Legal Question in Wills and Trusts in North Carolina

Huh?

Gifts are made by the living. If one person is dead and the other inherits under a will or intestacy law its not a gift.

If a deed to land is in the name of a husband and wife as tenants by the entirety (or similar language), then the land passes to the surviving spouse automatically upon the death of the other spouse. There is no gift or a need for any warranty or non-warranty deeds. Since the transfer of ownership occurs as of the moment of death, that is not subject to probate as it is a non-probate asset.

However, if one spouse to a marriage owned land in just that spouse's name and the spouse died, then the land has to be included in the probate estate. Once the estate is administered, then the surviving spouse could sell the land (in which case a new deed in the name of the spouse would not be required) or if the survivor wanted to retain the land, then the personal representative of the estate would transfer ownership of the property via a non-warranty deed to the surviving spouse.

It should be noted that even if the land is in the name of just one spouse, the other spouse would have inchoate marital rights in it. This can be problematic if the land is to be sold. To avoid problems, the personal representative should at least consult with a probate attorney regarding administration of the estate.