Short Answer

In North Carolina, the executor can sell estate real estate if the will gives a power of sale or conveys title to the executor. If the spouse refuses to cooperate or vacate, the executor can ask the Clerk of Superior Court for an order to take possession and, if needed, eject occupants so the sale can proceed. If the will does not grant sale authority, the executor can petition for a court‑ordered sale or, if the spouse co‑owns the home as a devisee, file a partition action to force a sale. First confirm the house actually belongs to the estate; if it passed to the spouse outside probate (for example, joint with survivorship), the will cannot force a sale.

How North Carolina Law Applies

Real estate usually vests in heirs or devisees at death, subject to the executor’s limited right to take control for administration. If the will gives the executor a power of sale or conveys title to the executor, the executor may sell the home without a separate court order when doing so benefits the estate. If the surviving spouse is occupying the home and will not cooperate, the executor may petition the Clerk for an order granting possession and, if appropriate, ejectment of occupants so the sale can close.

If the will does not grant sale authority, the executor can still seek a special proceeding for a judicial sale when funds are needed to pay estate debts and costs. Where the will directs a sale “for division” but gives no sale power, the safer course is to obtain authority through the will’s express power of sale or, if co‑owners disagree, a partition action. If the spouse is a co‑owner under the will and refuses to sell, a partition case can result in a court‑ordered sale and distribution of net proceeds.

Important threshold: if the house passed outside the estate—such as by tenancy by the entirety or joint tenancy with right of survivorship—the will cannot compel a sale. In that case, probate remedies generally do not apply.

Key Requirements

• Executor’s authority to sell: The will must either (a) convey title to the executor or (b) grant an express power of sale (including by incorporating statutory fiduciary powers). With that authority, the executor may sell on terms advantageous to the estate, and a separate court order is not required to sell for the estate’s benefit.
• Taking possession: If occupants block access or a sale, the executor may file an estate proceeding for possession, custody, and control of the real property. The Clerk can authorize possession and, in appropriate cases, eject non‑tenant occupants. Bona fide tenants must be removed through the landlord‑tenant process.
• No power of sale: If the estate needs sale proceeds to pay debts/expenses, the executor files a special proceeding for an order of sale. Judicial sales follow the statutory process, often with a 10‑day upset‑bid period.
• Co‑owned with the spouse as a devisee: If the spouse (or anyone else) inherits an undivided interest and refuses to sell, a partition action can force a sale and split proceeds. This is separate from probate.
• Sales by heirs/devisees within two years: Within two years of death, any voluntary sale by devisees typically requires the executor to join to ensure the buyer takes good title as against estate creditors. Publishing notice to creditors and coordinating with the executor is critical.
• Spousal rights that may affect timing: A surviving spouse may seek an elective share, which is a monetary award from the estate’s total net assets. Also, household furnishings in the marital residence have a temporary protection window in limited circumstances. These rights can affect timing and distribution but usually do not bar an authorized sale of the real estate itself.

Process & Timing

1. Confirm ownership and will terms: Verify how the home is titled (estate property vs. survivorship) and whether the will grants a power of sale or conveys title to the executor. Record the probated will in the county where the property is located so title vests in devisees.
2. If the will grants sale authority: The executor lists the property and proceeds with a sale. If the spouse will not vacate or allow showings, the executor files an estate proceeding for possession and, if necessary, an order to eject non‑tenant occupants. Bona fide tenants must be removed under landlord‑tenant laws.
3. If no sale power and sale needed for debts: The executor files a special proceeding for an order of sale. The Clerk may authorize a public or private judicial sale. Expect a 10‑day upset‑bid period that can extend the timeline if new bids are filed.
4. If co‑owners (including the spouse) refuse to sell: File a partition action in Superior Court to partition or force a sale and divide net proceeds. Mediation is often required, and the court can order a sale if partition in kind is impractical.
5. Coordinate creditor issues: Within two years of death, voluntary sales by devisees generally require the executor to join after publishing notice to creditors, ensuring marketable title as to estate claims.
6. Closing and distribution: Sale proceeds first pay costs of sale and any liens, then estate expenses and valid claims in statutory order. The balance is distributed under the will, subject to any spousal elective share award or court orders.

