Dec282025
Probate Q&A Series

How can I transfer real estate left to a minor when the will doesn’t set up a trust or custodian? – North Carolina

Short Answer

In North Carolina, an executor generally cannot deed real estate directly into a Uniform Transfers to Minors Act (UTMA) custodianship unless the will (or another governing instrument) authorizes that approach. When a will leaves land outright to a minor with no trust or custodial terms, the cleanest path is often to have a guardian of the minor’s estate appointed (through the Clerk of Superior Court) to receive and manage the real estate, or to ask the Clerk for direction when estate property is due a minor and no guardian exists. If the chain of title is unclear (for example, the prior deed’s survivorship or fractional-interest language is confusing), a court determination about ownership may be needed before any distribution deed is recorded.

Understanding the Problem

In North Carolina probate, when an executor must transfer a specific parcel of real estate that a will leaves to a minor grandchild, the key decision is what legal “holder” can take title and manage the property until the minor is old enough to own it outright. When the will does not create a trust and does not name a custodian, the executor must determine whether a custodianship transfer is allowed or whether a guardianship (or Clerk-supervised alternative) is required before recording a deed. The timing issue usually arises before the estate closes, because title insurance and the county Register of Deeds typically expect a clear, legally authorized recipient on the distribution deed.

Apply the Law

North Carolina treats a minor as legally unable to manage property in their own name, so an executor usually needs a legally recognized fiduciary to receive and hold the property for the minor. North Carolina’s UTMA (Chapter 33A) allows real estate to be held by an adult or trust company “as custodian for” a minor under the UTMA, but a personal representative’s authority to make that kind of custodial transfer is generally tied to what the will or trust authorizes. If there is no authorized custodial recipient and no guardian, North Carolina law provides probate/guardianship pathways through the Clerk of Superior Court to protect the minor’s interest and create a record the Register of Deeds can rely on.

Key Requirements

  • A legally authorized recipient: The deed out of the estate should name a person or entity that has authority to hold the land for the minor (commonly a guardian of the minor’s estate appointed by the Clerk of Superior Court).
  • Correct fiduciary authority and Clerk involvement where required: When the will does not provide a clear mechanism, the executor often must obtain an order or approval from the Clerk of Superior Court to confirm the proper recipient and to protect the minor’s interest.
  • Clear title before distribution: If the decedent’s ownership is uncertain due to survivorship language or fractional-interest wording in an earlier deed, the executor may need a court determination clarifying what the estate actually owns before recording a distribution deed.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the will gifts a specific parcel to a minor grandchild and does not set up a trust or name a custodian. That makes a UTMA “custodian deed” less straightforward because a personal representative’s UTMA authority is typically tied to authorization in the will (or another governing instrument), and the deed must name a custodian in the statutory form. Because the prior vesting deed contains unclear survivorship or fractional-interest language, the executor may need a court determination of what the decedent owned before attempting an estate distribution deed to any fiduciary for the minor.

Process & Timing

  1. Who files: The executor (and sometimes an interested family member) initiates the process. Where: The Clerk of Superior Court in the county where the estate is administered handles probate authority; the Clerk of Superior Court in the county where the minor resides typically handles guardianship appointments; and the Register of Deeds in the county where the land sits records the deed. What: A petition/application to appoint a guardian of the minor’s estate (so the guardian can take title), and/or a request for Clerk approval/direction on how to deliver the devise for the minor when no guardian exists. When: Before the executor signs and records the distribution deed, and ideally before the final account and closing steps so the distribution is documented.
  2. If the chain of title is questionable, address title first. That may require a separate proceeding to clarify ownership (for example, determining whether the decedent owned the whole parcel or only a fractional interest) so the distribution deed matches what the estate can legally convey.
  3. After the Clerk-authorized fiduciary is in place and ownership is confirmed, the executor signs and records an executor’s deed (or personal representative’s deed) conveying the estate’s interest to the guardian of the minor’s estate (or other legally approved holder). The recorded deed, together with recorded certified estate papers already filed where the land sits, typically creates the “clean” record needed for later transactions.

Exceptions & Pitfalls

  • Assuming UTMA is available without will authority: UTMA can be an efficient management tool, but a personal representative’s power to transfer into a custodianship is often tied to what the will authorizes; forcing a UTMA deed without the right authority can create recording and title problems.
  • Picking a “custodian” informally: A minor’s parent or another adult may be the right person, but the legal role matters. Title should go to a properly appointed fiduciary or a statutorily valid custodian designation, not just an adult name with no authority.
  • Ignoring the title problem in the prior deed: If the earlier deed’s survivorship or fractional-interest language is unclear, a distribution deed may convey the wrong interest. That can leave the minor with a clouded title and can force expensive corrective work later.
  • Multi-county coordination: When probate is in one county and the land is in another, it is common to record certified probate documents where the land sits. Still, the deed itself must be recordable in the land county and must match the authority/order obtained in the probate/guardianship county.

Conclusion

In North Carolina, when a will leaves real estate outright to a minor and does not create a trust or name a custodian, the executor usually needs a legally recognized fiduciary to take and manage title for the minor—most commonly a guardian of the minor’s estate appointed by the Clerk of Superior Court. UTMA deeds can work for real property, but a personal representative’s ability to use UTMA typically depends on authorization in the will. The next step is to file for the appropriate Clerk order/guardianship and record the distribution deed before the estate is closed.

Talk to a Probate Attorney

If real estate is passing to a minor and the will does not provide a trust or custodianship, an executor often needs a plan that the Clerk of Superior Court and the Register of Deeds will accept, and the plan may also need title-curing work first. Our firm has experienced attorneys who can help explain the 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.