Do my spouse and I both need to sign new documents if we’re only changing who the backup trustee is? – North Carolina

Short Answer

Usually, yes—each spouse must sign the document that changes that spouse’s own estate planning document. In North Carolina, changing a successor (backup) trustee is typically done by a written trust amendment (or trust restatement), and the person (or people) who created that trust must sign as the “settlor(s)” under the trust’s amendment rules. If the change is being made in a will (instead of the trust), the update generally must be executed with will formalities, meaning signatures and witnesses.

Understanding the Problem

In North Carolina estate planning, the key decision is whether the “backup trustee” is named in one joint trust, in two separate trusts, or only in wills that pour assets into a trust. The question is whether both spouses must sign new documents when the only intended change is who serves as successor trustee if the current trustee cannot serve. Timing matters because the right signature and signing method depends on which document is being changed and who has the power to amend it.

Apply the Law

Under North Carolina law, the signature requirement depends on the instrument being changed. If the successor trustee is named in a revocable trust, the trust’s own amendment provision usually controls who must sign and how the amendment must be delivered or recorded. If the successor trustee is named in a will, the change is typically made by a new will or codicil, and North Carolina requires the testator’s signature and at least two competent witnesses for an attested will. The main forum involved later is the Clerk of Superior Court (estate administration and, if needed, trustee-related proceedings), but the signing step happens privately during planning.

Key Requirements

Identify the document that actually appoints the successor trustee: The trust instrument controls trustee succession for the trust; a will controls only what it says and may “pour over” assets into a trust.
Follow the correct execution rules for that document: Trust amendments follow the trust’s amendment clause; will changes generally require will execution formalities (signature plus witnesses).
Use the correct signer(s): The person who created the trust (or each co-creator) signs the trust amendment; each spouse signs changes to that spouse’s own will.

What the Statutes Say

N.C. Gen. Stat. § 31-3.3 (Attested written will) – Sets the core signing and witness requirements for an attested will in North Carolina.
N.C. Gen. Stat. § 31-47 (Testamentary additions to trusts) – Allows a will to leave assets to a trust and recognizes that the trust can be amended without using will formalities.

Analysis

Apply the Rule to the Facts: The existing plan includes wills and a trust, and the intended change is the successor trustee. If the trust is a joint trust created by both spouses, the trust’s amendment clause commonly requires both spouses (as co-settlors) to sign an amendment naming the new successor trustee. If each spouse has a separate trust (or separate subtrusts with separate amendment powers), the spouse who controls the relevant trust typically signs the amendment for that trust, and the other spouse may not need to sign that particular amendment.

Process & Timing

Who files: No one files anything with a court just to change a successor trustee in a living trust. Where: The amendment is signed as part of the estate planning file (and later used when needed). What: A “Trust Amendment” or “Trust Restatement” that updates the successor trustee section; sometimes a separate “Acceptance” is prepared for the new trustee to sign. When: Before incapacity or death—because once a person loses capacity, changing trustee provisions can become much harder and may require court involvement.
Coordinate the related documents: If the wills reference the trust (common with pour-over wills), the plan should be checked so the trustee names and backup order match across documents. If a will itself names a trustee for a testamentary trust, the update usually requires a new will or codicil executed with witnesses.
Confirm practical handoff details: After signing, keep the amendment with the original trust, update any successor trustee contact information list, and consider whether financial institutions or asset titling instructions should be updated so the successor trustee can step in smoothly later.

Exceptions & Pitfalls

The trust’s amendment clause may require specific steps: Some trusts require notarization, delivery to a trustee, or a particular format. Skipping those steps can create disputes later about whether the change was valid.
Mixing up “executor” and “trustee” roles: A will appoints an executor (personal representative). A trust appoints a trustee. Changing one does not automatically change the other.
Using a will to “override” a trust appointment: If the trust names the successor trustee, a later will provision may not control the trust’s internal trustee succession. The cleaner approach is usually to amend the trust itself.
Not updating the backup chain: Naming one new successor trustee without naming alternates can create a gap if that person later cannot serve.

Conclusion

In North Carolina, whether both spouses must sign depends on which document appoints the backup trustee and who has the power to amend it. If the successor trustee is named in a joint revocable trust, both spouses commonly must sign a written trust amendment that follows the trust’s amendment clause. If the change is in a will, the spouse whose will is being changed must sign a new will or codicil with two witnesses under North Carolina’s will execution rules. The next step is to review the trust’s amendment provision and sign the amendment while capacity is clear.

Talk to a Estate Planning Attorney

If changing a backup trustee is the only update planned now—but more changes may come later—an estate planning review can help choose the cleanest amendment approach and keep the will-and-trust documents consistent. 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.