What the Statutes Say

• Executor’s possession and ejectment: N.C. Gen. Stat. § 28A-13-3 explains the executor’s power to take possession, custody, and control of real property and authorizes court orders to eject occupants in an estate proceeding (tenants require landlord‑tenant process).
• Real estate as estate assets; sale authority: N.C. Gen. Stat. § 28A-15-1 makes real property available to pay debts and, when the will authorizes it, allows the executor to sell without a separate special proceeding. Related sales provisions appear in § 28A-17-8.
• Judicial sale when no sale power and funds are needed: N.C. Gen. Stat. § 28A-17-1 and § 28A-17-2 govern petitions to sell real property to create assets to pay debts, with procedures tied to the judicial sales statutes in Chapter 1, Article 29A (see also upset bids at § 1-339.36 and private sale authority at § 28A-17-7).
• Executor holds title under the will: If the will conveys title to the executor, sales proceed under judicial sale procedures. See N.C. Gen. Stat. § 28A-17-10.
• Sales by heirs/devisees within two years; executor must join: N.C. Gen. Stat. § 28A-17-12 addresses when heir/devisee sales are valid as to creditors and the need for the executor to join in certain sales within two years of death.
• Probate to pass title: N.C. Gen. Stat. § 31-39 explains that probate is required for a will to pass title to real property.
• Spousal elective share: A surviving spouse may claim a monetary elective share; see N.C. Gen. Stat. § 30-3.1 and filing and procedure at § 30-3.4.
• Household furnishings timing rule: N.C. Gen. Stat. § 28A-16-3 limits selling household furnishings in the marital residence during certain spousal election windows.
• Order of payment of claims: Sale proceeds apply to liens and estate claims in the order set by N.C. Gen. Stat. § 28A-19-6.
• Property taken subject to its mortgage: Specific devises generally pass subject to existing liens; see N.C. Gen. Stat. § 28A-15-3.
• Partition of co‑owned property: Partition proceedings are under Chapter 46A of the General Statutes; see the chapter overview at N.C. Gen. Stat. Chapter 46A.

Exceptions & Pitfalls

• Property outside the estate: If the home was owned with survivorship (including tenancy by the entirety), it passed to the spouse at death. The will cannot force its sale, and probate remedies do not apply to that property.
• No sale power in the will: If you need sale proceeds only to divide among beneficiaries and the will gives no sale power, you may need a partition action (if co‑owned) or to obtain authority through the will’s express language. If funds are needed for debts, use the special proceeding for a judicial sale.
• Two‑year rule on heir sales: Within two years of death, buyer’s title can be at risk unless the executor publishes notice to creditors and joins the deed. Coordinate with the executor before closing.
• Occupants and tenants: The Clerk can authorize ejectment of non‑tenant occupants in an estate proceeding; bona fide tenants must be evicted under the landlord‑tenant statutes.
• Upset bids delay closings: Judicial sales include a 10‑day upset‑bid period that can extend timelines.
• Minors or incompetents: If any beneficiary is a minor or incompetent, a Superior Court judge may need to sign sale orders, and a guardian or guardian ad litem may be required.
• Spousal claims: An elective share claim can affect how much is ultimately distributed from sale proceeds. Deadlines and procedures are strict.

Helpful Hints

• Get a current deed and confirm whether the property is estate‑owned or passed by survivorship. This dictates your options.
• Read the will closely for a power of sale or language conveying title to the executor. That can avoid a separate court order.
• If occupants won’t cooperate, file early for possession and ejectment authority so the listing timeline stays on track.
• Publish and mail notice to creditors promptly; it protects buyers and speeds sales within two years of death.
• Keep all receipts, lien payoffs, and closing statements; they are needed for court accountings and beneficiary reporting.

Talk to a Probate Attorney

If you’re dealing with a surviving spouse who won’t sell the house despite the will’s instructions, 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.