Short Answer

Usually no. In North Carolina, retirement and transfer-on-death (TOD) brokerage accounts that name a testamentary trust pass directly to the trust—not to the estate—so the executor cannot withdraw or redirect those funds. The custodian will release them once a trustee accepts, a trust tax ID is in place, and required trust documentation is provided. If a probate asset is titled only to the decedent (no beneficiary/TOD), the executor may access it after qualification and then fund the trust per the will.

Understanding the Problem

You’re asking whether, in North Carolina, an executor can access a decedent’s individually held brokerage account and two retirement accounts that name a testamentary trust, before the trustee is confirmed. The single decision point is whether the executor may take possession or must wait for a trustee to accept and for the trust to be ready to receive the assets.

Apply the Law

Under North Carolina law, assets with a valid beneficiary designation (like many IRAs and TOD brokerage accounts) transfer outside probate directly to the named beneficiary—in this case, the testamentary trust. Those assets generally are not estate property the executor can spend or retitle. The custodian typically requires: (1) a trustee to accept fiduciary duty, (2) a trust taxpayer identification number (EIN), and (3) a certification of trust or comparable documentation. If no trustee is available or willing, the Clerk of Superior Court can appoint one. For probate assets (no beneficiary/TOD), the executor may collect, manage, and then distribute to the trust per the will after paying valid claims. For retirement accounts payable to a trust, federal plan rules also impose strict post‑death documentation and distribution timelines.

Key Requirements

• Identify asset type and title: Determine if each account is probate (sole name, no TOD/beneficiary) or non‑probate (TOD or beneficiary to the trust).
• Trustee in place: A trustee must accept, obtain a trust EIN, and provide a certification of trust before custodians will transfer to the trust.
• Executor’s reach is limited: The executor may access probate assets, but generally not beneficiary/TOD assets, unless needed later to pay estate debts.
• Retirement plan timing: For IRAs/qualified plans payable to a trust, deliver required trust documentation to the plan administrator by the plan’s stated deadlines (often October 31 of the year after death) to preserve tax options; year‑of‑death RMDs may also be due.
• Court help if no trustee: If the named corporate trustee declines or delays, petition the Clerk of Superior Court to appoint a (successor or temporary) trustee so assets can be received.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-13-3 (Powers of personal representative) – Executor may collect, manage, and distribute probate personal property.
• North Carolina Gen. Stat. § 41-46 (Transfer-on-death securities) – TOD registration transfers ownership to the beneficiary at death.
• North Carolina Gen. Stat. § 28A-15-10 (Recovery of nonprobate assets) – Estate may recover survivorship/TOD funds only if estate assets are insufficient to pay claims.
• North Carolina Gen. Stat. § 36C-7-704 (Filling a vacancy in trusteeship) – Clerk may appoint a trustee if none serves.

Analysis

Apply the Rule to the Facts: Here, the retirement accounts and the individual brokerage account name a testamentary trust, so they are non‑probate and the executor cannot withdraw or retitle them into the estate. The custodian will need a trustee, a trust EIN, and a certification of trust before transferring. If the corporate trustee won’t accept until a minimum asset level is assured, the executor can seek appointment of an alternate or temporary trustee so the transfer can occur. If estate assets prove insufficient to satisfy debts, the executor may use statutory procedures to recover enough from the beneficiary‑designated accounts solely to cover valid claims.

Process & Timing

1. Who files: Executor or any interested party. Where: Clerk of Superior Court in the county of estate administration. What: Petition to appoint a trustee if the named corporate trustee won’t accept; obtain trust EIN and prepare a certification of trust. For probate assets, continue with inventory and administration (e.g., Inventory, AOC‑E‑505). When: Coordinate immediately after qualification; for IRAs/qualified plans, provide required trust documentation to the plan administrator by the plan’s deadline (often October 31 of the year after death).
2. Provide the custodian with the death certificate, trustee acceptance/appointment (if applicable), trust EIN, and a certification of trust. For IRAs, arrange a direct trustee‑to‑trustee transfer into an inherited IRA titled for the trust; confirm any year‑of‑death RMD by December 31 if applicable.
3. Once the trustee receives the assets, the trustee funds the primary trust and sub‑trust shares as the will directs. The executor completes estate administration, addresses creditor claims, files required accountings, and closes the estate. If a mortgage payoff in another jurisdiction needs recording, coordinate with that jurisdiction’s recorder to file satisfaction once payoff documentation is in hand.

Exceptions & Pitfalls

• If the estate—not the trust—is named beneficiary of an IRA/plan, the executor must manage distributions under plan and tax rules; do not request a lump‑sum distribution without understanding the tax timing.
• Do not take IRA funds into the estate if the trust is the beneficiary; use a direct trustee‑to‑trustee transfer to an inherited IRA for the trust to avoid losing tax deferral.
• If no trustee has accepted, ask the Clerk to appoint a successor or temporary trustee; otherwise custodians may refuse to transfer.
• For TOD/securities, remember they pass outside probate; list them appropriately on the estate inventory and only seek recovery if estate assets are insufficient to pay valid claims.
• Provide a certification of trust instead of the full will/trust when possible; confirm whether any bond or court accounting is required by the will’s terms.
• Procedures and plan deadlines can change; confirm current custodian requirements and federal tax timelines before moving funds.

Talk to a Probate Attorney

If you’re dealing with beneficiary‑designated IRAs or TOD accounts payable to a testamentary trust and need to coordinate funding and timing, 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.