Short Answer

In North Carolina, the signer must have testamentary capacity at the moment the will is signed and it must be executed with two witnesses in the testator’s presence. Remote/video witnessing and notarization authorizations expired in 2021, so plan an in‑person signing (for example, at the nursing home). Confirm capacity through a private conversation, ask clear orientation and decision‑making questions, and, if appropriate, obtain a contemporaneous medical note. Make the will self‑proved with a notary to streamline probate.

Understanding the Problem

In North Carolina, how can you confirm a nursing‑home resident’s capacity and properly execute a will when you can only reach them by the facility phone? You want to know whether a remote intake is acceptable, whether an attorney must travel, and how to handle witnesses and notarization so the will holds up later.

Apply the Law

Under North Carolina law, testamentary capacity means the person understands who their family or intended beneficiaries are, what they own, and that they are signing a will that distributes their property at death. Capacity must exist at the time of signing. A valid attested will requires the testator’s signature and two competent witnesses who sign in the testator’s presence; a notary is not required for validity but is commonly used to make the will self‑proved. The forum for probate (and for any optional “living probate” capacity confirmation before death) is the Clerk of Superior Court in the county of residence. Video witnessing/notarization allowances have expired; original signatures are required.

Key Requirements

• Capacity at signing: The testator must, at that moment, know their intended beneficiaries, understand their property, and grasp that the document disposes of it at death.
• Free will: The decision must be the testator’s, free from pressure or undue influence; meet privately with the testator to confirm this.
• Formal signing: The testator signs (or directs someone to sign in their presence), and two witnesses sign in the testator’s presence; witnesses need not be in each other’s presence.
• In‑person execution: Remote/video witnessing and emergency video notarization are no longer authorized; plan an in‑person signing with original (wet‑ink) signatures.
• Self‑proving option: Add a notary acknowledgement and witness affidavits at signing (or later, before death) to make the will self‑proved and ease probate.

What the Statutes Say

• North Carolina Gen. Stat. § 31-3.3 (Execution of attested wills) – Two witnesses in the testator’s presence; testator signs or acknowledges signature.
• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – Notary acknowledgement and witness affidavits at or after execution simplify probate.
• North Carolina Gen. Stat. § 28A-2B-1 (Living probate of will or codicil) – Testator may petition the Clerk to confirm validity before death.
• North Carolina Gen. Stat. § 28A-2A-8 (Proof of will when not self-proved) – How the Clerk accepts witness testimony if the will is not self‑proved.

Analysis

Apply the Rule to the Facts: Because your relative is in a nursing home and cannot travel, arrange an in‑person signing at the facility. Use a private meeting (no beneficiaries or caregivers present) to verify capacity—ask about family, property, and the effect of the will. Since remote witnessing is no longer allowed, bring two disinterested adult witnesses and, ideally, a notary to add a self‑proving affidavit. If medical issues could later be questioned, obtain a brief physician note near the signing confirming the relative’s cognitive status.

Process & Timing

1. Who files: For living probate (optional), the testator. Where: Clerk of Superior Court in the North Carolina county of domicile. What: Petition to declare the will valid under the living probate statutes; bring the original will to the hearing. When: File before death if you want pre‑death validation; procedures can vary by county.
2. Execution meeting (most common approach): Attorney schedules a private visit at the nursing home. Conduct a brief capacity check, confirm instructions, then supervise signing with two disinterested witnesses in the testator’s presence. Add a notary self‑proving affidavit at the same time. This can usually be completed in one visit, subject to facility policies.
3. Final step: Keep the original will safe (consider depositing it for safekeeping with the Clerk). After death, the will is probated with the Clerk of Superior Court; a self‑proved will typically avoids locating witnesses.

Exceptions & Pitfalls

• Remote execution limits: Emergency video witnessing/notarization has expired; do not rely on phone or video for will execution.
• Undue influence risk: Avoid having beneficiaries, agents under a power of attorney, or caregivers in the room when discussing or signing.
• Witness choices: Use disinterested adult witnesses; interested witnesses can complicate probate and invite challenges.
• Original signatures: The Clerk requires original (wet‑ink) signatures; copies are insufficient for probate.
• Signing assistance: If the testator cannot physically sign, another person may sign at the testator’s direction and in the testator’s presence—document the direction clearly and avoid having a beneficiary do it.
• Capacity in fragile health: Capacity is measured at the moment of signing; if cognition fluctuates, time the meeting for when the testator is most alert and consider a contemporaneous medical note.

Talk to a Estate Planning Attorney

If you’re arranging a nursing‑home will signing and need to confirm capacity and proper execution, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at .

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.