Short Answer

In North Carolina, you contest a will by filing a “caveat” with the Clerk of Superior Court in the county where the will was probated. The clerk immediately transfers the case to Superior Court for a jury trial on whether the document is truly the decedent’s last will (“devisavit vel non”). Most caveats must be filed within three years after probate in common form; if the will is moving through solemn form, you must act before the clerk’s hearing.

Understanding the Problem

You are in North Carolina, and you want to challenge a spouse’s will in probate. The legal action is a will contest (called a “caveat”). The key decision is whether you can and should file a caveat now: who files (an interested person), where (Clerk of Superior Court), and when (within three years after probate in common form, or before any solemn form hearing if that path is used).

Apply the Law

North Carolina resolves will contests through a caveat. An “interested” person (someone with a direct financial stake) files the caveat with the Clerk of Superior Court in the county of probate. The clerk then transfers the case to the Superior Court for a jury to decide the single question of devisavit vel non—whether the paper is the decedent’s valid last will. The standard filing window is three years after probate in common form. If the will is being probated in solemn form, you must file the caveat before the clerk’s hearing or raise the issue at that hearing. After a caveat is filed, the personal representative may not distribute estate assets unless allowed by the clerk and after required notices.

Key Requirements

• Standing (Interested Person): You must have a direct, immediate financial interest in the estate that would be harmed or helped by setting aside the will (for example, a surviving spouse).
• Timing: File within three years after probate in common form; if probate proceeds in solemn form, file before the clerk’s hearing or raise the issue at that hearing.
• Forum and Filing: File the caveat with the Clerk of Superior Court in the county where the will was probated; the clerk transfers the case to Superior Court for a jury trial.
• Service and Notice: Serve the caveat on all interested parties under North Carolina Rule 4; the clerk notes the caveat and restricts estate distributions while the case is pending.
• Grounds: Common grounds include improper execution, lack of testamentary capacity, undue influence, fraud, forgery, mistake, or revocation by a later will.

What the Statutes Say

• N.C. Gen. Stat. § 31-32 (Caveat; who may file; deadline) – Any interested person may file; generally within three years after probate in common form.
• N.C. Gen. Stat. § 31-33 (Procedure upon filing caveat) – Clerk transfers to Superior Court for jury trial; Rule 4 service and party alignment.
• N.C. Gen. Stat. § 31-36 (Estate administration during caveat) – Personal representative may not distribute assets; limited payments require notice and, if objected to, a hearing.
• N.C. Gen. Stat. § 28A-2A-7 (Probate in solemn form) – If the will is probated in solemn form, a caveat must be filed or the issue raised before the clerk’s hearing; proper service makes the result binding.

Analysis

Apply the Rule to the Facts: As a surviving spouse in North Carolina, you are an “interested person,” so you have standing to file a caveat. If the will has already been probated in common form, your filing window is generally three years from that probate date. If instead the executor petitions for solemn form probate, you must file the caveat before the clerk’s hearing or raise the issue there. Once you file, the case moves to Superior Court for a jury trial, and the estate’s distributions are paused.

Process & Timing

1. Who files: Any interested person (e.g., a surviving spouse). Where: Clerk of Superior Court in the county where the will was probated in North Carolina. What: A written “Caveat” to the probate of the will (there is no standard AOC caveat form). When: Within three years after probate in common form, or before the clerk’s hearing in a solemn form proceeding.
2. After filing, the clerk transfers the matter to the Superior Court and issues summonses for Rule 4 service on all interested parties. The court will schedule party alignment, discovery, and typically mediation. Timelines vary by county and court calendars.
3. The Superior Court holds a jury trial on devisavit vel non. The judge then enters judgment either sustaining or setting aside the will and returns the case to the clerk to administer the estate consistent with the judgment.

Exceptions & Pitfalls

• If the will was admitted in solemn form and you were properly served, you cannot file a later caveat.
• Missing the three-year deadline generally bars the claim; limited extensions exist for legal disabilities, and tolling is rare.
• Serve all interested parties under Rule 4; defective service can undermine the case or finality.
• If you know about another will or codicil, present it in the caveat; failing to do so can bar a later attempt to probate it.
• After a caveat is filed, the personal representative may not distribute assets; any proposed payments usually require notice, potential objections, and clerk approval.
• Settlements are allowed but must be approved by a Superior Court judge and entered as a judgment; you cannot simply dismiss a caveat by agreement.

Talk to a Probate Attorney

If you’re dealing with a disputed will and need to contest it, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

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.