If a North Carolina will excuses a testamentary trustee from filing inventories and annual accounts, does the trustee still have to qualify before the clerk of superior court?

Plain-English summary

Major A. Jones, Clerk of the Superior Court of Burke County, asked the AG whether a testamentary trustee still has to qualify before the clerk when the will itself relieves the trustee of the duty to file inventories and annual or final accounts.

The 1984 AG answered yes, but only for wills executed after January 1, 1978. The answer turned on the legislative history of G.S. 36A-107.

As originally enacted in 1907 (Chapter 804, 1907 Session Laws, codified as C.S., s. 51), the statute required only that the testamentary trustee file inventories and accounts; nothing in the statute required qualification before the clerk. The third sentence allowed the testator to override the statute by making "a different provision for filing inventories and accounts."

Chapter 519 of the 1961 Session Laws added the requirement that the trustee "first qualify under the laws applicable to executors," but did not touch the override sentence. Then Chapter 1176 of the 1965 Session Laws broadened the override to read "This section shall not apply to the extent that any will makes a different provision," with the result that a testator could excuse the trustee from any or all of the statutory requirements, including qualification. The Court of Appeals confirmed this reading in Lentz v. Lentz (1969).

Chapter 502 of the 1977 Session Laws (effective January 1, 1978) reversed that opening. A House committee substitute for Senate Bill 153 added the words "in regard to the requirements for filing inventories and accounts" back into the third sentence. The General Assembly was presumed to know the prior 1965 wording, and under the maxim "expressio unius est exclusio alterius," the explicit listing of "inventories and accounts" meant qualification was no longer waivable. After the 1978 effective date, the will could excuse the filing duties but not the qualification requirement.

The AG noted two policy footnotes. First, the qualification requirement helps guard against circumvention of G.S. 55-132(b), which limits the ability of foreign corporations to serve as testamentary trustees. Second, regardless of statutory waivers, the court retains its inherent authority to supervise the fiduciary relationship under Lichtenfels v. North Carolina National Bank.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The trust law chapter (originally Chapter 36A) has been substantially rewritten over the decades, including the adoption of the Uniform Trust Code in North Carolina (Chapter 36C). The qualification-of-trustees concept survives, but the specific statutory section number and the precise wording have likely changed.

Historical context: what the AG concluded

The opinion's interpretive moves are worth noting because they show a textualist reading of a statute that had been amended four times over seventy years.

The 1907-to-1961 period. The statute required filing but said nothing about qualification. A will could override the filing duty. Trustees did not need to formally qualify before the clerk.

The 1961 amendment. A new opening clause required qualification, but the override sentence was left untouched, and the override still referred specifically to "inventories and accounts." That created an ambiguity: could a testator override the new qualification requirement, or only the old filing duty?

The 1965 amendment. The General Assembly resolved the ambiguity in the testator's favor by rewriting the override broadly: "to the extent that any will makes a different provision." Lentz v. Lentz applied the broader override.

The 1977 amendment. The legislature reversed course, narrowing the override back down to inventories and accounts. The AG read the amendment as deliberate: the legislature is presumed to know the existing law (State v. Benton), and a specific carve-out is presumed to exclude what it does not carve out (the expressio unius maxim).

Anomaly noted. The 1984 opinion frankly observed that the resulting statutory scheme is "anomalous at best": the trustee must qualify before the clerk, but the will can still excuse the trustee from supplying the clerk with the information needed to assess the trustee's performance. The opinion does not propose a fix; it notes that the General Assembly's policy choices in this area are not subject to judicial second-guessing, citing Vinson v. Chappell and Wilson v. Anderson.

Background and statutory framework

G.S. 36A-107, as it stood in 1984, read:

Trustees appointed in any will admitted to probate in this State, into whose hands assets come under the provisions of the will, shall first qualify under the laws applicable to executors, and shall file in the office of the clerk of the county where the will is probated inventories of the assets which come into his hands and annual and final accounts thereof, such as are required of executors and administrators. The power of the clerk to enforce the filing and his duties in respect to auditing and approving shall be the same as in such cases. This section shall not apply to the extent that any will makes a different provision in regard to the requirements for filing inventories and accounts.

