Can I file the will with the court and try to probate it even if it might be rejected? – North Carolina

Short Answer

Yes. In North Carolina, a will can be presented to the Clerk of Superior Court for probate even if there are concerns about whether it meets the signing and witness requirements. The Clerk will review the document and the available proof (often witness affidavits or a self-proving affidavit) and will either admit the will to probate or decline it if the legal requirements are not met. Filing sooner rather than later can matter because probate affects how title passes and can start important timelines for will challenges.

Understanding the Problem

In North Carolina probate, the key question is whether a family member or named executor can take a will to the Clerk of Superior Court and ask the Clerk to accept it for probate even when the will’s signatures look incomplete or inconsistent. The decision point is whether the document can be treated as a valid will under North Carolina’s execution rules, or whether the Clerk will require more proof or refuse to admit it. This situation often comes up when the last page is signed and notarized, but other pages or signature blocks appear blank or only partially completed.

Apply the Law

North Carolina generally allows probate of an attested written will when the will was signed by the testator (the person who made the will) and properly witnessed by at least two competent witnesses. If the will includes a valid “self-proving” affidavit, the Clerk can usually admit it without tracking down the witnesses. If the will is not self-proved, the Clerk typically requires witness testimony/affidavits (and, in some situations, handwriting proof and other evidence) before admitting it. The main forum is the Clerk of Superior Court (Estates) in the county with proper estate jurisdiction.

Key Requirements

Proper signing by the testator: The will must be signed by the testator (or signed for the testator in the testator’s presence and at the testator’s direction) with intent to sign the will.
Two-witness attestation: The testator must signify to the witnesses that the document is the testator’s will, and at least two competent witnesses must sign in the testator’s presence.
Proof acceptable to the Clerk: If the will is self-proved, the self-proving affidavit can serve as the proof. If it is not self-proved, the Clerk may require witness affidavits/testimony and, if witnesses are unavailable, additional proof to satisfy the Clerk that the will is genuine and was duly executed.

What the Statutes Say

N.C. Gen. Stat. § 31-3.3 (Attested written will) – Defines the core signing and two-witness requirements for a standard written will.
N.C. Gen. Stat. § 31-11.6 (Self-proved wills) – Explains how a will can be made self-proved through a notarized acknowledgment/affidavit so the Clerk can accept it without additional witness testimony in many cases.
N.C. Gen. Stat. § 31-39 (Probate necessary to pass title; time limits) – Explains why probate matters for passing title and includes a key time limitation affecting lien creditors and purchasers.

Analysis

Apply the Rule to the Facts: The facts describe a will that is signed and notarized on the last page, but may not be fully signed in all sections. Under North Carolina law, the Clerk’s focus is usually not whether every signature block in the document is filled in, but whether the will was actually signed by the testator with intent to sign and properly witnessed by at least two competent witnesses (or whether it is self-proved). If the notarization is part of a proper self-proving affidavit that includes the required witness statements, the will may be easier to admit; if not, the Clerk may require witness affidavits/testimony or other proof and may reject the will if the execution requirements cannot be shown.

Process & Timing

Who files: Commonly the person named as executor in the will (or another interested person if needed). Where: Clerk of Superior Court (Estates) in the county with jurisdiction over the estate in North Carolina. What: The original will (not a copy, unless a specific exception applies), a certified death certificate when available, and any required probate application forms and witness affidavits if the will is not self-proved. When: As soon as practical after death, especially if estate assets need to be accessed or protected.
Clerk review and proof: The Clerk reviews the will for compliance. If the will appears self-proved, the Clerk may admit it without locating witnesses. If it is not self-proved, the Clerk typically requires affidavits/testimony from witnesses (and if witnesses are unavailable, the Clerk may require additional proof to establish due execution).
Admission or refusal; next steps: If admitted, the estate can move forward with qualification of a personal representative and administration. If not admitted, the family may need to locate witnesses, gather additional proof, or consider whether an intestate estate (no valid will) must be opened instead. If the will is admitted and later challenged, the dispute can proceed through the will-contest process in the proper forum.

Exceptions & Pitfalls

Notarized does not always mean “self-proved”: A notary stamp on the last page is helpful only if the document includes the required self-proving language and witness affidavits in a form that satisfies North Carolina’s self-proving statute.
Witness problems: If the will is not self-proved and witnesses cannot be found or are out of state, the Clerk may require alternative proof. Waiting too long can make witnesses harder to locate.
Filing the wrong document: The Clerk generally expects the original will. Submitting only a copy (or an incomplete version) can delay probate or lead to rejection unless a specific procedure applies.
Assuming probate is “all or nothing”: Even if the will is questioned, offering it for probate can be the step that clarifies what proof is missing and what the Clerk will require before the estate can move forward.

Conclusion

North Carolina allows a will to be offered to the Clerk of Superior Court for probate even when there is a real risk the Clerk may require more proof or may reject it for improper execution. The controlling issue is whether the will was signed by the testator and properly witnessed by at least two competent witnesses, or qualifies as a self-proved will. A practical next step is to file the original will with the Clerk of Superior Court (Estates) promptly after receiving the death certificate, and be prepared to provide witness affidavits if the will is not self-proved.

Talk to a Probate Attorney

If you’re dealing with a will that may have signature or witnessing problems and need to decide whether (and how) to offer it for probate in North Carolina, our firm has experienced attorneys who can help explain the process, the proof the Clerk may require, and the timelines to watch. 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.