Can beneficiaries choose a different trustee for the trust after the testator’s death? – North Carolina

Short Answer

Sometimes. In North Carolina, if a trust has no trustee after the testator’s death and the trust document does not name a successor or a method to name one, the qualified beneficiaries can fill the vacancy by unanimously agreeing on a new trustee. If they cannot agree (or if the trust’s terms require court involvement), the Clerk of Superior Court can appoint a trustee.

Understanding the Problem

In North Carolina probate, a common question is whether beneficiaries can choose a different trustee after the testator’s death when a will creates (or funds) a trust but no trustee is serving. The key decision point is whether there is a “vacancy” in the trusteeship and, if so, whether the trust’s terms allow the beneficiaries to fill that vacancy by agreement or whether the Clerk of Superior Court must appoint a trustee. The issue often comes up when an account names a trust as beneficiary but no trustee has been appointed to receive and manage the funds.

Apply the Law

North Carolina follows the North Carolina Uniform Trust Code. When a trust has no acting trustee, state law treats that as a vacancy in the trusteeship. If the trust document does not provide a successor trustee (or a method for naming one), the default rule allows the qualified beneficiaries to appoint a successor trustee by unanimous agreement. If unanimous agreement is not possible, the Clerk of Superior Court (the court that typically handles trust administration matters at the county level) can appoint a trustee, and the Clerk’s focus is on carrying out the settlor’s intent and ensuring proper administration.

Key Requirements

A vacancy exists: There must be no acting trustee (for example, no trustee was named, the named trustee cannot be identified, or the position is otherwise unfilled).
The trust document does not already control the choice: If the will/trust names a trustee, names a successor, or sets a method to select a trustee, that direction usually controls.
Unanimous agreement of qualified beneficiaries (or court appointment): If the document is silent, all qualified beneficiaries must agree on the new trustee; otherwise, a petition to the Clerk of Superior Court is usually needed.

What the Statutes Say

N.C. Gen. Stat. § 36C-7-704 (Vacancy in trusteeship; appointment of successor) – Sets the order of priority for filling a trustee vacancy, including unanimous appointment by qualified beneficiaries if the trust terms are silent.
N.C. Gen. Stat. § 36C-7-706 (Removal of trustee) – Allows removal of a trustee in certain situations (a different issue from appointing a trustee when none exists).
N.C. Gen. Stat. § 31-47 (Testamentary additions to trusts) – Addresses gifts by will to a trustee of an existing or identified trust (often relevant when a will “pours over” assets to a trust).

Analysis

Apply the Rule to the Facts: The will created a trust that is the beneficiary of an account, but no trustee has been appointed, which points to a vacancy in the trusteeship. Under North Carolina’s default rule, the qualified beneficiaries can select a trustee by unanimous agreement if the trust instrument does not name a successor or a selection method. If unanimous agreement cannot be reached (or if minor/incapacitated beneficiaries require representation for consent), then a petition to the Clerk of Superior Court may be needed so the Clerk can appoint a trustee to administer and receive the trust assets.

Process & Timing

Who initiates: Typically the qualified beneficiaries (or another interested person) if a trustee must be appointed, or the beneficiaries jointly if they can unanimously agree. Where: Clerk of Superior Court in the county with appropriate trust/probate filing. What: A petition or filing requesting appointment of a successor trustee (county procedures vary; some filings use an estates action cover sheet for trust proceedings). When: As soon as it becomes clear there is no acting trustee and trust assets need to be collected or managed.
Notice and consent: If appointment happens by beneficiary agreement, unanimous consent should be documented. If any qualified beneficiary is a minor or lacks capacity, a legally recognized representative may need to act for that beneficiary so the consent is effective.
Acceptance and retitling: Once a trustee is appointed (by agreement or by the Clerk), the trustee typically signs an acceptance and then works with financial institutions to retitle or collect trust assets in the trustee’s name as trustee.

Exceptions & Pitfalls

“Choosing a different trustee” is not the same as “removing” a trustee: If a trustee is already serving, beneficiaries generally cannot simply swap trustees without following the trust’s terms or the statutory removal process.
Unanimous means unanimous: If even one qualified beneficiary does not agree (or cannot effectively consent), the beneficiaries cannot appoint the trustee by agreement and a Clerk appointment may be required.
Minor or incapacitated beneficiaries: Consent may need to come through representation rules; ignoring this can derail an appointment and delay access to trust accounts.
Administrative delays can affect probate reporting: Waiting on out-of-state confirmations or payoff figures does not usually stop North Carolina inventory/account deadlines; late filings can trigger Clerk notices and possible sanctions.

Conclusion

In North Carolina, beneficiaries can sometimes choose a different trustee after the testator’s death, but only in specific circumstances. If there is no acting trustee and the trust document does not name a successor or a method to choose one, the qualified beneficiaries may appoint a trustee by unanimous agreement; otherwise, the Clerk of Superior Court can appoint a trustee. The practical next step is to file a petition with the Clerk of Superior Court to appoint a trustee if unanimous beneficiary appointment is not available.

Talk to a Probate Attorney

If a will-created trust is named as a beneficiary but no trustee is in place to receive or manage the funds, our firm has experienced attorneys who can help explain the appointment options and the related probate filing 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.