What Is The Difference Between a Living Trust and a Last Will in North Carolina

By Joseph Scrofano

There are two types of legal instruments commonly used for individuals to set the terms of the distribution of their assets upon death. First, a “last will and testament” is a legal document where the person drafting the will appoints an executor (or personal representative) to carry out the will’s instructions in the probate process. Second, a living trust is a legal document where the asset holder may unilaterally change it at any time. Laws for living trusts and probate are governed by state law. Accordingly, North Carolina state law governs the differences between wills and living trusts for residents of that state.

Definitions and Terms

Different terms and definitions apply in the context of a will and a living trust. For a will, the person who drafts the document is referred to as a “testator.” Upon death, the testator becomes the “decedent.” When drafting a will, the testator must appoint an “executor” to carry out the will’s instructions. Once the testator dies, the executor must file for “probate.” In North Carolina, Superior Courts have jurisdiction over probate matters, which are the legal proceedings in which the probate judge authenticates the decedent’s will and ensures that the executor follows North Carolina law in administering the estate. In the context of a living trust, the “settlor” transfers her assets to the trust and names herself as “trustee.” The settlor also appoints a “successor trustee” who will assume control over the trust upon the settlor’s death or other incapacitation.


The first primary difference between living trusts and wills in North Carolina is over the probate process. With a living trust, the estate does not have to be probated. Probate can be an expensive and costly process. In addition, the successor trustee is not subject to the probate court’s supervision the way an executor is. The successor trustee simply transfers the assets in the trust according to the conditions the trust’s declaration states.

Protect your loved ones. Start My Estate Plan


In North Carolina, once a will goes to probate, the will becomes a public record. Living trusts do not become public record. Some people may not have a problem with their will becoming a public record. For others, privacy in the distribution of their estate is a paramount concern. This issue also applies with the estate inventory in the probate process, which also becomes public.

Small Estate

North Carolina is one of only two states that do not have a streamlined and usually more economical process for small estate probate. This means that even estates with few assets must go through the costly probate process in North Carolina. Accordingly, smaller estates may have a greater incentive to utilize a living trust to avoid costs for probate.

Protect your loved ones. Start My Estate Plan
Difference Between a Last Will and a Revocable Trust



Related articles

What Is Diversion of Property From a Trust?

Diversion of trust property is a legal term used to describe the misapplication or misuse of trust property. Not only does diversion of trust property violate the terms of the trust itself, but it's often a criminal act. A trust agreement forms a contract between the person who sets up the trust in the first place, the trustee and the beneficiary. The trustee has a fiduciary duty to act in the best interests of both the trust and its beneficiary.

The Responsibilities of the Trustee for a Living Trust in Indiana

A trust is an estate planning document that transfers property of the trust's creator, known as the “settlor,” to the trustee for the benefit of a beneficiary named in the trust document. A trust is considered a living trust when it is created and takes effect during the settlor’s lifetime. A living trust can either be revocable or irrevocable. In a revocable living trust, the settlor can amend or revoke the trust anytime during his lifetime. In Indiana, the trustee's duties are set forth in the Indiana Trust Code.

What Does Probating a Will Mean?

The will probate process may seem complex on the surface. A closer examination, however, reveals that the process is actually relatively straightforward. At its core, probate involves the state court oversight of a will's authentication and the distribution of an estate's assets.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

Living Trust Vs Last Will in Texas

Probating a will can be a time-consuming and costly process. In addition, all probate costs are paid from the assets of ...

Trusts Vs. Last Wills in California

Probating a will can be a long and expensive process depending on the size and complexity of the estate. The cost of ...

Florida Last Wills Vs. Trusts

Planning for your eventual demise can help you protect your assets and ensure their smooth transfer of your heirs. ...

Trusts & Last Wills in the State of Oklahoma

Estate planning helps individuals who own assets control how those assets are disposed of upon their death. There are ...

Browse by category
Ready to Begin? GET STARTED