Can I still put the property into a trust to avoid probate after an owner has passed away? – North Carolina

Short Answer

No. In North Carolina, a trust can only avoid probate for property that the owner transferred into the trust while the owner was alive (or that passes to the trust by a valid beneficiary/survivorship feature). After an owner dies, that owner cannot sign a deed to move the owner’s share into a trust, so the deceased owner’s interest usually must transfer through an estate process (often intestate administration if there is no will) before it can be deeded into a trust or to the proper heirs.

Understanding the Problem

When a co-owner of North Carolina real estate dies, can the surviving co-owner place the property into a trust after the death so the deceased co-owner’s share avoids probate? The key decision point is whether the deceased co-owner’s ownership interest can be transferred without an estate proceeding, or whether a personal representative must be appointed to transfer that interest before any trust funding can happen.

Apply the Law

In North Carolina, a revocable living trust avoids probate only for assets that are titled in the trust (or payable to the trust) before the owner dies. Real estate transfers into a trust by a deed signed during life. After death, only a court-appointed personal representative (or the heirs acting where the law allows) can take legally effective steps to transfer the deceased person’s interest, and the Clerk of Superior Court is the main office that handles estate qualification and many probate filings.

Key Requirements

• Who owned what at the moment of death: The deed controls whether the deceased person owned an interest that needs an estate transfer or whether the interest ended at death because of a survivorship feature.
• Authority to sign a deed after death: A deed moving the deceased person’s share generally must be signed by a properly authorized person (often a qualified personal representative) and handled through the estate file with the Clerk of Superior Court.
• Creditor/estate administration timing rules: North Carolina has timing rules that can affect whether heirs can convey real estate on their own, especially within the first two years after death and before notice to creditors is handled in the estate.

What the Statutes Say

• N.C. Gen. Stat. § 29-13 (Intestate succession) – Explains that an intestate estate passes to heirs, but remains subject to administration costs and lawful claims.
• N.C. Gen. Stat. § 31-39 (Probate necessary to pass title; timing rules) – Sets rules and time limits affecting when a will is effective against lien creditors and purchasers and addresses recordation for real property in other counties; it also reflects the broader point that estate timing and recording rules matter for real estate title after death.

Analysis

Apply the Rule to the Facts: The facts describe a family home with two deeded co-owners, one co-owner died, and there is no will. That usually means the deceased co-owner’s share cannot be “put into a trust” after death because the deceased co-owner cannot sign a deed now. Instead, the deceased co-owner’s interest typically must pass to the correct heirs through an intestate estate process, and then the resulting owner(s) can decide whether to deed their interests into a trust for future probate avoidance.

Process & Timing

1. Who files: A qualified heir or other eligible person asks to be appointed personal representative (often an administrator when there is no will). Where: The Clerk of Superior Court in the North Carolina county where the deceased person was domiciled (or, in some cases, where property is located). What: An application/petition to open an estate and qualify the personal representative, plus supporting documents required by the clerk (commonly including an original death certificate or certified copy, depending on the filing). When: File as soon as practical if title must be transferred, the home must be sold/refinanced, or creditors must be addressed.
2. After qualification, the personal representative handles required notices and gathers information about heirs, debts, and the title history. If the home needs to be sold or transferred within the first two years after death, North Carolina’s creditor-notice and administration rules can affect whether heirs can convey title without the personal representative’s participation, so planning the sequence matters.
3. Funding a trust later: Once the deceased co-owner’s share is properly transferred to the heirs (or to a buyer), the living owner(s) can deed their interest into a trust for the next generation’s probate avoidance. If property is located in another state, a separate out-of-state proceeding may be required there, and if the deceased person was not domiciled in North Carolina but owned North Carolina real estate, North Carolina may require an ancillary estate proceeding to clear title and complete a lawful conveyance.

Exceptions & Pitfalls

• Survivorship deeds: If the deed was set up so the survivor automatically takes full title at death (for example, certain survivorship ownership forms), probate may not be needed for that transfer, and the survivor may be able to deed the property into a trust immediately. The deed language is decisive.
• Assuming “no probate” because there is only real estate: In some situations an estate administration may be avoidable if there are no debts to address and no near-term sale, but many families still open an estate to produce clean, insurable title and to allow a personal representative to sign documents when needed.
• Title and creditor timing: Transferring real estate without coordinating the estate’s creditor-notice timeline can create avoidable title objections. This risk increases when the home will be sold, refinanced, or mortgaged within two years after death.
• Ancillary administration confusion: “Ancillary probate” usually means a second estate proceeding in a different state (or a related proceeding in North Carolina for a nonresident decedent with North Carolina property). Mixing up domicile, location of the land, and where the estate must be opened often leads to delays.

Conclusion

In North Carolina, a trust cannot be used after an owner dies to retroactively avoid probate for that owner’s share of real estate because the deceased owner cannot sign the deed needed to fund the trust. When a co-owner dies without a will, the deceased owner’s interest typically must pass through intestate estate administration handled through the Clerk of Superior Court, and creditor-timing rules can matter, especially within two years of death. Next step: open the estate with the Clerk of Superior Court so a personal representative can transfer title correctly.

Talk to a Probate Attorney

If a co-owner has died and the goal is to transfer or sell a North Carolina home while keeping the process as smooth as possible, a probate attorney can help confirm the deed’s ownership type, identify the correct heirs, and map out the estate and any ancillary filing needed for clear title. 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.