Short Answer

In North Carolina, if a will creates a trust (a testamentary trust) or if any real estate passes under the will, the will generally must be probated to pass title and to activate the trustee’s authority. If the real estate was already titled in a separate living trust before death, probate may not be needed for that property. If property sits in a trust, a beneficiary typically cannot file a partition action; the trustee holds legal title and must act. You can obtain full copies of a probated will from the Clerk of Superior Court and may request the trust document from the trustee.

Understanding the Problem

You’re asking, under North Carolina law, whether you must open probate when the will says your inheritance is held in a trust, and you want to partition the property. You have only the first and last pages of the will and don’t know who the executor is. You need complete copies of the will and trust and clarity on whether probate was required to move forward.

Apply the Law

North Carolina treats property differently depending on how it was owned at death. If real estate passes through a will, the will must be admitted to probate to pass title and authorize any trustee named in it (a testamentary trust). If the property was already owned by a separate revocable living trust before death, that trust—not the probate estate—controls. Beneficiaries have a right to reasonable trust information, including a copy of the trust, on request. Partition actions apply to co-owners who hold legal title; trust beneficiaries usually hold equitable interests, so they must work through the trustee rather than file a partition case themselves.

Key Requirements

• Identify how title passed: If the will creates the trust or the real estate passes under the will, probate is typically required to pass title and empower the trustee.
• Confirm whether probate occurred: Once probated, the original will is kept with the Clerk of Superior Court and is a public record you can copy.
• Get the trust document: A qualified beneficiary may request a copy of the trust and basic information about trust assets from the trustee; courts can compel disclosure if needed.
• Partition requires legal title: If the property is held in a trust, the trustee holds legal title; beneficiaries generally cannot partition trust property until it is distributed out of the trust.
• Record in all counties with land: Certified copies of a probated will should be filed in each North Carolina county where the decedent owned real property.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-2 (Who may apply for probate) – Executor has 60 days; after that, any interested person may apply on notice.
• North Carolina Gen. Stat. § 28A-2A-13 (Probated wills as public records; filing in other counties) – Probated wills are public; certified copies may be filed where other NC land lies.
• North Carolina Gen. Stat. § 31-39 (Effect of probate on title) – Probate is required for a will to pass title against certain third parties; timing matters.
• North Carolina Gen. Stat. § 36C-8-813 (Trustee duty to inform and report) – Qualified beneficiaries may obtain a copy of the trust and basic information.

Analysis

Apply the Rule to the Facts: Because you only have partial pages and don’t know the executor, the first step is to confirm whether the will was probated. If the will created the trust that holds the property, probate was necessary to pass title and empower the trustee; the full probated will should be available from the Clerk of Superior Court. If the property was already in a living trust before death, probate might not be needed for that property, but you’d still need the trust instrument. As a beneficiary, you generally cannot partition trust property; you must obtain the trust and work through the trustee (or the court) to sell or distribute the property first.

Process & Timing

1. Who files: Executor first; after 60 days, any interested person. Where: Clerk of Superior Court in the county of the decedent’s domicile. What: AOC‑E‑201 (Application for Probate and Letters) or AOC‑E‑199 (Probate without qualification), and the original will if available. When: If the executor has not applied within 60 days, an interested person may apply on 10 days’ notice to the named executor.
2. Get documents: Request certified copies of the probated will from the Clerk. Send a written request to the trustee for the trust instrument and basic asset information. If the trustee does not respond, file a trust proceeding to compel disclosure in the county of the trust’s principal place of administration or where a beneficiary resides.
3. Move toward partition: If property remains in trust, ask the trustee to sell or distribute according to the trust. If appropriate, seek court relief in a trust proceeding (for example, to direct a sale or distribution, or to modify/terminate the trust). Once title is distributed to beneficiaries as co‑owners, file a partition petition with the Clerk of Superior Court in the county where the land lies under North Carolina’s partition statutes.

Exceptions & Pitfalls

• Will filed without probate: Filing a will alone makes it public but does not pass title; consider probate without qualification if no full administration is needed.
• Property already in a living trust: If the decedent transferred the real estate to a revocable trust before death, probate may not be needed for that property.
• Trustee is a necessary party: For any action affecting trust property, involve the trustee; beneficiaries usually cannot partition trust‑owned land.
• Multiple counties: After probate, file certified copies of the will in each North Carolina county where the decedent owned land to put title records in order.
• Missing will: If someone is withholding the will, you can ask the Clerk to compel its production; if the original is lost, there are procedures to probate a copy.

Talk to a Partition Action Attorney

If you’re dealing with inherited property held in a trust and need to know whether to open probate or how to pursue a sale, 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.