Jan52026
Probate Q&A Series

If there are two wills, how do I figure out which one controls the estate? – North Carolina

Short Answer

In North Carolina, the will that controls is the one the Clerk of Superior Court admits to probate as the decedent’s last valid will. When there are two wills, the later-dated will often controls, but only if it was properly executed and not invalid due to issues like lack of capacity, undue influence, or fraud. If an interested person challenges the later will, the dispute can be transferred to Superior Court in a will contest (a caveat/devisavit vel non proceeding) so the court can decide which document, if any, is the true will.

Understanding the Problem

When a parent dies leaving two different will documents in North Carolina, the key question becomes: which document is the parent’s last valid will that the Clerk of Superior Court should recognize for estate administration. The decision point is whether the later document should be treated as the controlling will, or whether it should be rejected so an earlier will (or no will) controls. Concerns often arise when the later will was signed shortly before death, names a new executor, or appears connected to pressure from someone close to the decedent.

Apply the Law

North Carolina probate starts with the Clerk of Superior Court, who has exclusive original jurisdiction over probate and estate administration. A will controls the estate only after it is admitted to probate. If more than one will exists, the clerk’s job is to decide whether the offered document is the decedent’s last will and whether there is enough proof to admit it. If an interested person formally contests validity, the matter can move into a will contest process where the court determines whether the decedent made a will and, if so, which script is the will.

Key Requirements

  • Probate forum and admission: The controlling will is the one admitted to probate by the Clerk of Superior Court (and later upheld if contested).
  • Valid execution and validity: The will must meet North Carolina’s validity rules (including recognition of certain out-of-state execution rules) and must not be invalid due to problems like lack of capacity, undue influence, or fraud.
  • Last will determination (multiple scripts): If multiple documents purport to be wills, the process must determine which document is the true last will (or whether no valid will exists).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an older will and a later will signed shortly before death, with concerns about undue influence and a new executor who is not a family member. Under North Carolina practice, the later will may be offered for probate as the “last will,” but it controls only if the Clerk admits it to probate and it survives any will contest. If an interested person believes the later will resulted from undue influence or the parent lacked capacity (including dementia-related concerns), that person can challenge the later will so the court can decide which will, if any, is valid and controlling.

Process & Timing

  1. Who files: The named executor in the later will, a beneficiary, or another interested person. Where: The Clerk of Superior Court in the county with jurisdiction over the estate in North Carolina. What: A probate application (commonly filed on North Carolina AOC estate forms, such as an application for probate and letters). When: As soon as practical after death; if there is a dispute, timing matters because estate administration can move quickly once letters issue.
  2. Clerk review and admission: The clerk reviews the will and supporting proof to decide whether there is sufficient proof of due execution and that the document is the decedent’s last will. If the clerk admits the will, the original will stays with the clerk as a court record, and the estate proceeds under that will unless a contest is filed.
  3. If there is a contest: An interested person can file a will contest (caveat) or raise the issue of devisavit vel non (the question of whether the writing is the last will). When that issue is properly raised, the matter is transferred to Superior Court for the will contest process, and all scripts that may be material to deciding “which will” should be brought forward in that proceeding so the court can determine which document, if any, is the will.

Exceptions & Pitfalls

  • Challenging one will but ignoring another: In multiple-will situations, a common pitfall is focusing only on setting aside the will already admitted to probate and failing to put the alternate will before the court during the contest. If the challenged will falls and no other will is established, the estate can end up passing by intestacy (or partial intestacy), which may defeat the intended plan.
  • Executor choice versus will validity: A new, unrelated executor named in a later will can be a red flag for family conflict, but the executor choice alone does not invalidate a will. The challenge usually turns on execution, capacity, undue influence, or fraud.
  • Power of attorney confusion: A power of attorney generally ends at death, but actions taken under it before death can still matter. Concerns about dementia and a family member arranging a power of attorney often point to a separate issue: whether pre-death transactions were authorized and properly documented. That issue may require an estate proceeding focused on fiduciary conduct, separate from (but sometimes related to) the will contest.
  • Local procedure and proof problems: Probate proof issues (missing witnesses, unclear execution details, or questions about whether the offered document is the last will) can change the path quickly. If the clerk declines to admit a will, the estate may proceed differently unless the decision is challenged through the proper process.

Conclusion

In North Carolina, the controlling will is the one the Clerk of Superior Court admits to probate as the decedent’s last valid will, and that decision can be challenged through a will contest if there are concerns like undue influence or lack of capacity. When two wills exist, the later will often controls only if it is valid and truly the last will. A practical next step is to file the appropriate probate paperwork with the Clerk of Superior Court and, if validity is disputed, raise the will contest issue promptly so all will documents can be addressed in one proceeding.

Talk to a Probate Attorney

If there are two wills and questions about undue influence, capacity, or who should serve as executor, a probate attorney can help clarify the process, deadlines, and the best way to present the competing documents to the court. 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.

Category: Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.