07/18/2025
Does Real Estate pass through the Probate process in North Carolina?
Visit www.ncprobateteam.com for more details.
Unlike most states, real estate (real property) does not usually pass through the probate estate in North Carolina. When someone dies owning real property in their name, either alone or with others but without rights of survivorship, the title to that property passes to their heirs or devisees. When there is no will, the title to the decedent’s real property immediately vests in the intestate heirs. [G.S. 28A-15-2(b)]. If the decedent left a Will, title to the decedent’s real property vests in the devisees in the will at the time the will is probated with the Clerk of Superior Court. Usually the devisees are also heirs at law, but not always, so the will should always be probated with the Clerk even if a full estate is not opened. If the new owners of the property plan to sell the real property within two years of the death, the estate will need to be opened and the Notice to Creditors run in order to transfer a clear title. An important note that is often overlooked is that the new owners of the property are responsible for all expenses relating to the real property, barring instructions to the contrary in the will. Therefore, a personal representative should not pay for maintenance costs or other expenses of the real property directly out of the assets of the estate. Often the Executor will pay HOA dues, maintenance expenses and even gas and electric bills out of the estate bank account. Unless all heirs agree and sign an approval for such expenses, these may need to be reimbursed to the estate from the new owners of the property. If you have estate questions call us at 910.729.6644 or email us at [email protected].
The word Probate can mean different things to different people, and it is tossed around like a beach ball in the world of estate administration. The word Probate actually refers to the act of proving a will (which is why we hear “probating a will”), and when there is no will, there is technically no “probate.”
However, the common usage of Probate includes administering an estate, not just probating a will. People use the word loosely, and it’s understandable considering the confusion embedded in the process. One of the biggest uses of the word relates to whether assets of an estate are “probate” or “non-probate” assets. Briefly, here is the difference:
Probate assets are generally those that go through the estate in the Decedent’s home county. These assets are things like bank accounts, vehicles or boats, personal belongings, and often things stocks or bonds which are titled to the Decedent alone.
Non-probate assets are generally those assets that have beneficiary designations already attached to them prior to death, such as retirement accounts (IRA and 401K), life insurance, and many types of investment accounts or annuities.
There are some assets that depend on the titling to determine where they belong. In North Carolina, joint bank accounts that have rights of survivorship are included in an Inventory of the estate, but they generally are not available to creditors of the estate unless there are no other available assets. This is true for stocks and bonds as well, and anything else that is titled jointly with rights of survivorship, along with assets that are titled as Payable on Death (POD), or Transfer on Death (TOD).
The transfer of these types of assets is generally much faster and easier than the transfer of true “probate” assets, which must go through the administration process. Assets that transfer to a surviving spouse have even more protection against creditors, usually.
Real property is an oddity in North Carolina. Here, the title to real property vests directly in the heirs or devisees from a will, unless the Decedent specifies that the Executor should sell it, which is unusual, because it can cause delays and cost more than it would if the heirs inherited directly. So, usually a house is “non-probate” property but it can be “probate” if the Decedent puts it back into the estate.
If you have questions about the titling of your property or other estate administration issues, please call us and we can help direct you to the professionals who can best answer your questions.
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