How does a pour-over will affect my ability to access trust assets not probated with the estate? – North Carolina

Short Answer

In North Carolina, a pour-over will moves any remaining probate assets into the decedent’s trust, but it does not bring trust assets into probate. Trust assets are controlled by the trustee, not the executor, and trust records are private. As a trust beneficiary, you may request the trust document and reports from the trustee; if you cannot locate or obtain cooperation from a trustee, you can open a trust proceeding with the Clerk of Superior Court to compel information or appoint a successor trustee.

Understanding the Problem

In North Carolina estate planning, a pour-over will sends any leftover probate property into a revocable trust. Your question is focused: can you access trust assets that never entered probate? You are a named trust beneficiary, have received no distributions, and you do not know who the current or successor trustee is.

Apply the Law

Under North Carolina law, trusts are administered outside probate. The will’s “pour-over” simply transfers probate residue into the trust; it does not give the executor power over trust assets. A trustee administers the trust and owes beneficiaries duties—including to provide information and reports on request. If there is no acting trustee, a vacancy must be filled. You may ask the Clerk of Superior Court to: (1) compel information or accountings, and (2) appoint a successor trustee if none is serving. Venue generally lies where the trust is administered or where a beneficiary lives.

Key Requirements

• Trust assets stay non‑probate: The pour-over will does not put trust assets into the estate; the trustee, not the executor, controls them.
• Right to information: A qualified beneficiary may request a copy of the trust and periodic reports; the trustee must provide them within a reasonable time.
• If no trustee is available: A vacancy in trusteeship must be filled; the Clerk can appoint a successor when needed.
• Court help to enforce duties: If a trustee fails to communicate, account, or distribute as required, you may petition the Clerk for remedies, including an order to account.
• Where to file: File in the county of the trust’s principal place of administration or any county where a beneficiary resides (inter vivos trusts), unless the trust directs otherwise.

What the Statutes Say

• North Carolina Gen. Stat. § 36C-8-813 (Duty to inform and report) – Trustee must provide trust information and reports to qualified beneficiaries.
• North Carolina Gen. Stat. § 36C-7-704 (Vacancy; successor trustee) – A vacancy must be filled; Clerk can appoint a successor trustee.
• North Carolina Gen. Stat. § 36C-10-1001 (Remedies for breach of trust) – Court may order an accounting and other remedies.
• North Carolina Gen. Stat. § 36C-2-204 (Venue) – Sets the county where trust proceedings are filed.

Analysis

Apply the Rule to the Facts: Because the pour-over will only moves probate residue into the trust, it does not make trust assets part of the estate file, and the executor cannot give you access. As a named beneficiary, you can request the trust instrument and a report from the trustee; however, you do not know who the trustee is. In that situation, you can petition the Clerk of Superior Court to identify the trustee, compel disclosure and an accounting, and, if there is no acting trustee, appoint a successor so the trust can be administered and distributions considered.

Process & Timing

1. Who files: A trust beneficiary. Where: Clerk of Superior Court (Estates/Trusts), in the county where the trust is administered or where a beneficiary resides, unless the trust says otherwise. What: A verified petition to open a trust proceeding asking to (a) ascertain the trustee, (b) compel the trustee to provide the trust document and an accounting, and (c) appoint a successor trustee if there is a vacancy; include the Estate Summons for Trust Proceeding (AOC‑E‑150) for service. When: File as soon as practicable; no fixed deadline to request information, but delays can complicate matters.
2. The Clerk issues the summons; respondents typically have 10 days to answer. A hearing is scheduled; counties vary on timing. Be prepared with the decedent’s name, date of death, the will’s case number (for the pour‑over reference), and any trust details you have.
3. If granted, the Clerk may order the trustee to provide the trust and an accounting, and, if no trustee is serving, appoint a successor trustee. The successor trustee then marshals trust assets, provides reports, and considers distributions per the trust terms.

Exceptions & Pitfalls

• Trust administered outside North Carolina: If the trust’s principal place of administration is in another state and a party objects, a North Carolina Clerk may decline to proceed; you may need to file where the trust is administered.
• Not a “qualified beneficiary”: Information rights attach to qualified beneficiaries; if your status is uncertain, ask the Clerk to determine beneficiary status and direct appropriate disclosures.
• “No accounting” clauses: Even if the trust limits reporting, courts can require information needed to protect beneficiaries and enforce duties.
• Executor vs. trustee: Do not rely on the probate file for trust records; the executor typically has no authority over trust assets.
• Service and notice: Use proper service (Rule 4) for trust proceedings; improper service can delay relief.

Talk to a Estate Planning Attorney

If you’re dealing with a pour-over will and cannot access trust information or distributions, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.