How do I make my will self-proving so it is easier to accept later? – North Carolina

Short Answer

Under North Carolina law, a will becomes self-proving when the testator and the required witnesses sign sworn statements (affidavits) in front of a notary or other officer authorized to administer oaths, using the statutory self-proving form or a similar form. The will still must be properly signed and witnessed first, but the self-proving affidavits allow the clerk of superior court to accept the will for probate without having to locate and examine the witnesses later. Witnesses must be legally competent; North Carolina does not set a different, lower minimum age for a “second witness.”

Understanding the Problem

The question is how someone in North Carolina can make a will “self-proving” so that the clerk of superior court can accept it more easily in a future probate case. This comes up when a person is signing a new will and wants to reduce headaches for family later. The concerns include who can act as a witness, whether a second witness may be younger than the first, and what signing steps must occur in front of a notary or other officer. The focus is on the single decision whether to add the proper self-proving language and affidavits at the time the will is signed or later, so that the will is more straightforward to admit when the time comes.

Apply the Law

North Carolina law first requires that a will itself be validly executed, and then allows that valid, attested will to be made self-proving by adding sworn statements from the testator and witnesses. The clerk of superior court in the county where probate is opened is the main forum that will rely on the self-proving provisions. There is no fixed deadline to add a self-proving affidavit; a qualifying will can be made self-proved either at the time of execution or at any time afterward, as long as the testator and witnesses are able to appear before an appropriate officer.

Key Requirements

Valid attested written will: The will must be in writing, signed by the testator (or by someone at the testator’s direction and in the testator’s presence), and attested by at least two competent witnesses who sign in the testator’s presence as required by North Carolina law on attested written wills.
Competent witnesses: Each witness must be generally competent to testify in North Carolina. The statute does not impose a special, different minimum age for a second witness; both witnesses must meet the same general competency standard.
Self-proving affidavits before an authorized officer: The testator and witnesses must acknowledge and swear to specific facts about the execution of the will before a notary or other authorized officer, using the statutory self-proving form or a substantially similar form, so the will qualifies as “self-proved” under North Carolina law.

What the Statutes Say

N.C. Gen. Stat. § 31-3.1 (Will invalid unless statutory requirements complied with) – States that a will is not valid unless it follows the statutory execution requirements.
N.C. Gen. Stat. § 31-3.3 (Attested written will) – Defines how a written will must be signed and witnessed to be valid.
N.C. Gen. Stat. § 31-8.1 (Who may witness) – Provides that anyone generally competent to be a witness in North Carolina may witness a will.
N.C. Gen. Stat. § 31-11.6 (How attested wills may be made self-proved) – Explains how a valid attested will can be made self-proving, either at execution or later, using affidavits in front of an authorized officer and provides model certificate language.

Analysis

Apply the Rule to the Facts: The facts describe a person preparing a North Carolina will and asking both about witness requirements and about making the will easier to accept later. Under the statutes, that person needs at least two competent witnesses for an attested will; there is no looser standard for a second witness. Once the will is properly signed and witnessed, the testator and both witnesses can appear before a notary or similar officer to sign the self-proving affidavits in the statutory form or a similar form, which will allow the clerk of superior court to admit the will without later testimony from the witnesses.

Process & Timing

Who files: After death, the person holding the original will (often the named executor) presents it. Where: Office of the Clerk of Superior Court in the North Carolina county where the decedent resided. What: The original self-proved will, along with the probate application forms required by that clerk’s office. When: As soon as practical after death; local practice may expect filing within a few weeks.
The clerk reviews the will to confirm that it appears valid on its face and that the self-proving certificate meets statutory standards. If the will is self-proved, the clerk can usually admit it in common form based on the self-proving affidavits, without bringing in the witnesses.
Once admitted, the clerk issues orders opening the estate and qualifying the personal representative. Certified copies of the will and qualification documents then allow the representative to work with financial institutions and others.

Exceptions & Pitfalls

A will that is not validly executed under the attested-will statute cannot be “fixed” by attaching a self-proving affidavit; the underlying execution must meet the statutory requirements.
If a witness is not competent under North Carolina evidence rules (for example, due to age or mental incapacity), that person cannot serve as a proper attesting witness, and the will may be vulnerable to challenge.
Failing to have the testator and both attesting witnesses appear in front of the notary or other authorized officer at the same time, or using a form that does not cover the key statutory statements, can lead to a certificate that does not qualify as self-proving.
Relying on an out-of-state self-proving form without checking whether it meets North Carolina recognition rules can cause issues if the will is later probated here.

Conclusion

To make a North Carolina will self-proving, the testator must first sign a written will that meets the attested-will requirements and is witnessed by at least two competent witnesses, both of whom meet the same competency standard. Then the testator and witnesses should sign self-proving affidavits in front of a notary or other authorized officer, using the North Carolina statutory form or a similar form. The practical next step is to arrange a single signing ceremony where the will and the self-proving affidavit are executed together before the notary.

Talk to a Estate Planning Attorney

If someone is preparing a North Carolina will and wants it to be self-proving, our firm has experienced attorneys who can help explain the witness rules and prepare the correct self-proving affidavits. 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.