What age must will witnesses be, and does that apply to both witnesses? – North Carolina

Short Answer

Under North Carolina law, every witness to a traditional written will must be legally competent to testify in court, which generally means at least 18 years old and of sound mind. That requirement applies to each of the two required witnesses, not just one of them. It is also best practice that witnesses not be major beneficiaries under the will.

Understanding the Problem

The narrow question here is: under North Carolina estate planning law, what minimum age and competency rules apply to witnesses for a will, and must both witnesses meet those same rules? A person preparing a will wants to know who can legally serve as the first and second witnesses at the signing so the will will stand up in probate. The focus is on a standard typed will that will be signed in front of witnesses, not on handwritten (holographic) or oral wills.

Apply the Law

North Carolina requires that a traditional (attested) will be signed by the person making the will in the presence of at least two competent witnesses, who then sign in that person’s presence. A “competent” witness is anyone who is legally allowed to testify in a North Carolina court, which in practice means an adult with mental capacity who understands the act of witnessing. The clerk of superior court in the county where the person dies is the main probate forum, and defective witnessing can cause delay or require additional proof.

Key Requirements

Competent witnesses: Each witness must be generally competent as a witness in North Carolina, which typically means at least 18 years old and mentally capable of understanding and recalling what happened at the signing.
Number of witnesses: A typed will must be signed by at least two such competent witnesses, and the same competency rule applies to both.
Signing formalities: The will-maker signs (or directs someone to sign) the will, and each witness signs in the will-maker’s presence, ideally with everyone present together and with no witness being a major beneficiary.

What the Statutes Say

N.C. Gen. Stat. § 31-8.1 (Who may witness a will) – provides that anyone generally competent to be a witness in North Carolina may act as a will witness.

Analysis

Apply the Rule to the Facts: For a North Carolina will to be validly witnessed, each of the two witnesses should be an adult who could testify in court about the signing. If one of the witnesses is under 18 or lacks mental capacity, that person may not count as a competent witness, which can leave the will with too few valid witnesses. Using two disinterested adult witnesses who understand their role helps the will hold up if it is ever challenged.

Process & Timing

Who files: After death, an interested party, often the named executor, files the original will. Where: With the Clerk of Superior Court, Estates Division, in the North Carolina county where the decedent lived. What: The original will, a death certificate, and required probate forms posted by the North Carolina Judicial Branch. When: As soon as practical after death; delays can make locating witnesses and proving the will more difficult.
The clerk reviews the will’s apparent validity, including witness signatures and any self-proving affidavit. If everything appears proper, the clerk issues letters to the personal representative, usually within days to a few weeks, depending on the county and workload.
The estate then proceeds through administration, with the will treated as valid unless a party files a caveat (will contest). If contested, witness age, competency, and what the witnesses observed at signing can become critical issues.

Exceptions & Pitfalls

North Carolina does recognize holographic wills (entirely in the testator’s handwriting) that do not need attesting witnesses, but those have strict separate requirements and are not the usual estate planning tool.
Using a minor or someone with obvious cognitive impairment as a witness can invite challenges to the will’s validity, especially if someone disputes what happened at signing.
Having a major beneficiary act as a witness can create conflicts and possible challenges, even though North Carolina law allows some interested witnesses; using disinterested adult witnesses is safer.
Improper signing sequence (for example, witnesses signing at different times or outside the will-maker’s presence) can undermine the will, even if the witnesses are old enough and competent.

Conclusion

Under North Carolina law, each witness to a standard written will must be a person generally competent to testify in court, which in everyday terms means an adult with mental capacity who understands the act of witnessing. The same rule applies to both required witnesses; if either witness is not competent, the will may not meet formal execution requirements. To protect the will, arrange a single signing where the will-maker and two competent, disinterested adult witnesses all sign together.

Talk to a Estate Planning Attorney

If a will is being prepared and there are questions about who can serve as valid witnesses under North Carolina law, our firm has experienced attorneys who can help explain the formalities and oversee a proper signing. 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.