Short Answer

Yes. If a North Carolina will is not self-proved and the subscribing witnesses are unavailable, the Clerk of Superior Court may accept affidavits proving the handwriting of the witnesses and the testator. Any nonexpert who is familiar with the handwriting may testify, including relatives. If those relatives are also beneficiaries, their testimony is still allowed, but the clerk may scrutinize it more closely and ask for additional proof.

Understanding the Problem

In North Carolina probate, you want to know whether you can use family members to submit affidavits confirming the handwriting of the subscribing witnesses to a will. You are applying to serve as executor; the will is in English; the witnesses are abroad and unavailable. You need to satisfy the Clerk of Superior Court that the will was properly executed without the witnesses appearing.

Apply the Law

North Carolina allows an attested will to be proved without live witness testimony when the subscribing witnesses are unavailable. The clerk can accept proof of handwriting from nonexperts who are familiar with the person’s handwriting. When no subscribing witnesses can be reached, the clerk typically expects proof of the handwriting of at least two subscribing witnesses, proof of the testator’s signature, and any other evidence that convinces the clerk the will was duly executed. Affidavits can be taken before a notary where the affiant is located and transmitted to the clerk.

Key Requirements

• Unavailability of witnesses: Show a witness is out of state, cannot be found, is incompetent, unable, or refuses to testify.
• Handwriting familiarity: Affiants must have genuine familiarity with the handwriting they’re identifying; they need not be experts.
• Quantity of proof: If no subscribing witnesses are available, provide proof of the handwriting of at least two subscribing witnesses and the testator.
• Form and forum: Use the clerk’s affidavits for unavailable witnesses/handwriting and file in the Clerk of Superior Court.
• Other corroboration: Be ready to supply additional facts that satisfy the clerk the will was duly executed (for example, a detailed attestation clause).

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-8 (Manner of proving attested wills) – Allows probate by handwriting proof when witnesses are unavailable.
• North Carolina Gen. Stat. § 28A-2A-16 (Affidavits of witnesses) – Permits witness examinations by affidavit before a local notary and transmission to the clerk.
• North Carolina Gen. Stat. § 31-46 (Validity of out-of-state wills) – Recognizes wills validly executed under the law of the place of execution or domicile.
• North Carolina Gen. Stat. § 28A-2A-17 (Probate of nonresident’s will) – Allows probate in NC based on a certified copy if first probated elsewhere.

Analysis

Apply the Rule to the Facts: Your witnesses are abroad and unavailable, which meets North Carolina’s unavailability standard. You can use family members who know the witnesses’ handwriting to sign affidavits; they do not need to be handwriting experts. If no subscribing witnesses are available, plan to provide handwriting proof for at least two subscribing witnesses plus the testator. Because the decedent lived abroad, the affidavits can be notarized where the affiants reside and sent to the North Carolina clerk.

Process & Timing

1. Who files: The named executor or other interested party. Where: Clerk of Superior Court in the North Carolina county with estate venue (for nonresidents with NC assets, in the county where the property is). What: Application (AOC-E-201), plus AOC-E-301 (Affidavits for Probate of Will – Witness(es) Not Available) with handwriting affidavits; use AOC-E-300 if any subscribing witness is available; if relying on an out-of-state execution, add AOC-E-309. When: If you are the named executor, present the will within 60 days of death; others may apply after giving 10 days’ notice if the executor does not act.
2. The clerk reviews the will and affidavits. If satisfied as to due execution, the clerk admits the will to probate and issues a certificate. Timelines can vary by county and completeness of your filings.
3. Final step: The clerk enters AOC-E-304 (Certificate of Probate). If qualifying, you’ll take the oath and the clerk issues Letters Testamentary.

Exceptions & Pitfalls

• If the will is self-proved: You do not need witness or handwriting affidavits; the clerk can admit it based on the self-proving certificate.
• Interested family affiants: Relatives who are beneficiaries can give handwriting opinions, but the clerk may seek additional corroboration; use disinterested affiants when possible.
• Insufficient familiarity: Affiants must explain how they know the handwriting; general acquaintance is not enough.
• Affidavit formalities: Have affidavits notarized where the affiant is located and transmitted to the clerk; incomplete or improperly notarized affidavits can delay probate.
• Nonresident decedent: If the will was already probated abroad, consider filing a certified copy in the NC county where the property is; otherwise be prepared to establish validity under the law of the place of execution or domicile.

Talk to a Probate Attorney

If you’re facing probate with unavailable will witnesses and need to prove handwriting, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

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.