What do I do if there is a drafted but unsigned will when someone dies? – North Carolina

Short Answer

In North Carolina, a drafted but unsigned will usually is not a valid will and cannot be probated as written. In most cases, the estate must be handled as an intestate estate (an estate “without a will”), and a personal representative must qualify through the Clerk of Superior Court. Even if the document is not valid, it can still be important for practical reasons (for example, identifying intended beneficiaries or the person the decedent wanted to serve), so it should be preserved and shown to the probate clerk and an attorney.

Understanding the Problem

When someone dies in North Carolina and leaves a will draft that was never signed, the key question is whether anything in that draft can be used to control who receives property or who has authority to act for the estate. This situation often comes up when a person becomes seriously ill, completes a draft will, but passes away before signing and having the will witnessed. The decision point is whether the paper qualifies as a legally valid will that the Clerk of Superior Court can admit to probate, or whether the estate must be handled as an estate without a will.

Apply the Law

North Carolina requires specific signing and witness formalities for most written wills. If those formalities were not completed, the document is usually not a “will” for probate purposes, and the estate is typically administered under intestate succession rules. Probate and appointment of a personal representative are handled in the Estates Division of the Clerk of Superior Court in the county where the decedent lived at death.

Key Requirements

Proper execution: A typical typed will must be signed by the testator (or signed for the testator in the testator’s presence and at the testator’s direction) and then properly witnessed.
Two competent witnesses: The will must be attested by at least two competent witnesses who sign in the testator’s presence.
Probate-ready original: For routine probate of an attested will, the clerk generally expects original signatures on the original instrument (not a draft and not a copy).

What the Statutes Say

N.C. Gen. Stat. § 31-3.1 (Will validity requires statutory formalities) – A will must comply with North Carolina’s statutory requirements to be valid.
N.C. Gen. Stat. § 31-3.3 (Attested written will requirements) – A written will generally must be signed and witnessed by at least two competent witnesses following the statute’s steps.

Analysis

Apply the Rule to the Facts: Here, the decedent had a drafted will but never signed it and never completed any witness signing. That usually fails the “proper execution” and “two witness” requirements for an attested written will in North Carolina, so the draft typically cannot be probated as a valid will. Because no valid will or power of attorney exists, someone will generally need to qualify as administrator through the Clerk of Superior Court to handle estate matters that require legal authority.

Process & Timing

Who files: A person with statutory priority (often a spouse, adult child, or parent, depending on who survives). Where: Estates Division, Clerk of Superior Court, in the North Carolina county where the decedent was domiciled. What: Typically an Application for Letters of Administration (commonly on AOC Form E-202), plus the death certificate and other required information. When: As soon as authority is needed to access accounts, handle title issues, or deal with creditors.
Consider whether a small-estate procedure fits: If the estate is small and qualifies, an “administration by affidavit” process may avoid a full qualification. If the estate later turns out to be larger than expected, the clerk can require a full administration.
Deal with immediate arrangements separately from probate authority: Final disposition (including cremation) can be authorized by the person with priority under North Carolina’s “authorizing agent” rules even before a personal representative qualifies. If there is no written authorization from the decedent, the law sets a priority list (for example, spouse first; if none, then certain family members in order) and includes a waiver rule if the higher-priority person does not act within a short timeframe.

Exceptions & Pitfalls

Do not rely on “intent” alone: A typed draft that clearly states wishes usually still fails if it was not signed and properly witnessed. Intent matters, but North Carolina generally requires the execution steps for an attested will.
Do not alter the draft: Marking it up, adding signatures after death, or separating pages can create avoidable disputes and confusion. Preserve what exists as-is.
Authority gaps are common: Without a valid power of attorney, no one can act “for” the decedent after death. Banks, landlords, and others often require letters of administration (or a small-estate affidavit if allowed) before releasing information or assets.
Bond and priority issues: In an intestate administration, the clerk may require a bond unless a statutory exception applies, and the clerk may require renunciations/waivers from others with equal priority before issuing letters.

Conclusion

In North Carolina, a drafted but unsigned will usually is not a valid will, so the estate typically proceeds as an intestate estate through the Clerk of Superior Court. The practical next step is to start the intestate qualification process by filing an Application for Letters of Administration with the Estates Division in the county where the decedent lived, so a personal representative has legal authority to handle the estate’s assets and obligations.

Talk to a Probate Attorney

If a family is dealing with a drafted but unsigned will, cremation decisions, and the need to open an estate, a probate attorney can help identify the fastest path to legal authority and avoid common filing and notice problems. 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.