Why Your Home Could Face Probate in NC Without a Trust or TOD Deed
When Real Estate Isn’t in a Trust or TOD Deed: Why Your Loved Ones Might Face Probate
When families in North Carolina lose a loved one, the last thing they want is to be tangled in legal red tape. Yet, when real estate isn’t placed in a trust or covered by a Transfer on Death (TOD) deed, that’s exactly what happens. The property is forced through probate court. Probate delays inheritance, creates added costs, and places extra stress on grieving families. The good news? With the right planning, you can keep your family home out of probate and make sure it passes smoothly to the people you love most.
A Story Close to Home
When Mark’s mother passed away in Garner, he assumed handling her estate would be simple. After all, she had always been organized. The bills were paid, her Will was neatly filed in a folder, and she had told Mark and his sister, “The house will be yours when I’m gone.”
But as soon as Mark contacted the county about transferring the deed, reality hit. Because his mother’s home wasn’t placed in her revocable living trust and no Transfer on Death Deed (TOD deed) had been recorded, the property couldn’t just “pass on” to him and his sister. Instead, it had to go through North Carolina probate.
That meant months of court oversight, lawyer fees, paperwork, and family frustration before they could even think about selling or renting the property. What Mark thought would be a smooth process turned into a drawn-out ordeal at one of the worst times in his life.
Mark’s story is not unique. It’s the reality for countless North Carolina families who don’t realize that real estate is often the biggest trigger for probate.
Why Real Estate Creates Probate Problems
In North Carolina, when a person dies owning real property solely in their name, and it isn’t part of a trust or covered by a TOD deed, that property must usually pass through probate before heirs can inherit.
Probate is the court-supervised process of settling someone’s estate. It ensures debts are paid and property is transferred according to law. While probate may sound harmless in theory, it’s rarely simple in practice.
Contrast this with other assets:
A bank account with a payable-on-death (POD) designation passes directly to the named beneficiary so no probate needed.
A life insurance policy pays out to the beneficiary without court involvement.
But real estate without planning? It sits in limbo until probate is completed.
That limbo is where families often get stuck.
What Probate Means for Families
Probate isn’t just a legal processs. It’s a roadblock during a time of grief. Here’s what families face when real estate isn’t properly planned:
Delays
The average probate case in North Carolina can take 6–12 months or longer.
Until the court signs off, heirs can’t sell, rent, or refinance the property.
Costs
Filing fees, court costs, executor fees, and legal fees quickly add up.
Even modest estates can see thousands of dollars drained before heirs see anything.
Family Tension
When multiple heirs are involved, probate can fuel disagreements.
Who maintains the property? Who pays property taxes during probate? Should the house be sold or kept? Probate courts don’t resolve sibling rivalries. They just enforce procedure.
Loss of Privacy
Probate is public record in North Carolina. Anyone can see who inherited what. That means family financial details become open to the world.
Emotional Toll
Instead of focusing on memories and healing, families are stuck managing paperwork, deadlines, and court hearings.
This is why so many people regret not planning ahead.
Tools to Avoid Probate with Real Estate
The good news? Families don’t have to end up like Mark’s. There are tools available in North Carolina to pass real estate smoothly without probate.
1. Revocable Living Trusts
A revocable living trust is one of the most effective ways to keep real estate out of probate.
You transfer your home into the trust during your lifetime.
You keep full control as trustee.
When you pass away, your chosen successor trustee transfers the property to your beneficiaries directly — no probate court required.
Trusts also allow for flexibility: you can specify conditions (for example, a child may live in the home until they reach a certain age).
2. Transfer on Death Deeds (TODD)
Since 2011, North Carolina has allowed property owners to sign and record a Transfer on Death Deed (TOD deed). This deed names a beneficiary to receive the property upon your death.
Pros: Simple, inexpensive, avoids probate, doesn’t affect your ownership while alive.
Cons: Offers no asset protection, and it might not shield the home from Medicaid estate recovery or creditor claims.
For some families, a TOD deed is a useful tool. But for others, it can create unexpected issues if used without legal guidance.
3. Joint Ownership with Right of Survivorship
Adding a co-owner with rights of survivorship can bypass probate because the surviving owner automatically takes full ownership.
Pros: Simple and automatic.
Cons: Risky. The new co-owner’s creditors, divorce, or debts could affect your property. And once you add someone to the deed, you can’t easily undo it.
North Carolina-Specific Pitfalls
Here’s where many families get tripped up:
A Will Alone Doesn’t Avoid Probate
Many people believe, “I have a Will, so my family won’t deal with probate.” In North Carolina, that’s not true. A Will is actually a ticket to probate. It tells the court how to distribute property, but it doesn’t bypass the process.Medicaid Estate Recovery
If Medicaid paid for long-term care, the state may file a claim against the estate, including the home, after death. Planning tools like trusts can help shield against this risk, while a TOD deed cannot.Court Oversight of Real Estate
In North Carolina, heirs often can’t sell or transfer property until probate is complete and debts are resolved. That means months (or even years) of delay.
Why Professional Guidance Matters
It’s tempting to think you can just file a quick deed or trust document on your own. But as countless families have learned, DIY estate planning can create more problems than it solves.
Incorrectly drafted deeds may invalidate a transfer.
Failure to consider tax implications could mean bigger bills for heirs.
Not addressing Medicaid or creditor issues can wipe out the value of an inheritance.
Working with an experienced estate planning attorney ensures the plan fits your family’s unique situation and North Carolina’s specific laws.
Taking Action Now
Think about Mark’s story again. His mother meant well, but without proper planning, her children faced unnecessary court delays, costs, and stress.
By making sure your real estate is properly titled, whether through a trust, a TOD deed, or another tailored solution, you can spare your loved ones the same frustration.
Your home is more than just a building. It’s the place where you raised children, shared holidays, and built memories. Don’t let probate courts decide how it passes on.
Ready to Protect Your Family’s Home?
At Mackintosh Law, PLLC, we help North Carolina families create plans that protect their homes and spare their loved ones from probate headaches. Whether it’s drafting a trust, recording a TOD deed, or designing a custom estate plan, we make the process clear and approachable.
Schedule your free Discovery Call today and let’s ensure your family home stays a source of comfort, not conflict.
Call us at (919) 336-4219 and request a Discovery call or click the below button.
