Probate Q&A Series

What happens if someone is squatting in the property before it’s sold and how can we get them removed? — North Carolina

Short Answer

In North Carolina probate, the personal representative (PR) can secure estate real property and remove unauthorized occupants. If the PR already has the right to possess the property (for example, the will gave the PR title or possession), the PR may seek an order to eject occupants. Otherwise, the PR petitions the Clerk of Superior Court for an order granting possession and authorizing ejection. If the occupant is a bona fide tenant, removal must go through a summary ejectment (eviction) case under Chapter 42.

Understanding the Problem

In North Carolina probate, can the estate’s personal representative remove someone living in the home before it’s sold? The decision point is whether the PR (or estate) has the present right to possess the property so it can be secured and listed for sale. If so, the PR seeks the proper court order to regain possession and remove the occupant before marketing the property.

Apply the Law

Under North Carolina law, title to non‑survivorship real estate typically vests in the heirs (if no will) or devisees (if there is a will) at death. Even so, the PR may take possession and control of the property when it’s in the best interest of administering the estate, including the authority to eject occupants. When the PR doesn’t have immediate possession by the terms of the will, the PR files a special proceeding with the Clerk of Superior Court seeking an order granting possession and, if needed, authorizing ejection. If the occupant is a legitimate tenant, removal must be by a summary ejectment action in small claims court under Chapter 42, not through the estate file.

Key Requirements

  • Authority to possess: The PR must have immediate possession under the will, or obtain an order from the Clerk authorizing possession and control of the real property.
  • Best‑interest showing: The PR must determine and show that taking possession is in the estate’s best interest (for example, to sell, secure, insure, or preserve the property).
  • Proper forum: Use an estate special proceeding before the Clerk of Superior Court for possession/ejection of non‑tenants; use summary ejectment (Chapter 42) if the occupant is a tenant.
  • Due process: Serve required parties (heirs/devisees and the occupant) with the estate proceeding summons; a tenant receives Chapter 42 notice and hearing.
  • Enforcement: After an order or judgment, coordinate with the sheriff for execution (no self‑help lockouts).

What the Statutes Say

Analysis

Apply the Rule to the Facts: With no specific facts provided, consider two scenarios. 1) An unrelated occupant moved in after death with no lease. The PR petitions the Clerk for an order granting possession and authorizing ejection, serves the heirs and occupant, and—if granted—uses the sheriff to remove the occupant so the home can be secured and marketed. 2) A tenant was renting from the decedent. The PR must file a summary ejectment case under Chapter 42 in the county where the property sits; the tenant receives statutory notice and a hearing before any writ of possession issues.

Process & Timing

  1. Who files: Personal Representative (executor/administrator). Where: Clerk of Superior Court in the county where the estate is administered (estate special proceeding). What: Verified petition for possession/control of real property and ejection authority; serve an Estate Proceeding Summons (AOC‑E‑102). When: Early in administration, before listing the property; respondents typically have 20 days to answer.
  2. If granted, the Clerk enters an order authorizing the PR to take possession and eject occupants. Coordinate with the sheriff to enforce the order. If the occupant is a tenant, instead file a summary ejectment in small claims court where the property is located using the Judicial Branch forms, then request a writ of possession if you prevail.
  3. After removal, the PR secures, insures, and markets the property (or proceeds with any court‑approved sale). Keep records and report actions in estate accountings as required.

Exceptions & Pitfalls

  • Tenants vs. squatters: A bona fide tenant must be evicted under Chapter 42; the Clerk cannot eject a tenant through an estate proceeding.
  • Self‑help risks: Do not change locks or remove occupants without a court order or writ; use the sheriff to avoid liability.
  • Heirs in possession: An heir or devisee in the home can still be removed through a Clerk’s order granting the PR possession; the order does not change title, only who controls the property for administration.
  • Service and military status: Ensure proper service. If a respondent is on active duty, Servicemembers Civil Relief Act protections may affect timing.
  • Combine when efficient: If you will need to sell, the PR may combine the request for possession with a sale proceeding to streamline administration.

Conclusion

In North Carolina, a PR can secure estate real property and remove unauthorized occupants. If the will gives the PR possession, the PR may seek enforcement and ejection; otherwise, the PR petitions the Clerk of Superior Court for an order granting possession and authorizing ejection. Tenants must be removed via summary ejectment under Chapter 42. Next step: file a verified petition with the Clerk and serve the Estate Proceeding Summons; respondents typically have 20 days to answer.

Talk to a Probate Attorney

If you’re dealing with an unauthorized occupant in an estate home, 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.