Short Answer

In North Carolina, a revocable trust can avoid probate for assets that were properly retitled into the trust before death. You generally only need to open probate if there are assets solely in the decedent’s name (not in the trust or with survivorship/beneficiary designations), you need the creditor-claim bar, or you must transfer title the trust can’t reach. Jointly owned property with survivorship and tenancy by the entirety usually pass outside probate.

Understanding the Problem

You’re a surviving spouse asking whether you must open probate in North Carolina even though your wife had a revocable trust. The single decision is whether probate is required, given that your jointly owned house is held as tenancy by the entirety.

Apply the Law

Under North Carolina law, assets titled in a revocable trust during life pass under the trust and typically do not require probate. Assets outside the trust may still require probate unless they pass by nonprobate mechanisms (for example, joint ownership with right of survivorship, tenancy by the entirety, or pay-on-death/beneficiary designations). A pour-over will moves any remaining probate assets into the trust, but those assets still require a probate process unless a small-estate alternative applies. The Clerk of Superior Court in the county of the decedent’s domicile is the forum for probate and small-estate options. A concrete timing threshold: collection by affidavit requires that at least 30 days have passed since death and the personal property value is within statutory limits.

Key Requirements

• Identify how each asset is titled: Trust-owned assets bypass probate; solely owned, no-beneficiary assets are probate assets; survivorship/TBE property and POD/TOD assets pass outside probate.
• Confirm small-estate eligibility: Collection by affidavit is available 30 days after death for personal property not exceeding statutory caps; a higher cap applies if the surviving spouse is the sole heir.
• Consider summary administration: If the surviving spouse is the sole heir/devisee, the spouse can use summary administration, but assumes responsibility for valid debts up to the value received.
• Creditor notice strategy: Only a qualified personal representative can publish the estate notice to creditors; trust administration alone does not provide that bar.
• Vehicle title options: If no administration is pending and the estate is small, title may be reassigned via a DMV affidavit certified by the Clerk instead of issuing letters.

What the Statutes Say

• N.C. Gen. Stat. § 28A-25-1 (Collection by affidavit) – permits transfer of limited personal property by affidavit 30+ days after death.
• N.C. Gen. Stat. § 28A-28-1 (Summary administration) – allows a sole surviving spouse to collect and transfer assets without full administration.
• N.C. Gen. Stat. § 20-77(b) (DMV assignment of title) – authorizes Clerk-certified affidavits to transfer motor vehicle titles when no full administration is warranted.
• N.C. Gen. Stat. § 28A-14-1 (Notice to creditors) – requires publication/notice by a qualified personal representative to start the claims period.

Analysis

Apply the Rule to the Facts: Your wife’s revocable trust covers assets titled in the trust, which should pass outside probate. Your tenancy-by-the-entirety home passes to you automatically outside probate; typically no new deed is required, though recording a survivorship affidavit and death certificate is common practice. If a vehicle is jointly owned with survivorship, DMV usually transfers with a death certificate; if it is solely titled in your wife’s name and no administration is pending, the Clerk-certified DMV affidavit can avoid letters. If any solely owned, nontrust, nonbeneficiary assets remain (or you want the creditor bar), opening an estate or using summary administration may be appropriate.

Process & Timing

1. Who files: Surviving spouse or other interested party. Where: Clerk of Superior Court in the North Carolina county of domicile. What: If only nonprobate assets remain, consider filing the will for record or probate without qualification (Application for Probate (Without Qualification of a Personal Representative)), and for vehicles consider the DMV Affidavit of Authority to Assign Title (MVR-317) with Clerk certification. When: Use collection by affidavit only after 30 days if personal property is within limits.
2. If small estate: Use an Affidavit for Collection of Personal Property (caps apply) or, if you are sole heir/devisee, the Application for Probate and Petition for Summary Administration. County processing times vary; plan for days to a few weeks for Clerk review and issuance of certified orders.
3. If probate is needed or you want the creditor bar: File the Application for Probate and Letters with the Clerk; upon qualification, publish/serve notice to creditors as required, administer remaining probate assets, then close the estate with a final account.

Exceptions & Pitfalls

• Unfunded trust assets: A trust avoids probate only for assets actually titled in the trust; pour-over wills still require probate to move leftover assets.
• Creditor risk: Trust administration alone doesn’t give the estate notice-to-creditors bar; consider qualifying a personal representative (or a limited PR) if you need that protection.
• Summary administration tradeoff: The surviving spouse assumes liability for valid debts up to the value received; get advice before choosing it.
• DMV titles: If a vehicle isn’t jointly titled with survivorship or in the trust, DMV may ask for letters; the Clerk-certified MVR-317 can be an alternative when no administration is pending.
• Real estate timing: Sales or encumbrances by heirs/devisees shortly after death can be impacted by creditor rights if no notice to creditors is published.

Talk to a Probate Attorney

If you’re sorting out whether a revocable trust lets you avoid probate and how to handle vehicles or real estate, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

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.