Short Answer

In North Carolina, if a home was owned by the decedent and surviving spouse as tenants by the entirety, it passes to the surviving spouse automatically at death and is not part of the probate estate. Will beneficiaries generally have no claim to that home through the will. You can still compel production of the will, open probate for other assets, and require proper inventories and accountings. Limited exceptions exist (for example, slayer issues or creditor claims against certain nonprobate assets), but they do not convert the home into a probate asset for beneficiaries.

Understanding the Problem

You are a North Carolina will beneficiary asking whether you can claim rights to the decedent’s primary residence that passed outside probate to the surviving spouse. The key fact is that the residence was owned as tenancy by the entirety and transferred automatically to the surviving spouse at death.

Apply the Law

Under North Carolina law, real property owned by spouses as tenants by the entirety passes to the surviving spouse by operation of law when one spouse dies. That property does not enter the probate estate and is not controlled by the will. Beneficiaries under a will take only from probate assets or by valid nonprobate designations. If you need transparency about the estate, you can use the Clerk of Superior Court to compel production of the will, have the will probated, and require the personal representative to disclose and account for probate assets. The clerk’s office is the forum for these estate proceedings, and respondents typically have 20 days to respond once served in an estate proceeding.

Key Requirements

• Form of title controls: If the home was held as tenancy by the entirety (or another survivorship form), it passes to the surviving spouse outside probate.
• Wills govern probate assets only: A will does not change survivorship transfers; beneficiaries cannot claim the entirety home through the will.
• Transparency tools exist: An interested person may compel production of the will, open probate, and require inventories/accountings for assets that do belong to the estate.
• Limited exceptions: Certain nonprobate assets can be reached to pay estate debts when probate assets are insufficient, but that does not create beneficiary rights to the entirety home.
• Proper forum: Estate proceedings (e.g., to compel a will or examine someone holding estate records) are filed with the Clerk of Superior Court, and civil procedure tools can be used.

What the Statutes Say

• North Carolina Gen. Stat. § 39-13.6 (Tenancy by the entirety in real property) – Spouses may hold real estate as tenants by the entirety, and the survivor takes the whole at death.
• North Carolina Gen. Stat. § 28A-2A-4 (Compel production of will) – On affidavit, the clerk must summon the will-holder to produce it or explain its whereabouts.
• North Carolina Gen. Stat. § 28A-15-12 (Actions to recover property; examinations) – Estate tools to recover a decedent’s property and examine those holding assets or records.
• North Carolina Gen. Stat. § 28A-15-10 (PR’s authority over certain nonprobate assets) – Personal representative may acquire certain nonprobate assets (e.g., some survivorship accounts or securities) to satisfy claims when probate assets are insufficient.

Analysis

Apply the Rule to the Facts: Because the home was owned as tenancy by the entirety, it passed directly to the surviving spouse and is not available for distribution under the will. As a will beneficiary, you ordinarily have no ownership claim to that residence. You can, however, compel production of the will, have it probated, and require disclosure of probate assets (such as any solely owned accounts or CDs), even if other assets (like the IRA or a survivorship account) passed outside probate. The spouse’s year’s allowance affects personal property inside the estate and does not convert the entirety home into a probate asset.

Process & Timing

1. Who files: An interested person (such as a beneficiary). Where: Clerk of Superior Court in the decedent’s county. What: File an affidavit application to compel production of the will (no standard AOC form) so the clerk can issue a summons to the will-holder. If the named executor has not acted, you may apply to probate the will; use AOC-E-201 (Application for Probate and Letters) or, if real estate is the only asset needing title, AOC-E-199 (Probate without qualification). When: If the named executor has not offered the will within about 60 days of death, an interested person may apply on 10 days’ notice to the executor.
2. To obtain information and documents, file an estate proceeding to examine any person reasonably believed to hold estate assets or records. The clerk issues an Estate Proceeding Summons (AOC-E-102), and respondents generally have 20 days to answer. Subpoenas (Rule 45) are available in these proceedings.
3. Once the will is admitted, the clerk mails notice to beneficiaries. If a personal representative is appointed, they must inventory probate assets and later file accounts; if they do not, you can move the clerk to compel required filings. Expected outcomes include orders to produce the will or records, admission of the will to probate, issuance of letters, and ongoing reporting on probate assets.

Exceptions & Pitfalls

• Slayer issues: If the surviving spouse unlawfully killed the decedent, survivorship interests can be cut off; special statutory rules would apply.
• Creditor claims: Some nonprobate assets (for example, certain survivorship accounts or securities) can be reached to pay estate debts if probate assets are insufficient. That does not give will beneficiaries rights to the entirety home.
• Year’s allowance scope: The spouse’s year’s allowance comes from the decedent’s personal property; it does not pull the entirety home into probate.
• No “will reading” requirement: There is no formal reading. Beneficiaries are notified after the will is probated; until then, use the clerk process to compel production.
• Service and response: In estate proceedings, proper Rule 4 service and the 20-day response period apply; missing these steps can delay relief.

Talk to a Probate Attorney

If you’re dealing with a home that passed outside probate and you need to enforce will production or proper estate administration, 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.