Sparta, GA asked in Estate Planning and Probate for North Carolina

Q: Parents have a trust, but dad never changed titles of property or accounts into the trust. He recently deceased.

Mom is executor and trustee. Can mom avoid going to clerk of court or does she now have to open an estate? Should she still fill out that there is a will?

What does this mean..."If the trust hereinabove referred to in is not in effect at my death, or if for any other reason the gift to said trust cannot be accomplished, I specifically and completely incorporate the terms of said trust into this Will by reference. In such a situation, I direct my Executor to establish a trust in accordance with the provisions of said trust and give the remainder of my estate, excluding any property over which I might have a power of appointment, to the Trustee of such trust."

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1 Lawyer Answer
Nina Whitehurst
Nina Whitehurst
  • Estate Planning Lawyer
  • Crossville, TN

A: You are describing what sounds like a pour-over will. It means that the testator wants all of his property to be administered by the terms of his (or their) trust. The best practice is to transfer all property to the trust during lifetime. The pour over will is only there to catch things that fell through the cracks and didn't get transferred to the trust. But if the testator was not diligent during lifetime with transferring assets to the trust, then more than just a few things fell through the cracks.

You will need to probate the will to get the decedent's property transferred to his trust. Then you will need to administer the trust according to the provisions that govern what happens at the first death.

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