The structure is three parts: a qualification requirement, a filing requirement, and a will-based override. As of January 1, 1978, the override reached only the filing requirement.

The session-law breadcrumbs are: Chapter 804 of 1907 (original enactment), Chapter 519 of 1961 (added qualification), Chapter 1176 of 1965 (broadened override), Section 4 of Chapter 1329 of 1973 (recodification only), Chapter 502 of 1977 (narrowed override to filing only). The 1977 House committee substitute is the act that produced the rule the 1984 opinion enforces.

The statutory-construction work in the opinion leans on three sources: In Re Watson for the proposition that added statutory language must be given import, State v. Benton for the presumption that the legislature knew the prior law, and the treatise (12 Strong's N.C. Index 3d, Statutes § 5.8) for the expressio unius rule.

Common questions

Does the rule apply to wills executed before January 1, 1978?

No. The 1984 opinion is careful to say the strict qualification rule applies only to wills executed after January 1, 1978. For wills executed before that date, the broader 1965 override applies and the testator could excuse the trustee from qualification (subject to whatever Lentz v. Lentz says about the 1961 cutoff).

What does qualification before the clerk actually involve?

Qualification under "the laws applicable to executors" means appearing before the clerk, taking the prescribed oath, and complying with any bond or surety requirements the clerk imposes. The 1984 opinion does not detail these mechanics; it directs the reader to the executor-qualification provisions for the operative steps.

Can a corporate trustee still serve under a waiver-of-filing will?

Yes, but the corporate trustee must qualify. The 1984 opinion specifically mentions G.S. 55-132(b), which limits foreign corporations as testamentary trustees. The qualification requirement gives the clerk a checkpoint to enforce that limit.

What if the will tries to waive both the filing and the qualification?

For wills executed after January 1, 1978, the waiver clause is effective only as to filing. The qualification requirement is mandatory and cannot be overridden by will language.

Does the clerk still have power to compel filings even if the will excuses them?

The opinion treats the filing waiver as effective when the will so provides; the clerk's power to enforce filing is the same as for an executor or administrator, but if the will validly excuses the filing, there is nothing to enforce. The qualification record itself, however, remains in the clerk's office regardless.

Source

• Landing page: https://ncdoj.gov/opinions/testamentary-trustees/

Citations

• N.C.G.S. § 36A-107
• N.C.G.S. § 55-132(b)
• Chapter 804, 1907 Session Laws (C.S., s. 51)
• Chapter 519, 1961 Session Laws
• Chapter 1176, 1965 Session Laws
• Chapter 1329, 1973 Session Laws
• Chapter 502, 1977 Session Laws
• Lentz v. Lentz, 5 N.C. App. 309, 168 S.E. 2d 437 (1969)
• In Re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968)
• State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970)
• Lichtenfels v. North Carolina National Bank, 260 N.C. 146, 132 S.E. 2d 360 (1963)
• Vinson v. Chappell, 275 N.C. 234, 166 S.E. 2d 686 (1969)
• Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836 (1950)
• 12 Strong's N.C. Index 3d, Statutes § 5.8
• 26A C.J.S., Descent and Distribution § 2

Original opinion text

Requested By: Major A. Jones, Clerk of the Superior Court, Burke County

Question: Where a will relieves a testamentary trustee from the necessity of filing inventories and annual and final accounts, is it necessary for the testamentary trustee to qualify?

Conclusion: Yes, provided the will was executed after January 1, 1978.

The relevant statutory provision was first enacted as Chapter 804 of the 1907 Session Laws (C.S., s. 51). As enacted the section only required that the testamentary trustee file inventories and accounts and made no reference to qualification before the clerk of superior court. The last sentence in the section read "This section shall not apply to any will in which a different provision is made for filing inventories and accounts," [emphasis added]. Thus a testator was authorized to excuse his testamentary trustee from the requirements of the statute regarding filing inventories and accounts, and there was no statutory requirement for the trustee to qualify.

