Jan282026
Estate Planning Q&A Series

Should my spouse and I use a joint trust, separate wills, or a different plan now that our children are adults? – North Carolina

Short Answer

In North Carolina, many married couples with adult children can use either (1) a joint revocable trust, (2) two separate revocable trusts, or (3) separate wills (often with “pour-over” wills) depending on how the assets are titled, how much flexibility is needed after the first death, and whether each spouse wants separate control over “their side” of the plan.

If some assets are already titled in a trust, the practical question is usually not “trust vs. will,” but whether the current trust terms still match the goals and whether the plan is properly coordinated with beneficiary designations and updated powers of attorney.

Understanding the Problem

In North Carolina estate planning for a married couple with adult children, the decision is often whether to keep and update a joint trust, switch to two separate plans (separate trusts and/or separate wills), or simplify the plan now that minor-child planning is no longer needed. The key issue is how to keep the surviving spouse financially protected while still controlling what happens at the second death, especially when some assets are already titled in a trust and beneficiary designations and powers of attorney may also need updates.

Apply the Law

North Carolina generally allows married couples to use wills and revocable trusts to direct where property goes at death. A trust-based plan can avoid probate for assets titled in the trust, while a will-based plan typically uses the probate process through the Clerk of Superior Court. Regardless of the structure, the plan must also account for North Carolina’s spousal rights (including elective share rules) and must be coordinated with how assets are titled and how beneficiary designations are set.

Key Requirements

  • Clear “who gets what” at the first and second death: The documents should say what happens when the first spouse dies and what happens when the second spouse dies, including whether the surviving spouse can change the plan later.
  • Correct ownership and beneficiary setup: Trusts only control assets titled in the trust; beneficiary-designated assets pass by the beneficiary form; and individually owned assets may require probate unless they have a payable-on-death/transfer-on-death feature or other non-probate transfer.
  • Spousal-rights awareness and coordination: Even a well-drafted plan can be disrupted if it unintentionally conflicts with North Carolina’s protections for surviving spouses or if real estate transfers fail to address spousal interests.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, some assets (including an investment or money market account, and possibly other property) are already titled in a trust, and the main decision is whether the current trust still matches the couple’s goals now that the children are adults. If the trust terms still fit, the most efficient path is often to update the trust (if needed), confirm the trust is properly funded, and then align beneficiary designations and powers of attorney so the plan works the same way across all assets. If the trust terms no longer fit (for example, if the plan is too rigid for the surviving spouse or does not clearly address what happens at the second death), then replacing the trust or moving to separate plans may make more sense than “unfunding” the trust without a coordinated replacement.

How the choice usually breaks down (joint trust vs. separate trusts vs. wills)

  • Joint revocable trust (one trust for both spouses): Often works well when the couple’s goals are aligned, most assets are shared, and the plan is “everything to spouse, then to the adult children.” It can also reduce probate for assets titled in the trust. A common planning focus is how control changes after the first death—some joint trusts become partly irrevocable at that point, which can protect the children’s eventual inheritance but can also limit flexibility for the survivor.
  • Two separate revocable trusts (one per spouse): Often fits better when each spouse wants clearer separation of “my assets vs. your assets,” when there are different beneficiaries, or when the couple wants more defined guardrails after the first death. North Carolina also has specific rules about conveying tenants-by-the-entirety real estate into a joint trust or into two separate trusts, which should be handled carefully. See N.C. Gen. Stat. § 41-65.
  • Separate wills (with or without a trust): Often appropriate when the estate is simple, assets already have solid beneficiary designations, and probate-avoidance is not a priority. Many couples still use a trust “on purpose” even with adult children because it can provide smoother administration, privacy, and continuity if incapacity occurs. If a trust is used, each spouse typically also signs a “pour-over” will to catch assets left outside the trust and direct them into it at death.

Process & Timing

  1. Who updates the plan: Each spouse signs updated documents. Where: The planning is done privately, but probate matters (if any) are handled through the Clerk of Superior Court in the county where the estate is administered. What: Updated trust (amendment or restatement, or a new trust), updated wills (often including pour-over wills if a trust is used), updated durable financial powers of attorney, updated health care powers of attorney, and updated beneficiary designations for accounts that pass by contract. When: Before a health event or incapacity; timing matters because banks and institutions may reject unclear or outdated documents.
  2. Retitle and confirm “funding”: If the plan uses a trust, the next step is confirming which assets are titled in the trust and which are not. For real estate and other titled property, deeds and account ownership must match the plan. If an agent may need to handle real estate later, North Carolina requires recording the power of attorney (or a certified copy) before an agent transfers real property. See N.C. Gen. Stat. § 47-28.
  3. Coordinate beneficiary designations and decision-makers: Retirement accounts, life insurance, and many investment accounts pass by beneficiary designation, not by the trust or will. The plan should also name the right people to act during incapacity (financial agent under a power of attorney and health care agent under a health care power of attorney). North Carolina sets specific execution requirements for a health care power of attorney. See N.C. Gen. Stat. § 32A-16.

Exceptions & Pitfalls

  • “Unfunding” a trust without a replacement plan: Removing assets from a trust can unintentionally increase probate exposure or create mismatches between the trust, the will, and beneficiary forms.
  • Beneficiary designations that override the documents: An investment or money market account with a payable-on-death beneficiary will usually pass to that beneficiary even if the trust or will says something different. This is a common reason plans fail in practice.
  • Real estate and married-couple title issues: If real property was held as tenants by the entirety, moving it into a trust changes how it is held and can affect creditor protection and administration. North Carolina addresses this directly for transfers to joint or separate trusts. See N.C. Gen. Stat. § 41-65.
  • Spousal-rights surprises: A plan that attempts to disinherit a spouse or heavily restrict the survivor can trigger elective share issues. North Carolina’s elective share is a statutory right with a defined procedure and deadline. See N.C. Gen. Stat. § 30-3.1 and § 30-3.4.
  • Outdated incapacity documents: Even if the estate plan is solid, outdated powers of attorney can cause delays when managing accounts or signing real estate documents. For real property, recording rules can matter at the moment action is needed. See N.C. Gen. Stat. § 47-28.

For couples who want the home and other assets to pass cleanly to adult children, it often helps to review how the plan handles the residence and whether the trust or will instructions match the title and the intended outcome. Related guidance may be helpful in updating an estate plan so a home goes to adult children.

Conclusion

In North Carolina, a married couple with adult children can often use a joint trust, two separate trusts, or separate wills, but the best choice depends on how assets are titled, how much flexibility the surviving spouse should have, and whether the plan is properly coordinated with beneficiary designations and powers of attorney. If assets are already in a trust, the next step is usually to review and update the trust terms and then align account titles and beneficiary forms so the plan works as written. If spousal-rights planning is a concern, act promptly because elective share deadlines can be short after an estate opens.

Talk to a Estate Planning Attorney

If you’re dealing with whether to keep a joint trust, switch to separate documents, or simplify the plan now that the children are adults, our firm has experienced attorneys who can help clarify options, update documents, and coordinate titles and beneficiary designations. Call us today at [CONTACT NUMBER].

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: Estate Planning 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.