Can I Sell Real Property in North Carolina Without Changing the Deed if the Owner is Deceased?
Full Question:
Answer:
Yes, it is true that NC has a 3 year statute of limitations for presenting claims against an estate. When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. The court will issue letters of administration to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will.
A deed is the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed and notarized by the grantor. In addition to the signature of the grantor(s), deeds must be acknowledged to be recorded and acceptable as evidence of ownership without other proof. A valid deed must be delivered and accepted to be an effective conveyance. Most states assume delivery if the grantee is in possession of the deed. The deed also must be accepted by the grantee. This acceptance does not need to be shown in any formal way, but rather may be by any act, conduct or words showing an intention to accept such as recording the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the county recorder or recorder of deeds in the county in which the real estate is located.
There are many situations in which it may be desirable to add or delete a person's name from a deed, such as adding or removing a spouse, child or sibling. A person can only be deleted from a deed with their approval, i.e., they must execute the deed (sign and have their signature notarized). When a couple solely own a home as joint tenants, one spouse may deliver a deed to the other, such as a deed from husband and wife to an individual, or a deed from two individuals to one individual.
There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The only type of deed that creates "liability by reason of covenants of warranty" as to matters of record is a general warranty deed. A quit claim deed contains no warranties and the seller doesn't have liability to the buyer for other recorded claims on the property. The purchaser takes the property subject to existing taxes, assessments, liens, encumbrances, covenants, conditions, restrictions, rights of way and easements of record. However, a person who obtains a mortgage is still liable for mortgage payments after executing a quit claim deed on the property securing the mortgage. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title.
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
The answer will depend on whether the estate has been probated. I suggest contacting the probate court in the county where the deceased resided or owned real property to see if a petition to probate the estate or a small estate case has been filed. You may also contact the recorder's office in the county where the property is located for applicable rules for transferring a deed to a survivor's name, as procedures vary by local office. Typically, a copy of a death certificate is required to make the change.
Please see the following NC statute:
§ 28A-19-3. Limitations on presentation of claims.
(a) All claims against a decedent's estate which arose before the death
of the decedent, except contingent claims based on any warranty made in
connection with the conveyance of real estate and claims of the United
States and tax claims of the State of North Carolina and
subdivisions thereof, whether due or to become due,
absolute or contingent, liquidated
or unliquidated, secured or unsecured, founded on contract, tort, or
other legal basis, which are not presented to the personal representative
or collector pursuant to G.S. 28A-19-1 by the date specified in the
general notice to creditors as provided for in G.S. 28A-14-1(a) or in
those cases requiring the delivery or mailing of notice as provided for
in G.S. 28A-14-1(b), within 90 days after the date of the delivery or
mailing of the notice if the expiration of said 90-day period is later
than the date specified in the general notice to creditors, are forever
barred against the estate, the personal representative, the collector,
the heirs, and the devisees of the decedent. Provided further, if the
expiration of said 90-day period is later than the date specified in the
general notice to creditors, the notice delivered or mailed to each
creditor, if any, shall be accompanied by a statement which specifies the
deadline for filing the claim of the affected creditor.
(b) All claims against a decedent's estate which arise at or after the
death of the decedent, except claims of the United States and tax claims
of the State of North Carolina and subdivisions thereof whether due or to
become due, absolute or contingent, liquidated or unliquidated, secured
or unsecured, founded on contract, tort, or other legal basis are forever
barred against the estate, the personal representative, the collector,
the heirs, and the devisees of the decedent unless presented to the
personal representative or collector as follows:
(1) With respect to any claim based on a contract with the personal
representative or collector, within six months after the date on which
performance by the personal representative or collector is due;
(2) With respect to any claim other than a claim based on a contract
with the personal representative or collector, within six months after
the date on which the claim arises.
(c) Except as otherwise provided by subsection (f) of this section, no
claim shall be barred by the statute of limitations which was not barred
thereby at the time of the decedent's death, if the claim is presented
within the period provided by subsection (a) hereof.
(d) All claims of creditors upon whom there has been personal service
of notice as provided in G.S. 28A-14-3 are forever barred unless
presented to the personal representative or collector within the time and
manner set out in this Article.
(e) Except as otherwise provided by subsection (f) of this section,
unless a claim has been presented pursuant to G.S. 28A-19-1 giving notice
of an action or special proceeding pending against a decedent at the time
of his death and surviving under G.S. 28A-18-1 within the time provided
by subsection (a) of this section, no recovery may be had upon any
judgment obtained in any such action or proceeding against the estate,
the personal representative, the collector, the heirs, and the devisees
of the decedent.
(f) All claims barrable under the provisions of subsections (a) and (b)
hereof shall, in any event, be barred if the first publication or posting
of the general notice to creditors as provided for in G.S. 28A-14-1 does
not occur within three years after the death of the decedent.
(g) Nothing in this section affects or prevents any action or
proceeding to enforce any mortgage, deed of trust, pledge, lien (including
judgment lien), or other security interest upon any property of the
decedent's estate, but no deficiency judgment will be allowed if the
provisions of this section are not complied with.
(h) The word "claim" as used in this section does not apply to claims
of heirs or devisees to their respective shares or interests in the
decedent's estate in their capacity as such heirs or devisees.
(i) Nothing in this section shall bar:
(1) Any claim alleging the liability of the decedent or personal
representative; or
(2) Any proceeding or action to establish the liability of the decedent
or personal representative; or
(3) The recovery on any judgment against the decedent or personal
representative to the extent that the decedent or personal representative
is protected by insurance coverage with respect to such claim, proceeding
or judgment or where there is underinsured or uninsured motorist coverage
that might extend to such claim, proceeding, or judgment.
