Should I update my will now that my spouse has died so it aligns with our trust and covers anything not in the trust? – North Carolina

Short Answer

Often, yes. In North Carolina, when a spouse has died and an older will left everything to that spouse, the will can produce an unintended result for anything still owned outside the trust (like vehicles titled only in the decedent’s name). A new will (and often updated beneficiary designations and title/ownership cleanup) can realign the plan so that any “leftover” probate property pours into the trust or goes where intended.

Understanding the Problem

In North Carolina probate planning, the core question is: after a spouse’s death, can an older “everything to my spouse” will still control what happens to property that was not transferred into the trust before the spouse died, and does that mismatch create problems for retitling or selling assets later. The actor is the surviving spouse updating an estate plan. The action is revising a will to match an existing trust and to deal with any property that could still pass through the Clerk of Superior Court’s probate process if it remains outside the trust.

Apply the Law

Under North Carolina law, a will controls what happens to property that is part of a decedent’s probate estate at death. If a will leaves property to a beneficiary who does not survive the testator, that gift can fail (called “lapse”) and then the property usually goes to the will’s residuary clause or, if there is no effective residuary clause, by intestacy. North Carolina also allows a will to send (“pour over”) probate assets into an existing trust, so the trust terms control those assets once they reach the trustee. Separately, North Carolina has simplified paths for transferring certain personal property—especially motor vehicle titles—without opening a full estate in some small-estate situations, and the Clerk of Superior Court plays a central role in both probate and allowance proceedings.

Key Requirements

Identify what is outside the trust: Only assets that are still in an individual name (and do not pass by beneficiary designation or survivorship) need a will/probate path.
Make the will’s beneficiary structure work after the spouse’s death: The will should have a clear residuary plan if the primary beneficiary (the deceased spouse) is no longer living, including any “pour-over” to the trust if that is the goal.
Use the right transfer procedure for leftover titled property: For vehicles and similar assets, the correct approach may be (a) an allowance assignment, (b) a DMV affidavit process for small estates, or (c) a qualified personal representative who can sign title documents.

What the Statutes Say

N.C. Gen. Stat. § 31-47 (Testamentary additions to trusts) – Allows a will to devise assets to a trustee of an existing trust (a “pour-over” concept) so trust terms govern the asset after transfer.
N.C. Gen. Stat. § 31-42 (Lapse/failed devises; anti-lapse; residuary) – Explains what happens when a beneficiary predeceases the testator and how failed gifts can move to the residuary or intestacy.
N.C. Gen. Stat. § 30-15 (Spouse’s allowance) – Creates a spouse’s allowance and sets key timing rules, including a six-month deadline after letters issue if an estate is opened.
N.C. Gen. Stat. § 7A-241 (Probate jurisdiction) – Places probate and estate administration under the Superior Court division, exercised by the Clerk of Superior Court.

Analysis

Apply the Rule to the Facts: Here, the trust holds the real property, but several vehicles (including a boat) remain titled in the deceased spouse’s name, which means there may still be probate property that needs a legal transfer path. If the surviving spouse’s existing will still leaves everything to the deceased spouse (or names the deceased spouse in key roles), then for the surviving spouse’s own plan going forward, the will may not match the trust plan and could send any future “outside-the-trust” assets into an unintended default path (residuary/contingent beneficiaries or intestacy). Separately, the existing vehicle-titling issue is handled under the deceased spouse’s estate procedures (DMV small-estate affidavit/allowance/administration), not by changing the surviving spouse’s will.

Process & Timing

Who files: For a new will, the surviving spouse signs a new will with the required formalities. Where: The will is kept privately or deposited for safekeeping with the Clerk of Superior Court in the county. What: A new will that coordinates with the existing trust, often including a residuary “pour-over” clause to the trust and updated fiduciary nominations. When: As soon as the surviving spouse is ready and capable of making a clear plan after the spouse’s death.
To deal with vehicles still in the decedent’s name: The surviving spouse (and other heirs/devisees, if required) typically works through the Clerk of Superior Court and the DMV to use the correct transfer method. In appropriate small-estate situations, DMV may accept an affidavit-based transfer process when no personal representative is expected to qualify and no interested party demands administration; in other cases, the estate needs a personal representative who can sign titles as seller.
Finalize the alignment: After the new will is signed, the next practical step is to confirm which assets are in the trust, which pass by beneficiary designation, and which are still individually titled, and then retitle or update designations so the plan works as written.

Exceptions & Pitfalls

Outdated “everything to spouse” will: If the will’s main beneficiary is now deceased and the document lacks a clear, updated residuary plan, probate assets can end up with contingent beneficiaries the couple did not intend or, if the will fails to dispose of property, by intestacy.
Assuming the trust fixes title problems: A trust does not automatically control assets that were never transferred to it. Vehicles titled only in the decedent’s name commonly require DMV and/or probate steps before they can be sold or retitled.
DMV and local office friction: Vehicle title transfers connected to estates can trigger additional documentation demands. Practical problems are common when a transfer is proposed directly into a trust, and the paperwork path may depend on whether an estate is opened, whether an allowance order exists, and whether the situation fits a small-estate approach.
Deadline confusion: The spouse’s allowance rules can change depending on whether an estate is opened and letters are issued. Missing the six-month window after letters issue can forfeit an allowance claim in some cases.

Conclusion

In North Carolina, updating a will after a spouse’s death is often the right move when an older will left everything to the spouse and an existing trust is meant to be the main planning tool. A new will can add a clear residuary plan (often a pour-over to the trust) so future “outside-the-trust” assets go where intended. The separate vehicle-title issue is usually handled through the Clerk of Superior Court and DMV procedures; if an estate is opened, file any spouse’s allowance claim within six months after letters are issued.

Talk to a Probate Attorney

If a spouse has died and an older will no longer matches an existing trust—especially where vehicles or other titled assets are still outside the trust—our firm has experienced attorneys who can help explain options and timelines and coordinate the probate and DMV steps. 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.