What steps are needed to transfer overseas real estate into a trust? – North Carolina

Short Answer

Under North Carolina law, real estate is transferred into a trust by conveying title to the trustee and properly recording the transfer where the property sits. For overseas property, the deed or transfer instrument must meet the foreign country’s rules, and be recorded in that country’s land registry. The trustee should provide a certification of trust, complete any required notarization, apostille, and translation, and obtain any tax clearances before filing. North Carolina property is funded by deed to the trustee recorded with the county Register of Deeds.

Understanding the Problem

In North Carolina estate planning, can a married couple place overseas real estate into a new revocable trust so assets pass smoothly to a minor child? The specific decision point is whether and how a trustee can take title to real estate located outside the United States, and what office handles the recording. The timing question is when to complete the transfer in relation to creating the revocable trust.

Apply the Law

North Carolina trusts can hold real property, but the law of the place where the real estate is located (the “situs”) controls how title transfers and how the deed is recorded. The trustee must have authority to acquire and hold real estate, must be able to show proof of the trust’s existence and the trustee’s powers, and must comply with the recording and tax rules of the foreign country. For North Carolina parcels, a deed conveying title to the trustee must be recorded with the county Register of Deeds to protect the transfer.

Key Requirements

• Trustee authority and proof: Ensure the trustee has power to acquire and hold real estate and provide a certification of trust instead of the full trust when third parties ask for proof.
• Follow the law of the situs: Use the deed or transfer form required by the country where the property sits, meet its notarization, witness, tax, and registry rules, and record there.
• Execution formalities: If spouses co-own or local law requires marital consent, both spouses (or their properly authorized agents) sign the transfer to the trustee.
• Cross-border documentation: Prepare sworn translations if required and obtain apostilles for notarized signatures and trust certifications that will be used overseas.
• Recordation and follow-up: Record in the foreign land registry; for North Carolina parcels, record the deed to the trustee with the county Register of Deeds. Update insurance, property rolls, and trust schedules.

What the Statutes Say

• N.C. Gen. Stat. § 36C-10-1013 (Certification of trust) – Allows a trustee to provide a certification summarizing trust facts to third parties.
• N.C. Gen. Stat. § 36C-8-816 (Specific powers of trustee) – Lists trustee powers, including acquiring, holding, and conveying property.
• N.C. Gen. Stat. § 36C-8-809 (Control and protect trust property) – Requires a trustee to take reasonable steps to take control of and protect trust assets.
• N.C. Gen. Stat. § 47-18 (Recording requirements) – North Carolina’s recording rule; deeds must be recorded in the county where real property is located.

Analysis

Apply the Rule to the Facts: The couple’s revocable trust can hold real estate, but the overseas parcel must be transferred under that country’s deed, tax, and registry rules. The trustee should present a certification of trust and execute the foreign-approved deed to place title in the trustee, completing any apostille and translation requirements before recording abroad. For the North Carolina home and business real estate, the couple should sign and record deeds to the trustee with the county Register of Deeds so the trust actually owns those parcels.

Process & Timing

1. Who files: Current owners and the trustee. Where: For overseas property, the foreign country’s land registry; for North Carolina parcels, the county Register of Deeds. What: A deed or transfer instrument acceptable in the property’s country naming the trustee (supported by a certification of trust); for NC parcels, a deed to “[Trustee Name], Trustee of the [Revocable Trust dated ____]” plus a certification of trust if requested. When: As soon as the trust is executed; earlier funding avoids later ancillary proceedings.
2. Obtain any required notarizations, sworn translations, tax clearances, and apostilles for documents executed in North Carolina that will be used overseas; foreign counsel lodges the deed for registration. Timeframes vary by country and local registry workload.
3. After registration, update insurance, utilities, and property tax accounts to the trustee; keep recorded copies and update the trust’s asset schedule.

Exceptions & Pitfalls

• Some civil-law countries do not recognize common-law trusts; consider a local holding entity or other structure on advice of foreign counsel.
• Forced heirship or matrimonial property rules abroad can limit transfers to a trust; address spousal consent and children’s rights under local law.
• Mortgages, condominium associations, or government approvals may require lender or agency consent before retitling.
• Documents rejected for improper notarization, missing apostille, or translation errors delay recording; verify formalities in advance.
• Leaving foreign real estate outside the trust can require ancillary probate in that country despite a North Carolina pour-over will.

Talk to a Estate Planning Attorney

If you’re dealing with funding a revocable trust with overseas real estate and related North Carolina properties, 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.