Short Answer

In North Carolina, a guardian cannot sell a ward’s real estate without a court order, and any sale must follow judicial sale procedures. If all co-owners agree, the guardian petitions the Clerk of Superior Court to authorize the sale and then completes a court-supervised sale. If co-owners disagree, any co-owner (including the guardian for the parent) files a partition action; the court can order a partition sale and protect the parent’s share.

Understanding the Problem

You want to sell a North Carolina home owned by multiple siblings while your parent is under guardianship, and one sibling has changed the locks and blocked a listing. The decision point is: can you move forward with a sale and what legal steps get you there in the Clerk of Superior Court?

Apply the Law

North Carolina law requires a court order before a guardian of the estate (or general guardian) can sell a ward’s real property. The sale then proceeds as a judicial sale with reporting, a potential upset-bid period, and court confirmation. When co-owners don’t agree, a partition special proceeding is filed with the Clerk of Superior Court in the county where the land is located. If a sale is ordered in partition, the court must secure the ward’s proceeds for their benefit.

Key Requirements

• Court authorization to sell the ward’s interest: The guardian of the estate (or general guardian) must petition the Clerk for an order to sell because a guardian of the person alone cannot sign a deed.
• Judicial sale procedures: Sales authorized by the Clerk follow judicial sale rules, including reporting, confirmation, and a 10‑day upset‑bid window after a sale is reported.
• Partition if no agreement: If co-owners won’t cooperate, any cotenant (including the guardian for the ward) may file a partition proceeding; the Clerk decides between physical partition or a sale with division of proceeds.
• Protection of the ward’s share: When a partition sale occurs, the court secures the incompetent owner’s net proceeds for their benefit and may direct deposit or restricted handling.
• Proper venue and parties: Petitions are filed with the Clerk of Superior Court; file guardianship sale requests where the guardian is qualified (and follow special steps if the land is in another county), and file partition where the land sits, naming all co-owners.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1301 (Guardian’s sale of ward’s property) – Requires a court order and specific findings before a guardian sells the ward’s real estate.
• North Carolina Gen. Stat. § 1-339.1 (Judicial sales—scope) – Establishes procedures that govern court-ordered real property sales.
• North Carolina Gen. Stat. § 1-339.36 (Upset bids) – Provides the 10‑day upset‑bid process after a reported sale.
• North Carolina Gen. Stat. § 46A-86 (Partition—protection of proceeds for incompetents) – Directs the court to secure an incompetent owner’s proceeds in a partition sale.

Analysis

Apply the Rule to the Facts: Because your parent is under guardianship, the guardian of the estate (or general guardian) must first obtain a court order authorizing any sale of the parent’s interest; a guardian of the person alone cannot convey. With a lock‑changing sibling refusing to cooperate, a partition action is the practical path: the Clerk can order a sale and then ensure your parent’s share is safeguarded. Any sale, whether by agreement or partition, will run through judicial sale steps, including a 10‑day upset‑bid window and confirmation before closing.

Process & Timing

1. Who files: The guardian of the estate (or general guardian) for your parent. Where: Petition the Clerk of Superior Court where the guardian is qualified for sale authority; if land sits in another county, follow the two‑step certification process before filing there. For partition, file in the county where the property is located. What: Petition for authority to sell the ward’s real property; if no agreement, file a partition special proceeding naming all co‑owners. When: File promptly once the guardian is qualified and bond is set; sales require a report and a 10‑day upset‑bid window before confirmation.
2. After the Clerk authorizes a guardianship sale (or orders sale in partition), the sale is conducted under judicial sale rules. Expect listing/marketing or public auction steps, a report of sale to the Clerk, an upset‑bid period, and then a confirmation order. Timing varies by county and by whether upset bids are filed.
3. Upon confirmation, the deed is delivered and proceeds are disbursed. The court will secure your parent’s share (for example, by deposit with restrictions or through the guardianship estate subject to bond). The guardian accounts for the funds in required filings.

Exceptions & Pitfalls

• Wrong guardian type: A guardian of the person cannot sell real estate. You need a guardian of the estate or general guardian with a court order.
• County mismatch: If the land is outside the guardianship county, obtain the initial order where the guardian is qualified and then certify it to the property county before seeking a sale order there.
• Heirs’ property rules: If the home qualifies as “heirs property,” the court may require an appraisal, offer buy‑out rights to co‑owners, and favor an open‑market sale, which can extend timelines.
• Notice and parties: Missing a co‑owner or lienholder can derail a sale. Ensure all necessary parties are properly served in partition.
• Self‑help risks: Changing locks to exclude co‑owners can prompt court intervention. Use court orders for access and preservation instead of self‑help.
• Guardian’s bond: The guardian’s bond may need to be increased before receiving the ward’s sale proceeds.

Talk to a Partition Action Attorney

If you’re dealing with a contested, co‑owned sale while a parent is under guardianship, our firm has experienced attorneys who can help you understand your options and timelines. Call us today to discuss your situation.

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.