Short Answer

In North Carolina, life insurance passes to the named beneficiaries on the policy, not under a will, so your spouse’s share depends on the policy designation—not which will was probated. Rights to the house promised in a later will require getting that later will admitted or the earlier will set aside. If an older will was already probated, an interested person must file a will caveat in Superior Court within three years and can ask the Clerk to compel anyone holding the later will to produce it.

Understanding the Problem

In North Carolina probate, can your spouse (the child of the decedent) still claim (1) a life insurance share and (2) a specific house mentioned in a later will when relatives probated an older will first? One key fact: the older will has already been probated by family members.

Apply the Law

Under North Carolina law, life insurance proceeds are paid based on the policy’s beneficiary form; they generally pass outside probate and are not controlled by a will. Real estate devised in a will only passes as written if that will is admitted to probate. When an older will has been admitted in common form and a later will exists, the proper way to challenge the admitted will and establish the later will is a caveat (a will contest) that is filed with the Clerk of Superior Court and tried in Superior Court. If someone is withholding the later will, you can ask the Clerk to order that person to produce it. The Clerk’s office is the initial forum for probate and related applications; a caveat is transferred to Superior Court for a jury determination. A caveat must be filed within three years of the earlier will’s probate in common form.

Key Requirements

• Standing: Your spouse must be an “interested person” (for example, a child/heir or a devisee named in the later will) to challenge the admitted will.
• Deadline: File a caveat within three years after the older will was probated in common form.
• Proper forum and process: File the caveat with the Clerk of Superior Court; it will be transferred to Superior Court for trial, with service on all interested parties.
• Access to the later will: If someone is holding the later will, apply to the Clerk to compel production so it can be considered in the caveat.
• Proof issues for a copy: If only a copy of the later will exists, be prepared to prove a “lost will” (death, due execution, contents, loss not due to revocation, and diligent search).
• Life insurance is separate: Confirm and claim the policy share directly from the insurer; a will typically cannot change a valid beneficiary designation.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Time to file a caveat) – A caveat must be filed within three years after probate in common form.
• North Carolina Gen. Stat. § 31-33 (Caveat procedure) – The Clerk transfers the caveat to Superior Court for jury trial; interested parties are served.
• North Carolina Gen. Stat. § 28A-2A-4 (Compel production of a will) – The Clerk may summon a person to produce a will or disclose its whereabouts.
• North Carolina Gen. Stat. § 28A-2A-12 (Effect of probate in common form) – Probate stands unless vacated on appeal or set aside in a proper proceeding.

Analysis

Apply the Rule to the Facts: The life insurance should be paid to the beneficiaries listed on the policy, which reportedly names the children in equal shares; a later will does not override that designation. For the house, because an older will was already probated, your spouse’s path to the devise in the later will is to file a caveat within three years and present the later will in that proceeding. If a family friend is holding the later will, your spouse can ask the Clerk to compel production so the court can consider it. Being named power of attorney does not create post‑death rights; inheritance depends on the will the court upholds.

Process & Timing

1. Who files: Your spouse (as an interested person). Where: Clerk of Superior Court in the North Carolina county where the will was probated. What: (a) Request a copy of the probate file; (b) file an application by affidavit to compel production of the later will if someone is withholding it (no standard AOC form). When: Do this promptly to prepare for a caveat.
2. Who files: Your spouse. Where: Same Clerk’s office (the caveat is then transferred to Superior Court). What: File a “Caveat” to contest the admitted will and establish the later will; all interested parties are served under Rule 4. When: Within three years after the older will was probated in common form.
3. Final step: The Superior Court decides which instrument is the decedent’s true last will. If the later will is upheld (or a copy is admitted as a lost will), it is probated in solemn form and the house devise can be honored. Separately, your spouse should submit a claim to the life insurer for the beneficiary share.

Exceptions & Pitfalls

• Power of attorney authority ends at death; it does not confer inheritance rights.
• If only a copy of the later will exists, you must meet stricter “lost will” proof to admit it.
• The Clerk cannot set aside a previously probated will just because a later will surfaces; you must caveat.
• Service matters: all interested parties must be properly served; missing someone can complicate or reopen proceedings.
• A will generally cannot change life insurance beneficiaries; disputes over a changed designation involve a separate civil action, not the caveat alone.

Talk to a Probate Attorney

If you’re dealing with a later will, withheld documents, and questions about a life insurance share, 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.