Probating Out-of-county or out-of-state Estates to convey Real Property in North Carolina

ISSUE: What do you need to do if there is an estate in one county or state and real property held by the decedent in another county?

In the event a person is administering an estate in one county where the decedent died, but the decedent held property in his/her name in another county, one needs to consider an ancillary proceeding in the county or counties where the real property is located. This is necessary for title to pass to the beneficiaries in the estate.

Clerk of Superior Court enters the order of probate, the title to real estate devised in the will passes (and relates back to the death of the testator NCGS 28A-15-2(b)).  The probated will thereafter constitutes a link in the chain of title.

Pursuant to NCGS 28A-2A-17 (formerly NCGS 31-27), (1) a certified copy of the foreign will and the relevant probate proceeding may be presented to the Clerk of Superior Court in the county where the decedent owned real property. Then (2) the Clerk of Superior Court enters the order of probate, the title to real estate devised in the will passes (and relates back to the death of the testator NCGS 28A-15-2(b)).  The probated will thereafter constitutes a link in the chain of title.

It’s a two step process so that the administrator of the estate not only files the certified copy of the will but gets the Clerk of that county where the real property is located to enter an order of probate.

If the order is not entered then it extends the life where someone could file a caveat concerning that real property. This happened where an out of state will was filed in the county where the real property was located, but no Order of Probate was entered.

Probate (proh-bayt), n. 1. The judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.

- Blacks Law  Dictionary, 7th Edition

 

 

 

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