Short Answer

In North Carolina, you generally probate the will (often without appointing a personal representative) to establish record title in the devisees and then convey by deed. Because more than two years have passed, a sale by the devisees is typically valid as to estate creditors, but you must clear liens like unpaid property taxes. If minors or unascertainable devisees are involved, or if you need court authority to sell, open an estate and seek a court-approved sale.

Understanding the Problem

You want to transfer or sell North Carolina real estate devised under a will, but it has been more than two years since your mother’s death and there are delinquent property taxes. The question is: how do you get marketable title into your name and your co‑devisees’ names (and then to a buyer), with the least procedure necessary, through the Clerk of Superior Court?

Apply the Law

Under North Carolina law, title to real property devised by will vests in the devisees when the will is probated, and that vesting relates back to the date of death. When the only asset is real property, you can often probate the will “without qualification” (no personal representative appointed) to transfer record title. After two years from death, if no notice to creditors was published within that period, a sale by the devisees is valid as to estate creditors and the personal representative. However, tax liens and other encumbrances must be satisfied to convey clear title. If minor or unascertained devisees are included, or if a sale is needed to address estate obligations, the safer path is to qualify a personal representative and seek a court-authorized sale in a special proceeding.

Key Requirements

• Probate the will: File the original will with the Clerk of Superior Court and have it admitted to probate; if real estate is the only asset, use probate without qualification.
• Record for title: Record certified probate documents in the county where the land lies so the devise appears in the chain of title.
• Choose the sale path: After two years, devisees can usually convey by deed; if minors/unascertainable devisees are involved or court supervision is needed, qualify a personal representative and seek a court-approved sale.
• Address liens and taxes: Obtain and pay delinquent property taxes and other liens to deliver clear title at closing.
• Include all necessary parties: Ensure all devisees (or court‑appointed representatives for minors) sign, or proceed through a special proceeding that binds all interests.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-15-2(b) (When title vests) – Real property vests in heirs or devisees (upon probate for devisees), relating back to death.
• North Carolina Gen. Stat. § 31-39 (Effect of probate timing) – Two‑year protection rules for purchasers and lien creditors relative to probate/recording.
• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs or devisees) – Validity of sales by heirs/devisees in light of notice to creditors and timing.
• North Carolina Gen. Stat. § 28A-17-1 (Sale to create assets to pay claims) – Personal representative may seek court order to sell real estate to pay debts/claims.

Analysis

Apply the Rule to the Facts: Because more than two years have passed, once the will is probated and recorded, the devisees can typically transfer by deed without creditor objections tied to the estate process. The unpaid property taxes are liens that must be paid at or before closing. The devise to “the client, three siblings, their descendants, and a child” may involve minors or unascertained interests; if all devisees cannot validly sign, open an estate and ask the Clerk to authorize a sale in a special proceeding so the deed conveys good title free of those interests.

Process & Timing

1. Who files: A devisee or other interested person. Where: Clerk of Superior Court in the decedent’s North Carolina county of domicile. What: Original will, death certificate, and either Application for Probate (Without Qualification of a Personal Representative) (AOC‑E‑199) or Application for Probate and Letters (AOC‑E‑201) if you need a personal representative. When: No strict time limit to probate, but act now to clear title and avoid tax foreclosure.
2. Record a certified copy of the probated will and certificate of probate in the county where the property is located (if different). Order a title search; obtain lien/tax payoff figures. If all devisees are competent and available, convey by deed from all devisees. If not, qualify a personal representative and file a special proceeding for authority to sell; service and a hearing are required. Many counties complete uncontested sales in a few months, plus any upset‑bid period if a judicial sale is used.
3. At closing, pay delinquent property taxes and recorded liens, deliver the deed, and record it. If a court‑authorized sale was used, file the required reports and obtain confirmation per the court’s order.

Exceptions & Pitfalls

• If the will is not probated and recorded in the property’s county, title may not be clear as against certain purchasers or lien creditors.
• Minors or unascertained “descendants” as devisees usually require a court proceeding or guardian to sell; a personal representative’s special proceeding can bind all interests.
• Unpaid property taxes are superior liens; counties can foreclose. Pay them at closing or sooner to prevent loss of the property.

Talk to a Probate Attorney

If you’re dealing with transferring a devised property after two years, with unpaid taxes and multiple devisees, 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.