How do we change a trustee who has passed away—can it be done with a simple amendment? – North Carolina

Short Answer

Often, yes—if the trust is revocable and the trust’s amendment clause allows it, the trustee lineup can usually be updated with a written trust amendment signed with the required formalities. But a “simple amendment” is not always enough in practice, because banks, title companies, and other institutions often require clear successor-trustee paperwork and proof of the prior trustee’s death. If the trust is irrevocable or the trust document does not provide a workable successor-trustee process, a court proceeding may be needed to fill the vacancy.

Understanding the Problem

Under North Carolina estate planning law, when a named trustee has died, the key question is whether the trust document still provides a clear path for who can act next as trustee and how that person takes over. Can the trustmaker change the successor trustee by signing an amendment, or must a court appoint a new trustee because the trust terms do not allow an easy transition? The answer usually turns on whether the trust is still revocable and what the trust’s own amendment and successor-trustee provisions require.

Apply the Law

In North Carolina, the trust document controls first. If the trust is revocable, the trustmaker typically can update administrative terms (including who serves as successor trustee) by following the amendment method stated in the trust. If there is a vacancy and the trust does not provide a workable way to fill it, North Carolina courts have authority to supply the vacancy and appoint a successor trustee. In practice, the successor trustee also needs a clean “paper trail” to prove authority to financial institutions and to handle real estate and beneficiary distributions.

Key Requirements

Confirm the trust can be amended: The trust must be revocable (or otherwise amendable) and the amendment must follow the trust’s stated method (often a signed writing, sometimes with notarization and witnesses).
Name the right person in the right role: The amendment should clearly identify the new successor trustee (and usually one or two backups), and it should state when that person serves (for example, at incapacity or death of the current trustee).
Create usable proof of authority: Even if the amendment is valid, the successor trustee typically must be able to show proof of the prior trustee’s death and proof that the successor has authority under the trust’s terms.

What the Statutes Say

N.C. Gen. Stat. § 23-22 (Court may remove trustee and appoint successor) – Allows the court to fill a trustee vacancy when a trustee dies, resigns, is removed, or is otherwise unable to serve.
N.C. Gen. Stat. § 41-3 (Survivorship among trustees) – In certain trusts with co-trustees, a surviving trustee may continue to act when another trustee dies or cannot serve.

Analysis

Apply the Rule to the Facts: Here, the plan includes an existing trust and a named trustee has died. If the trust is revocable (common for married couples’ estate plans) and it contains an amendment clause, the trustee change can usually be handled by a written amendment that updates the successor trustee provisions. Because the plan is also being updated for a move to North Carolina and for family changes (a child’s marriage and an expected grandchild), many families choose to restate the trust or do a coordinated set of updates so the trustee change, distribution terms, and administrative provisions all work together under North Carolina practice.

Process & Timing

Who signs: The trustmaker(s) if the trust is revocable. Where: Typically signed outside of court; if a court appointment is needed, it is handled through the Clerk of Superior Court in the county with the appropriate connection to the trust or property. What: A written trust amendment (or, in many cases, a full trust restatement) that updates the successor trustee provisions and confirms the order of succession. When: As soon as the trustee death is discovered—especially before the successor trustee needs to deal with banks, real estate, or beneficiary requests.
Confirm the transition paperwork: The successor trustee gathers the trust (and amendment/restatement), proof of the prior trustee’s death, and any acceptance/acknowledgment documents the trust requires. Institutions may also request a certification/summary of trust terms to confirm who can act.
Implement the update across the whole plan: After the trustee change, the will, powers of attorney, and beneficiary designations should be reviewed so the updated trustee lineup and the updated family provisions do not conflict with each other.

Exceptions & Pitfalls

The trust may be irrevocable: If the trust cannot be amended, changing trustees may require following a trustee-replacement clause in the trust (if any) or asking the court to fill the vacancy under North Carolina law.
“Simple amendment” that does not follow the trust’s formalities: Some trusts require specific signing steps (for example, notarization or witnesses). An amendment that ignores the trust’s own method can create challenges later.
Mismatch between the trust and the will: If the will “pours over” into the trust, the trustee provisions and trust identification should stay consistent to avoid confusion during administration.
Institution pushback: Even with a valid amendment, banks and title companies may require additional documentation to recognize a successor trustee. Planning for that paperwork up front reduces delays.
Out-of-state drafting assumptions: A trust drafted for another jurisdiction may use trustee succession language or administrative provisions that do not fit North Carolina practice, which can complicate a transition after a trustee’s death.

Conclusion

In North Carolina, changing a trustee who has died is often handled by a written trust amendment if the trust is revocable and the amendment follows the trust’s stated method. If the trust is not amendable or the trust does not provide a workable way to fill the vacancy, a court can appoint a successor trustee. The practical next step is to review the trust’s amendment and successor-trustee clauses and then sign a properly executed amendment (or restatement) naming the new successor trustee.

Talk to a Estate Planning Attorney

If you’re dealing with a trustee who has passed away and need to update a trust after moving to North Carolina, 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.