Jan162026
Probate Q&A Series

What can I do if a relative opened probate using an older will, but I have a newer will that names me as a beneficiary? – North Carolina

Short Answer

In North Carolina, the usual way to challenge an estate opened under an older will when a newer will exists is to file a caveat in the decedent’s estate file with the Clerk of Superior Court. A caveat is the formal will-contest procedure, and it can be filed at probate or within three years after probate in common form. Once a caveat is filed, the dispute is transferred to Superior Court for a jury trial, and the Clerk typically enters an order that helps prevent distributions while the case is pending.

Understanding the Problem

In North Carolina probate, the key question is: can an “older will” that a relative used to open the estate be replaced by a “newer will” that changes who inherits? This issue usually comes up when an estate is opened through the Clerk of Superior Court, an older will is admitted, and another interested person later produces a different will signed later in time. The practical trigger is the estate opening and the will being admitted to probate, because that starts the process for challenging which document controls the estate.

Apply the Law

North Carolina gives the Clerk of Superior Court exclusive original jurisdiction over probate, but a will contest (a caveat) is a special proceeding that moves to Superior Court for trial. When two wills exist, the core legal issue is which document is the decedent’s valid last will. A newer will generally controls if it was properly executed and not invalid for other reasons, but the court system requires a formal process to set aside the earlier probate and determine the valid will.

Key Requirements

  • Standing (“interested party”): The person filing must have a real stake in the estate (for example, being named in the newer will or being an heir if there were no will).
  • Timely caveat filing: If the will was probated in common form, a caveat generally must be filed within three years after that probate (with limited extensions for certain disabilities).
  • Proof issues (validity and “last will”): The case focuses on whether the will offered for probate was properly executed and whether another will (such as a later “homemade” will) is actually valid and later in time.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, a relative opened the estate using an older will that cuts the client out, and the client has a newer “homemade” will that includes the client. If the client is named in the newer will, that usually makes the client an “interested party” with standing to challenge the older will’s probate. The main legal move is to file a caveat so the court can decide whether the older will should be set aside and whether the newer will is valid and truly later in time.

Process & Timing

  1. Who files: An interested party (often a beneficiary under the newer will). Where: The decedent’s estate file with the Clerk of Superior Court in the county where the estate is opened. What: A caveat filing that identifies the will being challenged and the grounds for contesting it. When: If the will was probated in common form, generally within three years after probate.
  2. Transfer and service: After the caveat is filed, the Clerk transfers the case to Superior Court for a jury trial, and the caveat must be served on interested parties under the civil rules. The court then holds a hearing to align interested parties on the “propounder” side (supporting the older will) or the “caveator” side (challenging it).
  3. Estate administration while pending: During the caveat, the Clerk issues an order that typically prevents distributions to beneficiaries and limits commissions, while still allowing the personal representative to preserve assets, file required accountings, and pay certain necessary expenses through a notice-and-objection process.

Exceptions & Pitfalls

  • “Homemade” does not automatically mean “invalid,” but execution details matter: A later will still has to meet North Carolina’s execution requirements, and missing witnesses or unclear signatures can become the central fight.
  • Solemn-form probate can cut off later challenges: If the will was probated in a procedure that properly served interested parties and resulted in a binding determination, later caveats may be barred for those properly served.
  • Delay can create practical damage even before the deadline: Even though the caveat deadline can be years, waiting can allow assets to be moved, records to get harder to obtain, and disputes to escalate. Early action also helps trigger the statutory protections that limit distributions while the caveat is pending.

Conclusion

When a relative opens a North Carolina estate under an older will but a newer will exists that changes who inherits, the usual remedy is to file a caveat in the estate file with the Clerk of Superior Court so the dispute can be transferred to Superior Court for a jury to decide which will controls. In most common-form probates, the caveat must be filed within three years after probate. The next step is to file the caveat in the estate file and promptly serve all required interested parties.

Talk to a Probate Attorney

If a relative opened an estate under an older will and a newer will exists that names a different beneficiary, our firm has experienced attorneys who can help explain the caveat process, the proof issues, and the timelines. 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.