If some assets stay outside the trust, how does a pour-over will work and what would still have to go through probate? – North Carolina

Short Answer

In North Carolina, a pour-over will is a backup will that directs any probate assets still titled in an individual’s name at death to the trustee of a (usually revocable) trust. It does not avoid probate for those “left-out” assets; it simply sends them into the trust after the estate is opened and the personal representative has authority to transfer them. Assets that pass by beneficiary designation or by survivorship generally do not “pour over,” but they can still affect the overall plan if the designations do not match the trust.

Understanding the Problem

In North Carolina estate planning, the key question is: if a person signs a revocable trust but does not retitle every asset into the trust during life, can a pour-over will move what is left into the trust at death, and what assets will still require a probate estate to be opened with the Clerk of Superior Court. The decision point is whether an asset is still owned in the decedent’s individual name at death (so it follows the will and probate rules) or whether it transfers by a non-probate method (so the will does not control it).

Apply the Law

North Carolina law allows a will to leave (devise) property to the trustee of an existing trust or to a trust identified in the will with written terms executed before or at the same time as the will. When the will directs assets to the trustee, those assets become part of the trust and are administered under the trust’s terms, rather than under a separate “testamentary trust” created by the will. Even so, if an asset is in the decedent’s name at death and does not have a built-in non-probate transfer, a personal representative must typically collect it through probate and then transfer it to the trust as the pour-over will directs.

Key Requirements

A valid trust is identified: The pour-over clause must clearly point to the trust that will receive the probate assets (often a revocable trust signed during life).
The asset is a probate asset: The property must be owned in the decedent’s individual name at death and not already set up to transfer by contract or survivorship.
A personal representative has authority: The estate must be administered through the Clerk of Superior Court so the personal representative can collect, pay estate costs and valid claims, and then transfer remaining probate assets to the trustee.

What the Statutes Say

N.C. Gen. Stat. § 31-47 (Testamentary additions to trusts) – Authorizes a will to leave property to the trustee of a trust and provides that the property becomes part of the trust and is handled under the trust terms.
N.C. Gen. Stat. § 41-48 (Nontestamentary transfer on death) – Explains that TOD registrations transfer by contract and are not “testamentary,” meaning the will generally does not control that transfer.

Analysis

Apply the Rule to the Facts: The plan described involves a revocable trust intended to hold real estate and a pour-over will to catch anything not transferred to the trust during life. Under North Carolina law, the pour-over will can direct any remaining probate property (for example, a bank account left solely in an individual name with no payable-on-death beneficiary) to the trustee, where it will be administered under the trust’s distribution instructions. However, any asset that already transfers outside probate (for example, life insurance payable to a named beneficiary) will not be redirected by the pour-over will and must be aligned with the trust plan through beneficiary designations and titling.

Process & Timing

Who files: The nominated personal representative (executor) in the will. Where: The Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: An application to qualify as personal representative and to probate the will (forms and titles can vary by county). When: As soon as practical after death, especially if bills must be paid, real estate must be managed, or accounts are frozen.
Collect and control probate assets: After qualification, the personal representative gathers property titled in the decedent’s individual name, confirms which assets are controlled by beneficiary designation/survivorship, and addresses estate expenses and valid creditor claims before making distributions.
Transfer (“pour over”) to the trust: The personal representative then transfers the remaining probate assets to the trustee under the will’s pour-over clause, and the trustee administers those assets under the trust terms (for example, continuing management of rental property, or distributing to beneficiaries as the trust directs).

Exceptions & Pitfalls

Non-probate assets do not “pour over”: Jointly owned property with survivorship rights, beneficiary-designated accounts, and many insurance proceeds typically transfer outside the will, so mismatched beneficiary designations can defeat the trust plan.
Unfunded or revoked trust issues: If the trust is revoked or terminated before death and the will does not provide an alternate plan, the pour-over gift can fail, which may push assets into other will provisions or intestacy depending on the document.
Real estate titling gaps: If a deed was never recorded transferring a residence or rental property into the trust, that property may require probate administration (and possibly additional paperwork) before it can be moved into the trust.
Accounts and vehicles left in an individual name: Items like bank accounts, vehicles, boats, and trailers often create practical probate work if they are not retitled or do not have a valid transfer-on-death or beneficiary setup.
Administration still happens even with a trust: A pour-over will does not eliminate the personal representative’s job for probate assets; it mainly changes the “end destination” from individual beneficiaries to the trust.

Conclusion

In North Carolina, a pour-over will works as a safety net: it leaves any assets still in the decedent’s individual name at death to the trustee of the identified trust, and those assets then follow the trust’s instructions. But the estate usually still must go through probate for those assets so the personal representative can collect them and transfer them to the trust. The practical next step is to inventory every asset and retitle or update beneficiary designations so only true “leftovers” require probate.

Talk to a Estate Planning Attorney

If a revocable trust is part of the plan but some assets may stay outside the trust, a pour-over will and proper beneficiary designations can keep the plan consistent and reduce avoidable probate steps. Our firm has experienced attorneys who can help clarify what should be retitled, what will transfer outside probate, and what timelines apply. 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.