Chapter 519 of the 1961 Session Laws, effective July 1, 1961, added the requirement that the testamentary trustee shall "first qualify under the laws applicable to executors" to the previous requirements regarding inventories and accounts but did not amend the third sentence of the section which continued its specific reference to only inventories and accounts.

Chapter 1176 of the 1965 Session Laws did rewrite the third sentence to read "This section shall not apply to the extent that any will makes a different provision.", and also made the requirement for qualification inapplicable to wills executed prior to July 1, 1961, Lentz v. Lentz, 5 N.C. App 309, 168 S.E. 2d 437 (1969). Thus the 1965 General Assembly provided that the testator had the authority to waive any or all of the requirements of the section. The revision of the third sentence was undoubtedly intended to extend the testator's authority to allow him to excuse his trustee from the requirement of qualifying which had been added in 1961.

Section 4 of Chapter 1329 of the 1973 Session Laws made no changes to the section and merely recodified the 1965 version of the section.

Senate Bill 153 of the 1977 General Assembly, as introduced, also made no changes to the 1965 version of the section. However, a House Committee Substitute for Senate Bill 153, adopted May 17, 1977, added the language "in regard to the requirements for filing inventories and accounts" to the third sentence of the section. The Committee Substitute was enacted as Chapter 502 of 1977 Session Laws effective January 1, 1978, and the section, now codified as G.S. 36A-107 reads as follows:

"36A-107. Trustees in wills to qualify and file inventories and accounts.

Trustees appointed in any will admitted to probate in this State, into whose hands assets come under the provisions of the will, shall first qualify under the laws applicalbe to executors, and shall file in the office of the clerk of the county where the will is probated inventories of the assets which come into his hands and annual and final accounts thereof, such as are required of executors and administrators. The power of the clerk to enforce the filing and his duties in respect to auditing and approving shall be the same as in such cases. This section shall not apply to the extent that any will makes a different provision in regard to the requirements for filing inventories and accounts." [Emphasis added].

The underlined language which was added by the Committee Substitute must be given some import if possible, In Re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968). In addition, there is a presumption that the General Assembly was aware of the existing law. "It is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law." [Emphasis added]. State v. Benton, 276 N.C. 641, 658, 174 S.E. 2d 793 (1970). Based upon the principles stated above it can only be concluded that the intent of the General Assembly in adding the language "in regard to the requirements for filing inventories and accounts" was to limit the authority the 1965 version of the statute had given the testator to relieve his trustee of any or all of the requirements of filing inventories, filing accounts or qualifying. Further, the maxim "expressio unius est exclusio alterius" dictates the conclusion that by specifically listing the requirement for qualification the General Assembly expressed its intention not to authorize the testator to override the statute's express requirement that a testamentary trustee must qualify. "Where a statute excludes from its general operation a single specific circumstance, it is evidence of the legislative intent not to exempt other circumstances not expressly provided for." 12 Strong's N.C. Index 3d, Statutes § 5.8.

Similar to the 1961 Act, the current statute provides that a trustee must qualify before the clerk, but may be excused from supplying to the clerk the information necessary to determine if the trustee is performing his duties, a situation which is anomalous at best. However, two points should be noted, first the current statute does not serve to deter circumvention of the provisions of G.S. 55-132(b) prohibiting foreign corporations from serving as testamentary trustees except under certain well defined circumstances, and second, the statute in no way interferes with the inherent right of the court to supervise a fiduciary relationship, Lichtenfels, et. al. v. North Carolina National Bank, 260 N.C. 146, 132 S.E. 2d 360 (1963). The law of estates is an area of the law which is peculiarly within the legislative sphere, Vinson v. Chappell, 275 N.C. 234, 166 S.E. 2d 686 (1969); Wilson v. Anderson, 232 N.C. 212, 59 S.E. 2d 836 (1950); 26A C.J.S., Descent and Distribution § 2. The language of the statute is clear and the General Assembly's intent is clear and neither the logic nor the wisdom of the General Assembly's actions are subject to challenge in such areas.

RUFUS L. EDMISTEN
ATTORNEY GENERAL

Charles J. Murray
Special Deputy Attorney General
Revisor of Statutes