What happens if we don’t update the trustee list and the named trustees can’t serve later? – North Carolina

Short Answer

In North Carolina, if a trust (including a trust created under a will) does not have a trustee who can serve when the time comes, the trust usually does not “fail” just because the named trustees are unavailable. Instead, someone typically has to step in and ask the court to appoint a replacement trustee, which can slow down administration and add cost and paperwork. Updating the trustee list now is often the simplest way to avoid a future court appointment process.

Understanding the Problem

In North Carolina estate planning, the decision point is whether the trust documents still name at least one person or institution who can actually serve as trustee when the trust needs to be managed. If the named trustee and successor trustees later cannot serve (because of death, incapacity, relocation, refusal, or conflict), the trust still needs a legally authorized trustee to collect assets, pay expenses, manage investments, and make distributions. The practical question becomes whether the documents provide a workable “next trustee” path or whether a court appointment will be needed to fill the vacancy.

Apply the Law

North Carolina law allows a court to fill a trustee vacancy when a trustee dies, resigns, is removed, or otherwise cannot serve. In many situations, the Clerk of Superior Court is the judicial officer involved in trust and estate administration, and a special proceeding may be required to appoint a successor trustee when there is no functioning trustee available. The key takeaway is that an outdated trustee list often turns a private administration task into a court-supervised appointment process.

Key Requirements

A real trustee vacancy exists: The currently named trustee(s) cannot serve due to death, resignation, incapacity, refusal, or another disability that prevents acting.
No effective successor is available under the documents: The trust’s successor list is exhausted, unclear, or names people who also cannot serve.
A proper appointment process is used: An interested person asks the appropriate North Carolina court to appoint a suitable successor trustee so the trust can be administered according to its terms.

What the Statutes Say

N.C. Gen. Stat. § 23-22 (Court may remove trustee and appoint successor) – authorizes the court to supply a trustee vacancy when a trustee dies, resigns, is removed, or has another disability.
N.C. Gen. Stat. § 45-9 (Clerk appoints successor to incompetent trustee) – gives the Clerk of Superior Court authority, in specified situations and with interested persons made parties, to appoint a replacement trustee when the named trustee cannot execute the trust.

Analysis

Apply the Rule to the Facts: Here, [CLIENT] and [SPOUSE] have older wills that include a trust and want to change the successor trustee now, with the possibility of future changes. If the documents are not updated and the named trustees later cannot serve, the trust may be left without a functioning fiduciary at the moment someone needs to manage assets or make distributions. That gap often forces the family to start a court process to get a new trustee appointed, rather than having a smooth handoff under the documents.

Process & Timing

Who files: typically a beneficiary, an executor/personal representative, a co-trustee, or another interested person. Where: the Clerk of Superior Court in the North Carolina county with proper venue (often where the estate is administered or where the trust is being administered). What: a special proceeding/petition asking the court to appoint a successor trustee and confirming the trustee’s authority. When: as soon as it becomes clear there is no trustee who can act (for example, at death or incapacity, or when a resignation occurs).
Notice and participation: interested persons may need to be included and notified, and the court may require information about the trust, the vacancy, and the proposed trustee’s qualifications. Timing can vary by county and by whether anyone objects.
Appointment and transition: once appointed, the successor trustee uses the court order to take control of trust assets and continue administration under the trust terms.

Exceptions & Pitfalls

The documents may already solve the problem: some trusts include a built-in method for appointing a replacement (for example, a majority of adult beneficiaries can name a successor, or a named “trust protector” can appoint). If that mechanism exists and is workable, a court appointment may be avoidable.
Outdated names create practical roadblocks: even if the law allows a court appointment, families often face delays locating heirs/beneficiaries, proving a trustee is unavailable, and gathering the paperwork financial institutions want before they will recognize a new trustee.
Unclear trustee order or conflicts: ambiguous successor language, multiple people with equal priority, or a named trustee with a conflict can trigger disputes and increase the chance of court involvement.

Conclusion

In North Carolina, if the trustee and successor trustees named in older will-and-trust documents cannot serve when needed, the trust usually continues but may be left without anyone with legal authority to act until a successor is appointed. That often means a special proceeding before the Clerk of Superior Court to fill the vacancy, which can slow administration and add cost. The most practical next step is to update the documents now so a clear successor trustee can step in without a court appointment.

Talk to a Estate Planning Attorney

If you’re dealing with older wills and trust provisions and the named trustees may not be able to serve later, 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.