the personal representative or heirs signing), a due diligence fee paid to the seller becomes an estate asset and earnest money stays in escrow until closing or a permitted release. In a court-ordered judicial sale, there is no due diligence period; deposits are handled under the judicial-sale statutes and may be forfeited if the buyer fails to complete the purchase. In all cases, sale proceeds must first pay valid liens and allowed estate claims before any distribution to heirs.

Understanding the Problem

In North Carolina probate, can an administrator or heirs accept a buyer’s due diligence fee and earnest money, and how are those funds applied at closing? Here, the administrator is selling a home from the estate, the offer expires soon and needs both heirs’ signatures, and there are creditor claims to be paid at closing per a mediation agreement.

Apply the Law

North Carolina probate sales occur either as a private sale (the personal representative signs, or the heirs sign with the personal representative joining) or as a judicial sale authorized by the Clerk of Superior Court. The forum is the Clerk of Superior Court for any special proceeding to sell real property to pay estate debts. A core timing rule in judicial sales is the 10-day upset bid period. Regardless of sale type, valid liens and allowed estate claims must be paid from sale proceeds before any heir distribution.

Key Requirements

• Identify the sale path: Private sale with personal representative authority or heir sale with the personal representative joining; otherwise petition the Clerk for a judicial sale to pay debts.
• Handle buyer funds correctly: Due diligence fees (if used) are treated as sale proceeds for the estate; earnest money stays in a trust/escrow account and is credited at closing or released per contract or court order.
• Judicial sale rules control deposits: When the Clerk authorizes a sale, the statutory deposit and upset bid process applies; there is no contractual due diligence period.
• Apply proceeds to obligations first: Closing must satisfy property liens and allowed claims (taxes, approved expenses, creditor claims) before any distribution to heirs.
• Signature/joinder and timing: Within two years of death, heir sales require that the personal representative publish notice to creditors and join in the deed for the sale to be effective as to creditors.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-17-12 (Heirs’ sales within two years) – Heir sales before final accounting are void as to creditors unless the personal representative joins after notice to creditors.
• North Carolina Gen. Stat. § 28A-17-1 (Judicial sale to pay debts) – Personal representative may petition the Clerk to sell real property to pay estate debts.
• North Carolina Gen. Stat. § 1-339.36 (Upset bids) – Judicial sales include a 10-day upset bid period with deposit requirements.
• North Carolina Gen. Stat. § 28A-19-6 (Order of payment of claims) – Sale proceeds first satisfy liens and claims in statutory priority before any distribution.

Analysis

Apply the Rule to the Facts: Because creditor claims and taxes must be paid at closing, any due diligence fee paid now should be treated as an estate asset and accounted for by the administrator. Earnest money should remain in a trust/escrow account until closing or a permitted release. If the reluctant heir will not sign, the administrator can either proceed with a judicial sale (where deposits follow statute and no due diligence period applies) or obtain the heir’s joinder after notice to creditors so the private sale is effective as to creditors.

Process & Timing

1. Who files: Personal representative. Where: Clerk of Superior Court in the county where the land is located (for a judicial sale). What: Petition for authority to sell real property to pay debts; request private or public sale; include heirs as parties. When: Allow for the statutory 10-day upset bid period after the initial report of sale if a judicial sale is used.
2. For a private sale with joinder, publish notice to creditors, ensure the personal representative joins the deed, and structure the contract so any due diligence fee paid to the “seller” is deposited to the estate or closing attorney trust and earnest money is held in escrow until closing.
3. At closing, the closing attorney disburses: first to liens and allowed claims (including taxes and approved expenses), then distributes any remaining proceeds to heirs; the personal representative accounts for all receipts (including any forfeited deposits or due diligence fees) in the estate filings.

Exceptions & Pitfalls

• Do not use a standard “due diligence period” in a court-ordered judicial sale; the judicial-sale deposit and upset bid statutes control.
• Within two years of death, a deed signed only by heirs (without the personal representative joining after notice to creditors) risks being void as to creditors.
• Never release earnest money to heirs without a written release per the contract or a court order; treat any due diligence fee received as estate proceeds and include it in the accounting.
• If an heir refuses to sign documents needed for a private sale, the personal representative may seek a judicial sale to pay debts; all heirs must be made parties in that proceeding.
• Expect the closing attorney to require payoffs of real estate taxes and recorded liens at closing before any distribution to heirs; plan escrow instructions accordingly.

Talk to a Probate Attorney

If you’re dealing with buyer deposits, due diligence fees, and creditor payoffs in a probate sale, 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.