Feb22026
Probate Q&A Series

How do we figure out what needs to go through probate when there’s a will and an irrevocable trust? – North Carolina

Short Answer

In North Carolina, an asset usually goes through probate only if it was owned in the decedent’s individual name at death and has no built-in “transfer on death” feature. Assets titled in the name of an irrevocable trust generally do not go through the probate estate, even if there is a will. The practical way to sort this out is to build a complete asset list, then match each item to its title/beneficiary designation to decide whether the personal representative (probate) or the trustee (trust administration) handles it.

Understanding the Problem

When a North Carolina resident dies with both a last will and testament and an irrevocable trust, the key question is: which assets are controlled by the will (and therefore handled through the Clerk of Superior Court estate file) versus which assets are controlled by the trust (and therefore handled by the trustee outside the probate estate). The decision usually turns on how each asset is titled and whether it has a named beneficiary or survivorship feature. This issue often comes up when multiple adult children are named as co-personal representatives and need a clear starting point for dividing responsibilities and avoiding missed steps.

Apply the Law

North Carolina probate is the court-supervised process for administering assets that are part of the decedent’s estate. The Clerk of Superior Court has original jurisdiction over probate and estate administration. A will, once properly probated, is the document that transfers probate property to the people named in it, but it does not automatically pull trust-owned property back into probate. In practice, the personal representative focuses on assets titled in the decedent’s individual name, while the trustee focuses on assets titled in the trust’s name and distributes them under the trust terms.

Key Requirements

  • Identify ownership at death: Determine whether each asset was titled in the decedent’s individual name, jointly with survivorship, or in the name of the trust.
  • Check beneficiary and survivorship designations: Retirement accounts, life insurance, and many bank accounts transfer by beneficiary designation or survivorship and usually do not become probate assets.
  • Confirm the correct decision-maker: Probate assets are handled by the personal representative through the estate; trust assets are handled by the trustee under the trust instrument (often with different reporting and distribution steps).

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the decedent left both a will and a trust prepared years ago, and multiple adult children are serving as co-personal representatives. The first step is to inventory everything the decedent owned or controlled, then separate items titled in the decedent’s individual name (likely probate) from items titled in the trust’s name (likely trust administration) and items that pass by beneficiary designation or survivorship (often non-probate). If an asset was supposed to be in the trust but was never retitled into the trust, it commonly remains a probate asset and may need to be handled through the estate (sometimes with the will directing it to the trust).

Process & Timing

  1. Who files: the nominated personal representative(s) named in the will (or another qualified person if they cannot serve). Where: the Clerk of Superior Court (Estates) in the county where the decedent lived at death. What: application to probate the will and qualify the personal representative, followed by an estate inventory and accountings as required by the Clerk. When: as soon as practical after death, especially if bills must be paid, assets must be accessed, or real property needs to be sold or transferred.
  2. Build a “title-based” asset map: gather deeds, vehicle titles, bank/brokerage statements, retirement account statements, and insurance policies; then label each item as (a) “in decedent’s name alone,” (b) “joint with survivorship,” (c) “payable/transfer on death,” or (d) “titled to the trust.” This is also the stage where it helps to pull records of prior transfers where the decedent retained some interest, because those transfers can affect administration decisions even if they are not probate assets.
  3. Administer in two lanes: the personal representative collects and manages probate assets, pays valid estate expenses/claims as required, and ultimately distributes probate property under the will (often including a “pour-over” transfer to a trust if the will is written that way). Separately, the trustee follows the trust’s instructions for trust-owned assets, including any required notices, recordkeeping, and distributions to beneficiaries.

Exceptions & Pitfalls

  • “It’s in the trust” is often assumed, not verified: many trusts are signed, but assets were never retitled into the trust. Those assets commonly remain probate assets even if the trust exists.
  • Joint ownership and beneficiary designations override the will: an account with survivorship or a retirement account with a named beneficiary typically transfers outside the will, even if the will says “everything goes to the trust.”
  • Real estate requires extra care: deeds and county recording matter. If real property is involved, confirm how title is held and whether any probate filings/recordings are needed to protect the chain of title.
  • Co-personal representative coordination: when multiple people serve together, delays and inconsistent communication can create missed deadlines, duplicate work, or disputes over who can sign. A clear division of tasks (probate lane vs. trust lane) and a shared document list helps.
  • Incomplete inventories: if additional assets are discovered later, the estate paperwork may need to be updated. Keeping a running asset list and documenting valuations reduces conflict and audit risk.

Conclusion

In North Carolina, the clean way to decide what “goes through probate” is to follow the title: assets owned in the decedent’s individual name at death typically belong in the probate estate, while assets titled in an irrevocable trust are usually administered by the trustee outside probate. The Clerk of Superior Court oversees the probate estate, and the will must be probated to transfer probate property. The next step is to file to probate the will with the Clerk of Superior Court in the decedent’s county and then create an asset-by-asset title and beneficiary map.

Talk to a Probate Attorney

If there’s a will and an irrevocable trust and it is unclear which assets belong in the estate versus the trust, our firm has experienced attorneys who can help sort the titles, identify the correct decision-maker for each asset, and keep the administration on track. 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.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.